Sarah McCann

Call:2001

Introduction and Contact details

Sarah is a member of Chambers’ Commercial, Property and Insurance Divisions and undertakes most areas of work within those fields.  She has developed a strong practice both as an adviser and advocate and has experience of appearing in the specialist commercial and property forums as well as in County Courts and the Court of Appeal.

Sarah has been involved in many technically complex cases, principally as a result of her construction and corporate work, and is skilled at managing document heavy cases and liaising with experts in various disciplines.

Sarah has a strong academic background which she combines with a practical and common sense approach in order to assist clients in achieving their objectives.

Tel:    020 7242 2523 (switchboard)
Fax:   020 7691 1234

Email: sarah.mccann@hardwicke.co.uk

COMMERCIAL

Sarah has extensive experience of commercial and business related disputes and undertakes most areas of commercial work.  A large element of Sarah’s commercial practice revolves around insolvency, professional negligence and construction and engineering related disputes.  However, she also has considerable experience of acting in all types of contractual business and trade disputes, financial services and consumer credit, civil fraud, company and partnership law.

Arbitration

Sarah has experience of advising in respect of arbitral proceedings, drafting the necessary statements of case and acting as an advocate in those proceedings.  Her arbitration experience has ranged from acting for clients in medium size disputes against property developers to acting in respect of multi-million pound claims.

Recent Work

• Acting against a property developer in a claim for misrepresentation and rescission, including drafting the statement of case and acting in settlement negotiations.
• Advising in respect of an application for a stay pursuant to section 9 of the Arbitration Act 1996.
• Acting with Paul Reed for the owner of a sewerage incineration plant in a claim against civil engineers relating to the negligent design, manufacture and installation of a new pipe where a TCC Judge was appointed to act as arbitrator pursuant to section 93 of the Arbitration Act 1996.

Banking, Finance and Credit

Sarah acts for and against banks and other financial institutions in a variety of matters.  She has particular experience of the law relating to mortgages, guarantees, mistaken payments and fraudulent transactions and has advised on complicated issues of consumer credit.

Sarah has a good understanding of many aspects of the Financial Services and Markets Act 2000 (“FSMA”).  She was standing Counsel to the Financial Ombudsman Service (“the FOS”) for several years and as a result has gained an in-depth knowledge of many key provisions and technicalities of the FSA Handbook.

As part of Sarah’s general commercial practice she is also familiar with most forms of finance, including factoring, conditional sale, hire purchase and consumer credit agreements and she often advises on challenging and enforcing such agreements.

Recent Work

• Advising a major legal expenses insurer whether its ATE policies were unenforceable under s.27 of FSMA and on an alleged breach of s.327 of FSMA.
• Advising whether a consumer credit agreement was a multiple agreement pursuant to s.18 of the Consumer Credit Act 1974 and advising on the provisions of the Consumer Credit (Agreements) Regulations 1983.
•  Advising on the effect of mis-stating a global total charge for credit and failure to provide a breakdown of that charge in agreements governed both by the Consumer Credit Act 1974 and the Consumer Credit Act 2006.
• Advising the Brussels office of a bank in a claim for recovery of monies paid under a mistake of fact.
• Acting in a dispute concerning undue influence in the execution of consumer credit agreements and guarantees.

Cases

• Financial Ombudsman Service v Heather Moor & Edgecomb Ltd [2009] 1 All ER 328, CA, led by Charles Flint Q.C. in an appeal concerning the legality of case fees charged by the FOS to IFAs in respect of complaints raised by consumers.
• Financial Ombudsman Service Ltd v Antony Weil Insurance Consultants (2008), acting on an appeal as to whether the FOS’s compulsory jurisdiction pursuant to the Financial Services and Markets Act 2000 (Transitional Provisions) (Ombudsman Scheme and Complaints Scheme) Order 2001 applied to a firm formerly authorised by FIMBRA but which was never a member of the PIA.

Civil Fraud

Sarah often comes into contact with cases involving allegations of fraud.  Those allegations have taken various guises, ranging from claims of fraudulent misrepresentation, (in particular in the field of mortgage, credit and insurance work), to allegations of more complex corporate fraud.  She is well versed in the principles relevant to such claims, including those relating to deceit, conspiracy, economic torts involving dishonesty, restitution, constructive trusts and tracing.  She is also experienced in the procedural issues which are often associated with fraud cases, for example obtaining, resisting and varying freezing orders and other injunctive remedies.

Recent Work

• Acting for two lenders in claims against two firms of solicitors in respect of a large scale mortgage fraud, involving Norwich Pharmacal applications against third party banks to assist with tracing assets.
• Acting in a mediation on behalf of an employer in a claim against a former employee relating to fraudulent activity in procuring construction contracts.
• Together with Nigel Jones QC, advising a company director in respect of fraudulent activities by domestic and international companies of a corporate group.

Companies

Sarah is experienced in most areas of company law ranging from a company’s incorporation through to liquidation, dissolution and occasionally restoration to the Register.  She has particular experience of advising upon directors’ duties and disqualification, shareholders’ rights and remedies and challenging corporate transactions.

Sarah’s work in company law matters often dovetails with her insolvency work and she is equipped to advise and assist companies upon the various forms of insolvency situation in which they may find themselves.

Recent Work

• Advising a minority shareholder on his potential remedies, settling petitions and points of claim pursuant to section 994 Companies Act 2006 (formerly section 459 Companies Act 1985) in respect of four companies.
• Acting for a company seeking emergency declaratory and injunctive relief to prevent the defendant from holding himself out as a director of the company or otherwise interfering with its management.
• Advising a company when its proposed transfer of shares to a connected company was challenged by a former director and minority shareholder

Cases

• Chang Limited & Others v Costs Certainty Limited & Others (2008) ChD, acting as Junior Counsel to Nigel Jones Q.C. in a claim including allegations of breach of directors’ duties and sale at an undervalue.

