Andrew Skelly

Areas of expertise

• Property
  • Commercial landlord & tenant

    Commercial landlord & tenant

    Andrew has considerable experience of commercial landlord and tenant work. He has particular expertise advising and representing Local Authorities in relation to their commercial premises, on issues such as lease renewal, service charges, dilapidations, rent review, alienation, forfeiture, injunctions, trespass, and construction of clauses.

    Although Andrew is more frequently instructed on behalf of landlords, he is equally happy to receive instructions on behalf of tenants, and has significant experience of litigation involving cases of wrongful forfeiture, relief from forfeiture, and mandatory injunctions.

    Recently Andrew has been involved in drafting leases and licences for a retail ‘village’, and a waste processing plant.

    Recent Work

    • Macintosh Village (Management) Limited v GMS (Parking) Limited: Advised Macintosh Village (Management) Limited (“MVML”) as the residents’ management company of an estate known as Macintosh Village in Manchester town centre.  The wider estate contains some 280 apartments, houses and commercial premises. In addition, there is a car park owned by GMS (Parking) Limited. GMS was planning to redevelop the Car Park land by the construction of a 55-storey tower block. In order to do so, it planned partly to demolish the Car Park, reducing the capacity to 102 spaces.  MVML was opposed to the redevelopment of the Car Park. The question on which Andrew advised was whether the redevelopment would likely result in an actionable interference with the rights of the leaseholders.
    • McWalter v (1) AG (as representative of the Crown) (2) Executors of the Estate of Jefferey Mattey [2018] EWHC 563 (Ch): an application under 1017(1) of the Companies Act 2006. After issue, a question arose as to whether the premises had been effectively disclaimed, as the notice gave the wrong company number. It was held that although there is no prescribed form for the disclaimer notice, it is implicit from the requirements in s.1013 that it should include both the company’s name and its number. A second notice had been issued after the claim was issued, and it was held that the continuation of the claim was neither an abuse of process nor should it be dismissed on the grounds that C did not have any cause of action vested in him at the time is was commenced, as the second notice cured the relevant defect.
    • Elliott v Whitney [2018] EWHC 188 (Ch): In a claim over various agreements made in relation to the occupation of premises used as a nightclub, the judge found, amongst many issues that turned on findings of fact, that the fact that payment of rent was made by a company was not sufficient to amount to an assignment from the individual who had originally let the premises.
    • Advising and representing tenants of substantial aerodrome premises in relation to forfeiture for arrears of rent, and breach of repairing covenant.  Resolved by a negotiated relief from forfeiture.
    • Advising a major clothing retailer regarding relief from forfeiture of the leases to several of its premises, and ensuring it was able to trade on the year’s busiest day.
    • Advising and drafting submissions on the construction of rent review provisions in a lease between a London local authority and a major stationery chain.
    • Advising on service charge liabilities in relation to several large unoccupied office blocks.
    • Ayela v Newham LBC [2010] EWHC 309 (QB): An appeal which confirmed, inter alia, that it is an invariable condition of relief from forfeiture for non-payment of rent that the arrears have to be paid within a time specified by the court, and that there has to be evidence that the rent will definitely be paid
    • Mortgage Credit Ltd v Kali [2007] EWCA Civ 1156: An appeal following the line of Southwark LBC v. Kofi-Adu (2006) EWCA Civ 281. The Court found that the judge had ‘decended into the arena.’ The judge’s repeated interruptions of the defendant’s oral evidence had prevented his properly scrutinising and evaluating that evidence. However, it did not follow that he might not have reached the same decisions if he had properly discharged his judicial function.
  • Development & planning

    Development & planning

    Andrew regularly advises and acts for developers and landowners in a wide range of issues, such as rights of way and other easements, options, drainage, trespass, party wall issues, and restrictive covenants.

