John de Waal

Introduction & Contact details

John de Waal is recommended as a leading junior in Property Litigation and is described as providing '...excellent commercial advice in time-pressured situations' (the Legal 500 2010).

John specialises in chancery and commercial law with a particular focus on property law and property-related professional negligence cases. He is regularly instructed in complex property-related litigation matters in the Chancery Division and Court of Appeal. He has also appeared in the House of Lords.

John’s professional negligence practice is national in scope. He acts largely, but not exclusively, for defendants. He is instructed by most of the solicitor’s professional indemnity insurers and their panel firms.

John particularly enjoys working as a mediator and has acted as lead mediator in over 50 cases.

Qualifications

• MA (Hons) Cantab
• Accredited Mediator, CEDR

Professional Associations

• Property Bar Association
• Professional Negligence Bar Association

DDI: 020 7691 0104
M:    07540 900070
T:     020 7242 2523 [switchboard]
F:     020 7691 1234
E:     john.dewaal@hardwicke.co.uk

Land & Real Property

Property law is at the heart of John’s practice. He regularly acts and advises on cases involving applications for specific performance or rescission of contracts, options, covenants, easements, mortgages and charges and the beneficial ownership of land.

John is experienced in both commercial and agricultural landlord and tenant work. He is also familiar with residential leasehold disputes through his experience sitting as a part-time lawyer chair of the Midlands Rent Assessment Panel.

John appears regularly in the Chancery Division and Court of Appeal on property matters. In 2007 he was instructed by a property developer in an appeal to the House of Lords in the economic torts case reported under OBG v Allan.

John regularly acts and advises on cases involving applications for specific performance or rescission of contracts, options, covenants, easements, mortgages and charged and the beneficial ownership of land.

Examples of recent work

• Acting for the successful defendant in a Chancery Division case where the allegation was that she had fraudulently refused to re-transfer residential properties to the claimants in breach of an agreement to do so; the case is also noteworthy for the fact that the defendant was not criticised for refusing to mediate a claim she said was a fraud
• Acting for the successful landowner in a case about rentcharges where the Court was persuaded to construe a transfer to include a positive covenant to provide the services supporting the rentcharge
• Advising a developer in relation to rights to light in connection with the residential development of a building in central London

Cases

• Salvage Wharf Ltd v G&S Brough Ltd [2009] EWCA Civ 21; [2010] Ch. 11, Court of Appeal: rights to light; interpretation of oversailing agreement
• Turner v Pryce [2008] 1 P.& C.R. DG20: restrictive covenants; development; building schemes; changes in character of the area; acquiescence
• Mainstream Properties Ltd v Young (reported under the name of OBG v Allan) [2007] UKHL 21; [2008] 1 AC 1, House of Lords: tort of interference with contractual relations; intent
• Sainsbury’s Supermarkets Ltd v Olympia Homes Ltd [2005] EWHC 1235 (Ch); [2006] 1 P.& C.R. 17: equitable interests in land; land registration’ failure to register option; rectification.
• Newell v Tarrant [2004] EWHC 777 (Ch); [2004] PLSCS 93: land registration; caution; undertakings; deeds as security
• Clinicare v Orchard Homes & Development Ltd [2004] EWHC 1694 (QB); [2004] PLSCS 176: agreement for lease; fraudulent misrepresentation; inducement

Landlord & Tenant

Landlord & Tenant  - Commercial

John is experienced in both commercial and agricultural landlord and tenant work. His present caseload includes a number of cases about break clauses and claims for dilapidations.

Examples of recent work

• Acting for the landlord of commercial premises in a break clause case where the tenant’s defence is that the failure to give vacant possession was waived
• Acting for a large property company on a dilapidations claim where the issue is diminution in value following the failure of the outgoing tenant to reinstate premises converted to an ice rink
• Acting for the claimants in a professional negligence claim against a surveyor arising out of the loss of agricultural tenancies which were protected under the 1986 Act

Cases

• NYK Logistics (UK) Ltd v Ibrend Estates BV [2011] EWCA Civ 683; [2011] 4 All ER 339: break clauses; vacant possession; waiver This is the first decision of the Court of Appeal on the question of ‘vacant possession’ for 65 years and likely to be treated as the leading case on the issue
• Manton Securities v Nazam [2008] EWCA Civ 805; [2008] 2 P.& C.R. DG19, Court of Appeal: business premises; equitable tenancies; tenancies at will.

Landlord & Tenant - Residential

Although his practice is principally concerned with commercial property, John also acts in complex residential landlord & tenant and housing cases. He has been a part-time chair of the Midlands Rent Assessment Panel since 2001 and is experienced in all areas of work which come before the LVT.

Examples of recent work

• Murphy v Wyatt [2011] EWCA Civ 408; [2011] 1 WLR 2129, Court of Appeal: caravan sites; mobile homes; application of Mobile Homes Act 1983
• Grand v Gill [2011] EWCA Civ 554; [2011] 1 WLR 2253, Court of Appeal: housing; s11, Landlord & Tenant Act 1985; whether plaster forms part of the structure of the premises. This was the case which finally decided – in favour of the tenant – the vexed question of whether plaster was part of the structure of a premises or not for the purposes of s11. It is also noteworthy for the first case in which the Court of Appeal discussed making a ‘pro bono costs order’ under s194 Legal Services Act

Professional Indemnity

John has particular expertise in property-related professional negligence disputes where the defendants are solicitors, barristers or surveyors. He has been instructed by most of the principal professional indemnity insurers and their panel firms. He is frequently asked to advise and draft Protocol letters at the pre-action stage.

John has a specific interest in fraud, misrepresentation and coverage issues.

Examples of Recent Work

• Mortgage Express v Sawali [2010] EWHC 3054 (Ch); [2011] PNLR 11: delivery up of files to lender; s68 Solicitors Act 1968; effect of waiver by borrower
• Mortgage Express v Sawali [2011] 2 Costs L.R. 288: no order for costs where solicitor professionally obliged to raise the issue of privilege on lender’s application for delivery up of files
• Acting for defendant insurers in solicitor’s negligence case where the solicitor had failed to register title to PCL property thus delaying the time at which the claimant could apply for a lease extension
• Acting for defendant insurers where there was a loan of £830,000 against a defective security: the claim by the lender against solicitors will test the current law on contributory negligence in high LTV claims
• Acting for defendant insurers for managing agents sued for failing to organise repairs to a new-build block of flats causing loss to the buy-to-let purchasers
• Acting for claimant against solicitors who failed to serve notices to complete a sale of commercial property and permitted their clients to become engaged in litigation about rescission of the contract

Trusts

John is very familiar with the law relating to beneficial ownership of land and has acted in many cases involving arguments about constructive and resulting trusts.

Examples of recent work

• Acting for the defendant in a Chancery Division case where the allegation is a failure to retransfer properties purchased at an undervalue from the claimant under a disputed agreement.
• Acting for the claimant in connection with the division of a £2m residential property portfolio where the defendant trustee was in breach of fiduciary duty.
• Acting for the insurers of a firm of solicitors when the claimant alleged that her beneficial interest in property was not protected by a declaration of trust; the claim failed because the claimant could not establish an intention that she and her cohabitee intended to share ownership of the property.

Cases

• Lightfoot v Lightfoot-Brown [2005] 2 P.&C.R. 22, Court of Appeal: beneficial ownership of property; constructive trusts