Property Newsletter: September 2025
Introduction
Hello everybody from your editor!
There’s a real buzz in Gatehouse Chambers right now. The hazy stories of sun-drenched down-time have been shared in corridors and over coffees, and have now given way to a keen focus on the months ahead. This is always busy period for us, but we’ve spent September furiously shovelling coal in the engine room of the good ship Gatehouse and now it’s full steam ahead.
In this edition, we have three excellent articles for you. John de Waal KC shines a light on… rights of light. Meanwhile, Jamal Demachkie provides us all with clarity about the requirement for rent demands in forfeiture cases. Last but not least, David Pliener KC, Helena White and Philip Marriott provide an overview of the Court of Appeal decision in Triathlon Homes.
I hope you enjoy this edition of the property newsletter, and are looking forward to working with you all in the coming months.
David Peachey – Editor
News
Priya Gopal appointed as a Judge of the First-Tier Tribunal
Priya Gopal has been appointed as a Judge of the First-Tier Tribunal (SEND), bringing her broad legal expertise to a vital role supporting children and young people with special educational needs and disabilities.
Laura Tweedy appointed to The Property Mediators
Laura Tweedy has joined The Property Mediators, bringing her award-winning mediation expertise and leading property litigation practice to the next stage of her career.
Gatehouse Chambers shortlisted for 4 awards at the Chambers UK Bar Awards 2025
Gatehouse Chambers has been shortlisted for four awards at the Chambers UK Bar Awards 2025.
Daniel Gatty – Real Estate Junior of the Year
James Hall – Professional Negligence Junior of the Year
Jamal Demachkie – Real Estate Junior of the Year
Cameron Stocks – DEI: Future Leader
Forfeiture of Leases, 2nd edition
The second of edition of Peter and Jamal’s leading textbook, 𝘍𝘰𝘳𝘧𝘦𝘪𝘵𝘶𝘳𝘦 𝘰𝘧 𝘓𝘦𝘢𝘴𝘦𝘴, will be published by The Law Society in October.
This book offers comprehensive and authoritative guidance on both residential and commercial issues relating to the law of forfeiture of leases. You can pre-order your copy here.
What have we been up to?
Brie Stevens-Hoare KC has just got back from a working trip to Cayman. That involved talking lots about Strata, development and land registration disputes. She was also talking and writing at very odd hours of the night and early morning about rights of way, service charges and rent charges for a complex development and the curious case of a deed allegedly completed years after the donor’s death. She had confessed to a few sting rays, star fish and parrot fish along with fabulous food being involved as well. Before Cayman, Brie had a summer filled with franchise disputes that included options to purchase the franchisee’s business tenancy and claims against slow and negligent developers. Variety is the spice of life Brie says.
John de Waal KC has been instructed in an arbitration where the arbitrator is a former pupil of his–he is feeling his age!
Daniel Gatty was delighted to learn that he had been nominated for the Real Estate Junior of the Year award at the Chambers UK Bar Awards 2025. He’s not sure how to react to the fact that one of the other nominees is his colleague, Jamal. How far should collegial goodwill amongst members of Chambers stretch? More prosaically, Daniel has spent his time recently dealing with a TOLATA dispute amongst siblings, an unjust enrichment claim arising out of a property transaction gone wrong, various commercial landlord and tenant issues, and a couple of conveyancing negligence claims.
James Hall has been grappling with the CCA 1974 unfair relationship provisions in relation to a mortgage where the borrower is a legal professional (!), and advising on professional negligence in relation to letting agents instructed to let a high-value residential property.
Jamal Demachkie has been recovering from his holiday in Legoland by acting in a complex multi-day High Court trial concerning rectification and interpretation of mortgage deeds of priority… far less stressful than navigating rollercoasters and sugar-fuelled kids! He is also shortlisted as Real Estate Junior of the Year.
Laura Tweedy has had a busy few months, both professionally and personally. She was delighted to join The Property Mediators, expanding her mediation practice while continuing her work in Chambers. Over the summer, she travelled to Vienna for the CDRC Mediation & Negotiation Competition, where she assessed student mediators from across the globe. Naturally, she brought the whole family along, flying the work–life integration flag! She is currently working on a Court of Appeal matter involving a 54 Act renewal case…although more of a procedural appeal than about property law, and excited for an Autumn full of mediations and Disney World!
Philip Marriott has returned from his holiday in the South of France to questions of property guardianship, managing agent’s duties, prescriptive rights to park, and far fewer croissants for breakfast.
David Lipson has spent his summer travelling up and down the country and advising on a variety of matters, ranging from leasehold enfranchisement, commercial forfeiture, and even a trial on the validity of a gas safety certificate pursuant to s.21 possession proceedings.
Victoria Dacie-Lombardo has just returned from two weeks in Portugal and definitely has that back to school feeling. Amongst other things, she’s looking forward to getting stuck into a high value development dispute concerning the effect of exclusivity agreements (led by Brie Stevens Hoare KC).
Did you miss?