    • Mr Nicholas Cross and Mrs Hannah Cross v (1) Coach House Mews (Highbury) Limited (2) Mr B and Mrs R O’Donnell (3) Mrs R Young [2022] UKUT 20 (LC), [2022] All ER (D) 09 (Feb): This was an application pursuant to s.84(1) of the Law of Property Act 1925 for the modification of a restrictive covenant preventing the construction of a single-storey side extension on the claimants’ property. The management company and several other residents of the Estate objected. The claimants’ case was that the proposed development will have either have no, or very little, effect on the enjoyment, amenities or value of the objectors’ properties. The following issues fell to be considered: i) Whether the proposed modification will injure the persons entitled to the benefit of the Restriction. ii) Whether the Restriction secures practical benefits to the objectors. iii) Whether any practical benefits that may be identified are of substantial value or advantage to the objectors. iv) Whether money would be an adequate compensation for the loss or disadvantage which any objector will suffer from the modification. v) Whether the Restriction should be modified so as to permit the proposed development. vi) Whether the proposed development would cause a diminution in the value of the objectors’ properties. vii) Whether, if the Restriction is modified, compensation should be awarded in consequence of such modification. Unusually, the claimants did not obtain expert evidence as to (iii) (iv) and (vii) and there was no expert evidence as to (vi).
    • Martin v Lipton and others [2020] UKUT 0008 (LC) An application, based on grounds (aa) and (c) of s.84(1), LPA 1925, to modify a one dwelling house restriction to enable a second property to be built on the applicant’s land. The site visit by the Tribunal was key in demonstrating the density of the existing neighbourhood and lack of change that would result from the development. The decision provides a useful summary of how each individual application will be considered on its merits, and the caution with which the Tribunal will consider a ‘floodgates’ based argument.
    • Lipton and others v Martin (unrep.) 20.09.17, Deputy Master Bartlett: an application by 31 claimants for declarations under s.84(2), LPA 1925 (and CPR r.40.20) that they are entitled to the benefit of, and to enforce, certain restrictive covenants affecting their own and neighbouring plots of land.
    • Advising on restrictive covenants in relation to the number of properties which might be erected on each plot within a locality.
    • Acting for a substantial land owner in relation to enforcement action arising from a failure to maintain embankments.  Issues involved rights of way, restrictive covenants and boundaries.
    • Advising a local authority as to a developer’s ability to construct a housing estate, and to use private roads owned by the authority for access. The dispute involved issues of trespass, rights of way, and restrictive covenants.
    • Acting for a developer in relation to a dispute with three adjoining neighbours. Issues involved a purported party wall agreement, trespass, rights of light, and restrictive covenants.
    • Advising a landowner as to its ability to develop a former recreation ground and cricket club for residential purposes. Issues involved the construction of restrictive covenants, and the identity of those entitled to enforce.
  • Leasehold & leasehold management

    Leasehold & leasehold management

    Much of Andrew’s practice in the area of residential landlord & tenant is concerned with breach of lease, service charges and enfranchisement issues. This sees him frequently in the High Court, the County Courts, the First-tier Tribunal (Property Chamber) and the Upper Tribunal (Lands Chamber).

    Andrew regularly advises on issues of landlord’s express and implied repairing covenants, construction and exercise of break clauses, consent to alterations and assignment, and dilapidations. More recently he has developed a particular interest in the areas of tenants’ right of first refusal, collective or individual enfranchisement, and right to manage.

    As with commercial landlord & tenant, although Andrew is more frequently instructed on behalf of landlords, he is equally at home acting on behalf of tenants. In the High Court and County Court he has considerable experience of cases involving forfeiture.

