Andrew Skelly

Introduction & Contact details

Andrew came to Hardwicke from 1 Essex Court in August 2006 and has continued to develop his successful property practice. Specialising in most areas of property law - with a particular focus on rights of way and easements, public rights of way, and boundary disputes - Andrew has developed a special interest in the area of pipes, drains and sewers. These areas of specialism have been complemented by his work for BPP Professional Education lecturing and presenting seminars for solicitors’ Continuing Professional Development. He has also been invited to lecture at a variety of firms.

Andrew deals with both contentious and non-contentious matters, and his clients include local authorities and estates, private and corporate land owners, developers and management companies, and private individuals (both private and publicly funded).  Andrew is regularly instructed by a number of London Local Authorities, dealing predominantly with their commercial property issues, and is frequently commended for his practical, versatile and commercial approach.

Qualifications

• Bar Vocational Course - Inns of Court School of Law
• LL.B (Hons)

Professional Associations

• Chancery Bar Association
• London Common Law and Commercial Bar Association
• Property Bar Association

T:   020 7242 2523 (switchboard)
F:   020 7691 1234
E:   andrew.skelly@hardwicke.co.uk

Land & Real Property

Andrew works in all areas of property, with a special interest in boundary disputes and easements, and public rights of way. Other aspects of property related law include mortgages and conveyancing.

Recent Work

• Advising the insurer of a large retail complex regarding potential liabilities to tenants following a fire
• 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 a squatter
• 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
• Advising a local authority in relation to a substantial property development, namely the conversion of office blocks into residential apartments and penthouses with commercial units on the ground floor. Issues included potential nuisance actions by the residents, potential breach of contract actions by commercial occupiers and planning issues in relation to refuse collection and parking.
• 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
• An action involving the right of a freeholder to lay new pipes and drains under demised land occupied by a commercial tenant. Issues relate to the interpretation, construction and extent of rights reserved in the lease.
• 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.

Relevant Cases

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. Several years after unsuccessful efforts to sever the joint tenancy by written notice, the testator became a patient of the Court of Protection. Before his death his daughter (the appellant) applied to be appointed deputy. The respondent also made an application in the Court of Protection proceedings, seeking permission to sell the joint property.  The Adjudicator held there had been no severance of the joint tenancy at the date of the testator’s death. Henderson J heard the appeal, holding 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.

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.

Crowndale Taverns v Stovaco Holdings Ltd (unreported) ChD (Lindsay J) 9/11/2004
An action involving options. C had sought to sell a property that had once been the subject of an option granted in favour of S. A caution had been registered in favour of S in order to secure the option. C submitted that the document relied on by S to had not been signed by C, and the purported signature was a forgery. S submitted that an allegation as serious as forgery should be the subject of a full examination but in any event the Law of Property (Miscellaneous Provisions) Act 1989 s.2 had in effect been complied with if two other documents were read together as one. There was no evidence in writing that the previously granted option remained valid, and an order was made that the Land Register be amended to remove the caution.

Landlord & Tenant

Landlord & Tenant - Commercial

Andrew’s work in the area of landlord & tenant is predominantly commercial. He has significant experience advising and representing a number of Local Authorities in relation to their commercial premises, on issues such as forfeiture, lease renewal, service charges, dilapidations, rent review, alienation, injunctions and construction of clauses. Recently Andrew has been involved in drafting leases and licences for a retail ‘village’, and a waste processing plant.

Recent Work

• 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 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

Relevant Cases

Ayela v Newham LBC [2010] EWHC 309 (QB)
Respondent landlord (L) had peaceably re-entered two premises and forfeit both tenancies.  The appellant tenants (T) sought relief against forfeiture but failed to appear at trial and their claims were dismissed. T appealed against a refusal to set aside the judgments entered in default of appearance. The appeals were dismissed: inter alia confirming that it was an invariable condition of relief from forfeiture for non-payment of rent that the arrears had to be paid within a time specified by the court, and that there had to be evidence that the rent would 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.’ Even though 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.

Landlord & Tenant - Residential

Much of Andrew’s practice in the area of residential landlord & tenant is concerned with enfranchisement and service charges issues. This sees him frequently in the High Court, the County Courts and the LVT. Originally accounting for the larger part of his practice, residential short term tenancies - Assured Shortholds and Rent Act protected tenancies - have more recently occupied Andrew’s time less frequently. However, he still regularly advises on issues of landlord’s express and implied repairing covenants.

