Real Estate

This is a core area of Maitland’s expertise in the real estate field.  We have a deep and wide experience of all aspects of the issues that arise in commercial and residential disputes.  Our approach is to analyse the technical aspects of an issue and offer pragmatic and commercial advice and representation.

In recent years, our strength and depth has allowed us to offer our services in covering both established and original issues that have arisen from the challenging economic environment.  Our barristers have been involved in leading cases in relation to:

• recovery of rent as an expense of administration
• liability for high value terminal dilapidations, and
• liability under guarantees and the Landlord and Tenant (Covenants) Act 1995.

Just as ready to deal with matters in the County Court as the Supreme Court, our barristers frequently assist in all aspects of the recovery of the possession of land, from the largest industrial sites to the smallest residential dwelling.

We provide a rapid response to the needs of our clients.  That often involves a quick turnaround of work, answering questions relating for example to the service of break notices, applications to alienate, or the service of consultation notices in the context of service charges.

Large or small, every client, both professional and lay, receives the same level of service, scrupulous attention to detail, and appreciation of the commercial realities of any dispute.

In recent years, Maitland has both advised and represented clients of all sizes (from FTSE 100 quoted companies to small single-site ventures) in relation to all relevant steps in the property development process: from financing and site assembly (including advice on adverse third-party rights) through to the interpretation and enforcement of purchase and building contracts, joint venture and overage agreements.  These are all areas in which Maitland has particular and extensive expertise and experience.

Our barristers have also been involved in some of the most recent and important cases in relation to adverse third-party rights over development land.  

The interpretation of contracts and provisions lies at the heart of much of the work that we do.  That necessarily includes the consideration of questions of construction, but also the difficult area of rectification, both areas in which leading Maitland barristers have been involved in advising and representing clients in the recent past.  Such contracts include those granting options and providing for overage and claw-back, those creating joint ventures, and those providing for the disposition and development of land.

Drawing on the strong cross-disciplinary abilities and experience of our barristers, we are often asked to advise on broader commercial disputes in the real estate sphere: that may involve the law of joint venture and partnerships (including LLPs), fiduciary duties (including commissions and secret profits) and related remedies including the obtaining of freezing injunctions.

Advice on and representation in relation to third party rights is one of the central features of our work, including;

• Adverse rights and choice of remedies
• Adverse Possession
• Compensation under statutory schemes
• Easements and other prescriptive rights
• Restrictive covenants (including interpretation, enforcement, release and modification)
• Rights of light

We are often asked to, and do, turn work around rapidly (often in relation to the obtaining of interim remedies), acknowledging and engaging with commercial realities and clients’ priorities.

Registration is a key area in which Maitland barristers specialise, dealing with claims under the Land Registration Act 2002 and the land registration system which preceded it.

Barristers also advise and represent clients in connection with claims concerning unregistered land and the interface with the registered system.

The areas with which we deal regularly include:

• Adverse possession
• Alteration or rectification of the register
• Indemnity
• Forged or other fraudulent dispositions
• Overriding interests
• Priorities and unprotected interests

Land registration issues can arise in self-contained litigation or as aspects in the many other areas in which Maitland barristers specialise including corporate or individual insolvency, landlord and tenant disputes, easements, restrictive covenants and priorities in legal charge and mortgage disputes.  Our barristers can advise and represent clients across the landscape of issues that can arise.  We also have expertise in claims for the registration of a village green under the Commons Act 2006.

Our barristers appear in the First Tier Tribunal (Property Chamber), the Upper Tribunal (Land Chamber) as well as in the Business and Property Courts in the High Court, the County Court and on appeal.

We have a long-established track record in professional negligence claims against, particularly, solicitors, surveyors, valuers and project monitors in both residential and commercial property transactions, including mortgage fraud.

Our barristers have been involved in leading cases in these areas at all judicial levels and in arbitrations.

We are instructed on behalf of, and act for, claimants or defendants and have considerable experience in advising upon, maintaining, and defending claims for breach of contractual, tortious and fiduciary duties and proprietary remedies.  We are also experienced in advising on discrete issues involving contributory negligence, contribution, limitation, causation, scope of duty, quantification of damages, and indemnity coverage.