    Recent Work

    • Advising London local authority on liability of assignees for service charges.
    • Advising local authority on repairing obligations in an action by several tenants.
    • Artist Court Collective Ltd v Khan[2016] EWHC 2453 (Ch) Beneficial interests; Disposition of property; Residential tenancies; Transfer of land.
    • Representing the Secretary of State for Defence in relation to its residential premises, and Human Rights issues.
    • Fairhold (Yorkshire) Ltd v Trinity Wharf (Se16) RTM Co Ltd [2013] UKUT 502 (LC): Acting for the successful landlord, this case answered the question of whether a landlord who opposes a claim for the right to manage is limited to arguing only the grounds raised in his counternotice. The President of the Upper Tribunal decided that the lower tribunal’s jurisdiction is not delimited by the contents of the counternotice; the lower tribunal should, of its own motion, consider whether the statutory procedures had been followed. The landlord may advance grounds not set out in his counternotice.
    • Fairhold Mercury Ltd v Merryfield RTM Co Ltd [2012] UKUT 311 (LC): The Upper Tribunal quashed a decision that the RTM company was not liable for fees incurred by a landlord in preparing counter-notices because the landlord had employed a company and not a solicitor to prepare the notices.  Whilst the work was carried out by a solicitor employed by that company, that did not affect the liability to pay.
    • Crosspite Ltd v Sachdev [2012] UKUT 321 (LC); [2013] 1 E.G.L.R. 31; [2013] 1 E.G. 50: a case confirming that a landlord is free to impose a reasonable condition for the giving of consent, and that could include the recovery of its reasonable costs as such a condition. The FtT had no jurisdiction to determine the issue of such entitlement as that was not an issue raised by the application.
    • Holding and Management (Solitaire) Ltd v Norton [2012] UKUT 1 (LC); [2012] 7 E.G. 91 (C.S.): In four conjoined appeals the Upper Tribunal considered the reasonableness of administration charges for consent to underletting.
    • Jean-Paul v Southwark LBC [2011] UKUT 178 (LC) (UT (Lands)): Important decision on when costs were “incurred” by a landlord under the Landlord and Tenant Act 1985 s.20B, for the purpose of determining the amount of service charges.
    • Stokes v Mardner [2011] EWHC 1179 (QB); [2011] All ER (D) 131 (May): Representing the defendant a claim for damages (and exemplary damages) for trespass and/or breach of the covenant of quiet enjoyment and also under s.3 of the Protection from Harassment Act 1997. The judge was satisfied that the tenancy was a sham agreement, concocted so as to form the basis of a claim. The whole claim was false and dishonest; there had been no eviction or harassment.
    • Wellcome Trust Ltd v Baulackey [2010] 1 E.G.L.R. 125: Dealing with extension of leases, land registration and qualifying periods. Confirming that a purchaser of a long leasehold property became a qualifying tenant under the Leasehold Reform, Housing and Urban Development Act 1993 s.5 from the date on which the purchaser was registered as proprietor of the property and not from the date of purchase.
  • Real property & mortgages

    Real property & mortgages

    Andrew works in all areas of real property, with a special interest in easements and boundary disputes, and public rights of way.

    He also handles other aspects of property related law including mortgages and conveyancing.