Recent Work

• Representing the Secretary of State for Defence in relation to its residential premises, and Human Rights issues
• Advising London local authority on liability of assignees for service charges
• Acting London local authority in service charges dispute at the LVT
• Advising local authority on repairing obligations in an action by several tenants.

Relevant Cases

Holding and Management (Solitaire) Ltd v Norton [2012] UKUT [1] (LC), LRX/33/2011
Appeals in four cases concerning the operation of s.19(1)(a) and (b) of the Landlord and Tenant Act 1927.  In Norton there was a specific covenant that required the lessee to pay “all reasonable costs and expenses… incurred in granting any consent” under the lease.  In none of the other cases did the lease make specific provision for a charge for consent to underletting.  Whilst in two of the cases there were no general provisions in the leases entitling the landlord to make such a charge, each lease did entitle the landlord to withhold consent to an underletting, provided it did not do so unreasonably.  Consequently, if it is not unreasonable for the landlord to seek a payment for the costs that it incurs in consenting to such an underletting, it will not be unreasonable for it to withhold consent if such payment is not made.  The question is whether the charge that is sought to be made is reasonable.

Section 19(b) is concerned with the situation where the tenant is required as the whole or part of the consideration for the lease to erect or substantially improve or add to or alter a building.  It would typically be a building lease (defined, it may be noted, in section 205(1)(iii) of the Law of Property Act 1925 as a lease for the purposes of erecting or improving or adding to or repairing a building).

Under that provision the question is whether the lease was “made in consideration wholly or partially of the erection, or the substantial improvement, addition or alteration of buildings”.  In the four cases, the consideration in respect of which the lease was made was the consideration moving from the tenant to the landlord for the grant of the lease.  In each case, what the tenant gave was the premium, the covenants, and the rent.  What the tenant received for this consideration was the long lease in a building newly erected by the landlord.  The fact that the building was newly erected is of no relevance to the application of section 19(1)(b) in these circumstances.  There would be no reason at all for conferring on a tenant, who was not required as part the consideration for the lease to carry out building works, carte blanche to underlet simply because the lease was a lease of a new or improved or altered building.

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.  Holding that the costs were "incurred" by when they were actually paid and not when the obligation of payment first arose. A landlord's notices of the estimated costs of works, and letters chasing payment, were sufficient to prevent the tenants from relying on s.20B in arguing that they were not liable to pay contributions since the costs had been incurred more than 18 months before the service of a final payment demand.

Stokes v Mardner [2011] EWHC 1179 (QB); [2011] All ER (D) 131 (May)
Representing the defendant - who contended that an alleged tenancy agreement was a 'sham' concocted by the claimant and the third party and that the whole claim was false and dishonest; there had been no eviction or harassment. The claims for damages (and exemplary damages) for trespass and/or breach of covenant of quiet enjoyment, were dismissed. On all the evidence, the agreement was a sham. The claimant had not lived at the property and had no intention of doing so. He had left a few possessions in the house at the instigation of the third-party to cause confusion, uncertainty and anxiety in the mind of the defendant. The third party had caused the claimant to instigate the false proceedings.

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.

Trusts

Andrew has an increasing volume of work involving issues relating to the validity of wills, proprietary estoppel, and undue influence.  Frequently such cases relate to trusts of land and family ownership issue, and the proper administration of estates.

Professional Negligence

Andrew specialises in property related work, and his professional negligence practice is predominantly focused in this area. More recently, Andrew’s work in this area has focused on the often complex area of enfranchisement.

Recent Work

• Advising a mortgagee in relation to a solicitor’s failure to notify of a unilateral notice protecting an option agreement.
• A claim against a solicitor for failing to advise on and serve a valid notice under the Leasehold Reform, Housing and Urban Development Act 1993
• A claim against a solicitor for failing to ensure a valid assignment of the benefit of a notice served under the 1993 Act
• Defending a solicitor alleged to have served a defective notice under the Leasehold Reform Act 1967
• Advising and representing a publican who claimed damages against his insurance broker for failure to inform him that he was not insured against fire risk. The public house burned down
• Advising and negotiating settlement in a five-party action, relating to negligent advice regarding easements and options.