Jak Property Jersey Limited (a company registered in Jersey) v Together Commercial Finance Limited [2025] EWHC 2442 (Ch)
Jamal Demachkie acted for Together Commercial Finance Limited (Together), the successful Defendant. This case concerns a dispute as to priorities between two lenders, both of whom lent to Mulbury Homes (Greg Street) Limited (Mulbury) and taken security in the form of legal charges over land in Salford, owned by Mulbury.
The Claimant (JAK) lent money secured by a first legal charge against a property. As part of this loan, JAK entered into a ‘development services agreement’ allowing Mulbury to raise finance for redevelopment, for which the third party funder was to receive a ‘first legal charge’ and be offered ‘unencumbered security’ in respect of the property. The Mulbury approached Together who agreed to loan moneys for the purposes of this development, secured by a legal charge. Together and JAK entered into a ‘deed of postponement’ which purported to postpone the JAK charge behind the Together charge. However this deed of postponement also included a curious provision which allowed JAK to recover all moneys secured by its charge if it called in its loan first “notwithstanding the priority of [Together’s] First charge”. The development failed; JAK called in its loan and asserted that the effect of this clause was to reverse the priority. Together argued that the clause did no such thing; it was merely a ‘for avoidance of doubt’ provision to explain that JAK’s debt was not subordinated to that of Together (and to allow JAK to receive payment from the borrower even if the Together loan had not been paid in full). In the alternative, Together argued that the deed should be rectified on the grounds of common mistake. There was insufficient equity in the property to satisfy both debts, so this was largely a case of ‘winner takes all’.
HHJ Cawson KC (sitting as a Judge of the High Court) agreed with Together. Given the two competing interpretations, it was permissible for the court to consider ‘commercial common sense’ when construing the deed of postponement. JAK’s interpretation would defeat the object of the deed; it would also lead to an odd situation in which there would be ‘a race to determine the respective loan agreements in order to secure priority’, which could not have been objectively intended. Although the clause could be said to offend the ‘presumption against surplusage’ in a contract, such a presumption was weak and of no real value in this context. Together’s interpretation was to be preferred. In the alternative, the Judge also went on to consider rectification, finding that the parties had a common intention for the clause to operate in the manner contended by Together. He held that there was a sufficient ‘outward expression of accord’ found in emails discussing the deed as a whole; although there was no express communication concerning the meaning of this contentious clause, this was because the understanding was ‘so obvious as to go without saying’. The court, therefore, would have rectified the deed if, in law, it had the meaning advanced by JAK.
The effect of the decision was to ensure that Together remained the first charge holder and was entitled to priority in respect of the proceeds of sale of the property.
Rights to Light after Cooper v Ludgate House Ltd
In this case, leaseholders claimed loss of light due to a nearby office development and sought an injunction or damages. The court found that while the development did cause a substantial loss of light, the public interest in retaining the building and the disproportionate impact of an injunction meant damages were more appropriate. Importantly, the claimants were awarded negotiating damages for the loss of their right to enforce an easement, not for the drop in property value. The judgment also reaffirmed the Waldram method for assessing light loss and highlighted the court’s multi-factorial discretion when deciding between injunctions and damages.
Article written by John de Waal KC
Demands for rent prior to forfeiture (and how to dispense with them)
While most leases treat rent payment as a condition allowing forfeiture if unpaid, forfeiture requires the rent to be due and a formal demand to be made—unless waived by lease wording like “whether formally demanded or not.” Common law rules for valid rent demands are highly technical and outdated, requiring precise timing, location, and amount. These rules can be bypassed either by lease drafting or under section 210 of the Common Law Procedure Act 1852. However, modern residential leases face additional statutory requirements, such as prescribed notices under the Commonhold and Leasehold Reform Act 2002 and disclosure obligations under the Landlord and Tenant Act 1987, making forfeiture more complex and reinforcing its status as a disfavoured remedy in law.
Article written by Jamal Demachkie
“A presumption by any other name…” The Court of Appeal in Triathlon Homes
The Court of Appeal confirmed that developers are at the top of the hierarchy for Remediation Contribution Orders (RCOs) under the Building Safety Act 2022, even though it denied a formal presumption in favour of targeting them. The case involved fire safety defects in Stratford’s former Olympic Village, where Triathlon Homes sought RCOs against the original developer and its parent company despite government funding already covering remedial works. The court upheld the RCOs, emphasizing that well-capitalised developers should bear the financial burden, not the public purse. This marks a shift in the role of RCOs—from ensuring timely repairs to assigning liability for defects. The judgment also highlighted the overlap between RCOs and Building Liability Orders (BLOs), suggesting courts may treat both as tools to hold developers and their corporate groups accountable, regardless of the original intent behind each provision.
Article written by David Pliener KC, Helena White and Philip Marriott. Also published in The Local Government Lawyer.
Contact us
If you would like to discuss any of the topics in this newsletter, please contact the H Team at hteam@gatehouselaw.co.uk or get in touch with one of our Practice Managers.
Patrick Sarson, Senior Practice Manager
Jim Findley, Practice Manager
Samuel Read, Practice Manager
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This edition of the property newsletter was edited by David Peachey. Comments or queries about this newsletter? Please get in touch with him!