    Recent Work

    • Calverley Village Day Nursery Limited v (1) Lynch (2) Select Products (Yorkshire) Limited [2022] EWHC 1855 (Ch); [2022] All ER (D) 96 (Jul); [2022] 7 WLUK 301; [2023] 1 P. & C.R. DG7. E.G. 2022, 2231, 48 Real Property: The proceedings concerned, amongst other things, a small area of land between the rear of Ds’ commercial property and C’s adjoining commercial property. That disputed land was part of C’s land. D occupied it and C sought possession. At first instance the judge dismissed all C’s claims and found that Ds’ claim based on adverse possession (based on the ‘old’ law) of a smaller area of the disputed land was proved. C appealed. The issue was whether there was sufficient evidence of possession and intention to possess by 13.10.1991 to entitle the trial judge to conclude that, by virtue of 12 years’ adverse possession, title to that land was held on trust by 13.10.2003. C contended that the judge had failed to consider specifically whether there was evidence of possession of the disputed land before 13.10.1991. Andrew represented D at first instance and on appeal, successfully resisting the appeal.
    • Freehold Managers (Nominees) Limited v King Property Chamber (Land Registration First-Tier Tribunal) REF/2019/0316 The Applicant’s predecessor had built part of a residential development on the Respondent’s land (which at that time belonged to R’s predecessor). This was an application to be registered as proprietor of the disputed land on the grounds of adverse possession – Schedule 6, paragraph 5, LRA 2002. The application was on the grounds of both equity by estoppel (knowing acquiescence) and reasonable mistake as to the boundary. Although A established adverse possession for the requisite 10 years, the application failed as A was unable to establish either an estoppel or reasonable mistake. The case highlights the importance of witness evidence.
    • Acting for borrower regarding a £2m loan. The case, involving issues of capacity, undue influence, unfair relationship, penalties, estoppel, FSMA 2000 (Regulated Activities) Order 2001, Consumer Credit Act 1974, and Unfair Terms in Consumer Contracts Regulations 1999, is listed for a two-day summary judgment hearing.
    • Advising the insurer of a large retail complex regarding potential liabilities to tenants following a fire.
    • Advising a large national landowner in claims by several landowners regarding encroachment of Japanese Knoteeed.
    • Representing the owner of substantial commercial premises in relation to infringements of its right of way.
    • Advising several land owners in relation to a claim that their land was subject to a public right of way, and representing them in a subsequent public local inquiry.
    • Advising the leaseholder of hospital premises as to the effect various easements would have on its proposed redevelopment.
    • Advising and representing a local authority in relation to land, title to which was claimed by adverse possession
    • (on the application of Durbin) v Welsh Ministers and Thondda Cyndon Taff CBC [2014] EWHC 4458 (Admin) – a case dealing with public rights of way. The main issues were (i) whether the making of a modification order was confined to the correction of an existing definitive map and statement or whether it could also clarify the precise route of a footpath shown on them; (ii) what amounted to “evidence”; and (iii) what was meant by “discovered”, within the meaning of the Wildlife and Countryside Act 1981 s.53(3).
    • Advising a waste management company in relation to licences/permits and issues of access.
    • Advised the management company of a large Country Estate in relation to various public rights of way issues.
    • Cameron v Boggiano [2012] EWCA Civ 157: A judge had erred in failing to construe a title plan and documents by taking account of topographical features where the title plan and documents were insufficiently clear about the position of a disputed boundary. The court also held that to establish a sufficient outward expression of accord to sustain a claim for rectification on the basis of common mistake, there was no evidential requirement to rely upon a particular type of document, such as a defining plan.
    • Quigley v Masterson [2011] EWHC 2529 (Ch); [2011] 49 E.G. 100; [2011] N.P.C. 98: The issue in this case was severance of a beneficial joint tenancy. Henderson J held that the appellant had sufficient authority to receive a notice of severance on the testator’s behalf from the time she was appointed deputy and, since she knew of the respondent’s application, the application could and should be treated as having been ‘given’ to her for the purposes of LPA 1925 s.36(2).
    • Trustees Ltd v Papakyriacou [2009] EWCA Civ 1089; [2010] 1 P. & C.R. DG12: A judge had erred in finding that the tenants of landowners had not breached certain time restrictions imposed on their enjoyment of an easement entitling them to use an area of land belonging to their landlords’ neighbour.  However, an injunction requiring the landlords to use their “best endeavours” to procure that their tenants should abide by the time restrictions was not appropriate where they had taken measures to notify the tenants of the restrictions.
  • Trusts of land

    Trusts of land

    Andrew has an increasing volume of work involving issues relating to trusts, proprietary estoppel, undue influence and the validity of wills.  He regularly advises and acts in disputes between families and co-owners regarding jointly owned property. Frequently such cases relate to trusts of land and family ownership issues, and the proper administration of estates.