In the context of real estate, professional negligence claims can arise in a range of diverse contexts, such as development, overage, option and pre-emption agreements, conveyancing, easements and restrictive covenants, imperfect securities, landlord and tenant and valuation.  We have the depth of experience to deal with this whole spectrum of real estate issues.

We also have contributors to the leading practitioner texts in the field, such as Simpson on Professional Negligence and Liability, and Flenley and Leech on The Law of Solicitors' Liability.

Property litigation frequently involves issues of corporate and individual insolvency.  This was undoubtedly the case during and following the 2007-2008 crash and it is a feature of the post-pandemic era.

Our barristers have expertise and experience not just in property litigation but also in insolvency and restructuring generally and so are well placed to provide the best advice and representation in these increasingly frequent disputes.  Issues can arise in administration claims as well as restructuring or restructuring plans, as well as winding up and bankruptcy.  On these occasions, when the case demands it, we can provide both specialist property and insolvency barristers.

The specific areas of insolvency-related real estate litigation in which our barristers advise and represent clients include

• CVAs and challenges
• Disclaimer
• Forfeiture
• Guarantors including AGAs and GAGAs
• Possession claims against bankrupts and third party claimants
• Restoring companies to the register
• Restructuring under Part 26 and plans (convention and sanction) under Part 26A of the Companies Act 2006
• Vesting orders

Our barristers have significant experience and expertise in the specialist field of telecommunications-related property disputes, advising and representing both operators and landowners.

This field has become increasingly important and contentious in recent years as the effect of the new Electronic Communications Code is worked out.  It is likely to remain important for many years to come as mobile telecommunications operators upgrade their infrastructure to make it ready for 5G and beyond.

Under the old Electronic Communications Code, our barristers acted in many claims for the removal or lifting-and-shifting of apparatus.

Since the coming into force of the new Code, our barristers have appeared in some of the most significant cases in the Upper Tribunal (Cornerstone v London & Quadrant) and the Court of Appeal (Cornertone v Ashloch, On Tower UK Ltd v JH and FW Green Ltd) as well as being instructed on an application to intervene in the forthcoming appeal to the Supreme Court in Cornerston v Compton Beauchamp.

We also have experience of general litigation where the Electronic Communications Code forms the backdrop to the claim, e.g. PG Lewins Ltd v EE and H3G UK (no statutory immunity defence in claim to enforce a lift-and-shift agreement).

We have significant expertise in the issues which may arise in relation to the exploitation of natural resources, and the wider commercial utilisation of land.

By way of example, in recent years Maitland barristers have acted in matters including:

• Bocardo SA v Star Energy UK Onshore Ltd, including before the Supreme Court (ownership and possession of substrata and minerals at common law, approach to assessment of compensation under the Mines (Working Facilities and Support) Act 1966)
• Tarmac Aggregates Ltd v Network Rail Infrastructure Ltd (mineral workings near railways, mining code)
• Ineos PLC v National Trust for Places of Historic Interest or Natural Beauty (compensation under the Mines (Working Facilities and Support) Act 1966 in relation to onshore oil exploitation)
• Graham v Star Energy Group Ltd (storage of gas in worked natural reservoir)
• A confidential arbitration concerning the operation and restoration of a quarry pursuant to leasehold covenants
• A confidential arbitration alleging breach of leasehold covenants relating to the operation and restoration of a major landfill site

We are very familiar with advising on and litigating matters under the various relevant statutory schemes and the mining codes, including matters relating to compulsory purchase.

We have a wealth of experience in dealing with the issues which arise in practice concerning highways and waterways, both in the context of the development and commercial utilisation of land, and generally.

By way of example, in recent years, Maitland barristers have advised on and litigated issues and disputes including as to the extent of highway, alleged obstruction of highway, stopping up and diversion of highway, responsibility for repair of canal bridges, rights of discharge, responsibility for damage and liability for remediation works relating to flooding, and navigation rights.