    Recent Work

    • Acting for several sibling executors of a family trust, in an action in which a further sibling claimed entitlement to all of the farm land, by proprietary estoppel.
    • Advising in a claim in which a former partner claimed more than 66% beneficial interest in a property solely owned by her ex-partner, based on proprietary estoppel.
    • Bagum v Hafiz [2015] EWCA Civ 801; [2016] Ch. 241; [2015] 3 W.L.R. 1495; [2015] C.P. Rep. 44; [2016] 2 F.L.R. 337; [2015] W.T.L.R. 1303; [2015] Fam. Law 1192; [2015] 2 P. & C.R. DG21; Times, September 7, 2015: An important case dealing with beneficial interests, co-ownership, jurisdiction, and trusts of land. Although it was an unusual form of order, a judge had been squarely within her jurisdiction under ToLATA 1996 to order trustees to sell a co-owned property, upon terms that one beneficiary had a right to a pre-emptive bid at a price determined by the court, failing which it should be sold on the open market, with liberty for all the beneficial owners to bid.
    • Advising in a dispute between a lender, the sole legal owner of a property given as security for a guarantee relating to the loan, the owner’s current wife and child, and his former wife. The former wife claimed a beneficial interest in the former matrimonial home.
    • Acting in a claim against a former life-partner who was the sole legal owner of a property in which his ex-partner had invested under the belief that he would obtain an interest.
  • Conduits: drains, sewers, pipes & cables

    Conduits: drains, sewers, pipes & cables

    Andrew is particularly knowledgeable in the area of conduits – namely drains, sewers, pipes and cables – and the range of related issues such as access, installation, ownership, control, maintenance, obstruction, nuisance and trespass. His work in this area ranges from advising an individual in respect of his neighbour’s drainpipe, to acting in an action by a landowner against  a water and sewerage undertaker regarding its powers and duties relating to their infrastructure.

    Recent Work:

     

    • The House Maker (Padgate) Ltd v Network Rail Infrastructure [2022] EWHC 1482 (TCC); [2022] All ER (D) 109 (Apr); [2022] 4 WLUK 461: Andrew acted for C, which owned land it intended to develop. D owned adjoining railway infrastructure land. C’s land was damaged by flooding caused by drainage damage on D’s land; C was unable to develop its land for 3 years and, consequently, attempted to re-sell the land with planning permission. D submitted that it owed a “measured duty of care” to reduce or remove hazards by taking reasonable steps within a reasonable time in the light of its obligations as a public infrastructure provider, and that it was not in breach of that measured duty. The court found that D had been in breach of duty by failing to carry out remedial works to its land until proceedings were commenced. Even applying a “measured duty of care”, it should have prioritised the remediation works when put on notice of the flooding. C was entitled to the difference between the profit it would have made had it not been prevented from proceeding with the development as planned, and the profit it would make on any sale of the land with the benefit of planning permission.
    • Advising in relation to the drainage of agricultural land.
    • Acting on behalf of a Parish Council regarding its construction of a new library, and the contention by a neighbouring landowner that the new structure would interfere with his right to lay new pipes etc. under the land.
    • A mediation involving the right of a freeholder to lay new pipes and drains under demised land occupied by a commercial tenant. Issues related to the interpretation, construction and extent of rights reserved in the lease.
    • Representing a landowner in a dispute with a water and sewerage undertaker regarding the installation of pipes under his land, leaks from the pipes, and pollution of his lake.
    • Advising an estate regarding its right to re-route or terminate the water supply, and drainage, serving neighbouring properties
    • Dixon v Hodgson and Norgrove (2007) 4 EG 188: Preliminary issue dealing with the construction of clauses. A property was sold with a reserved right “to use and connect to” service conducting installations. The Claimant owner of the retained land was held to be entitled to do what was necessary to connect the drains on their site to the drains on the conveyed property, which included laying new drains.