Construction & Engineering

Sarah has developed a strong construction and engineering practice ranging from general building disputes involving residential and commercial properties to multi-party disputes of significant value between employers and construction professionals on highly technical works.  Her experience includes drafting pre-action letters for the purpose of the Construction and Engineering Pre-Action Protocol and the consideration of many standard and bespoke forms of contract including JCT, ICE and GC Works forms.  She also acts in cases concerning adjudication and arbitration, defective works, extensions of time, entitlement to loss and expense and issues of repudiation and termination.

Sarah’s experience in the field of professional negligence and insurance particularly complements her work in this area

Recent Work

• Acting with Paul Reed for the owner of a sewerage incineration plant in a s.93 Arbitration against civil engineers relating to the negligent design, manufacture and installation of a new pipe.
• Acting for a ground improvement sub-contractor in a claim brought against it and two firms of civil and structural engineers for over £300,000 in respect of defective works at a factory.
• Advising a ground engineering contractor in relation to damage to an underground cable caused during the removal of a guide wall.
• Advising a tenant of commercial premises in respect of a claim for material damage and business interruption due to a fire caused by hot works being carried out on the roof.
• Advising on a claim against a builder for failure sufficiently to excavate heavy clay resulting in drainage problems.
• Advising on the enforcement of an adjudication award and stay of execution in enforcement proceedings.
• Advising whether a deduction for LADs was properly made from an interim payment under the terms of JCT Local Authorities with Quants 1998 Edition.
• Acting for the Defendant in a claim under the New Roads and Streetworks Act 1991 in respect of damage caused to an underground cable.
• Advising and acting for contractors, private individuals and developers in relation to Party Wall Act Etc. disputes.
• Acting in proceedings concerning subsidence to residential properties caused by tree root exacerbated clay shrinkage.

Franchising

As part of Sarah’s commercial and property practice, Sarah is familiar with the principles involved in franchise arrangements.  Sarah has a particular interest in post-termination covenants and property and insolvency issues arising in the course of the franchise business.

Sarah recently spoke at Chambers’ annual Franchising Seminar attended by franchisors and their advisers on issues relating to franchisor insolvency and the dangers of post-insolvency fall out for the franchisor’s business.

Insolvency & Restructuring

Sarah is familiar with all forms of corporate, partnership and personal insolvency and often provides advice from the initial stages, when consideration is being given to the different options available, to matters arising during the course of the insolvency itself, including challenging and defending the conduct of the office-holders, dealing with the administration of assets and ultimately disputes as to the conclusion of the insolvency and the costs incurred in the process.

Sarah is a co-author and regular presenter of Chambers’ seminar on Insolvency for Property Lawyers.

Recent Work

• Acting for a bankrupt opposing an order fixing the Trustee in Bankruptcy’s remuneration.
• Advising a Trustee in Bankruptcy on the merits of the bankrupt’s spouse’s opposition to his application for an Order for Sale of the matrimonial home.
• Acting for a bankrupt in an appeal by LPA receivers involving arguments as to whether the bankrupt had locus standi to restrain the sale of her property by the receivers as a result of her interest in the surplus  funds. 
•  Advising a local authority on its liability to pay rent to a landlord in administration.

Cases

• Clydesdale Financial Services Ltd & Others v Smailes & Others (2008- ) ChD, acting on behalf of an alleged creditor seeking to set aside a sale of a solicitors firm at an alleged undervalue, including claims for the removal of the Administrators.
• Takavarasha v Newham Borough Council [2006] BPIR 311, successfully opposing an appeal against a bankruptcy order made on the grounds that (i) the underlying liability orders forming the basis of the debt had not been served, (ii) the appellant had not been served with the statutory demand and the substituted service had been ineffective and (iii) the debt was overstated in the statutory demand and petition.
•  Re a Company (No. 3070 of 2003) [2003] All ER (D) 139 (Oct), successful application on behalf of the company for an extension of an injunction restraining presentation of a winding up petition on the grounds that there was sufficient evidence of a genuine dispute on substantial grounds in respect of the debt.

Partnership

Sarah’s experience of partnership includes advising as to the existence of partnerships, the construction of the terms of partnership agreements and deeds of resignations, disputes as to the management of the partnership and advising and acting in disputes concerning issues of repudiation and dissolution.  Sarah is also familiar with the legal principles applicable to Limited Liability Partnerships.

Sarah is a co-author and presenter of Chambers’ seminar on The Dissolution of Partnerships.

Recent Work

•  Acting in a dispute between family members running a partnership business which resulted in the dissolution of the partnership and disputes as to the sale of the assets.
•  Acting at trial on behalf of two partners against a former partner involving issues as to the existence and terms of the partnership, the purported resignation of the defendant and claims for orders for sale of partnership property.

Professional Negligence

Sarah has a strong professional negligence practice.  She is regularly instructed for and against professionals and their insurers in a diverse range of areas including the legal, financial, property and construction sectors.  She is experienced in dealing with all aspects of solicitors’ negligence relating to both non-contentious and contentious work and has also acted in numerous cases involving architects, engineers, designers, project managers, quantity surveyors, accountants, auditors, mortgage brokers and financial advisors.

As part of Sarah’s professional negligence practice she advises on issues arising in respect of professional indemnity insurance policies (see professional indemnity insurance section).

Sarah is also a regular author and presenter of seminars in this field, most recently co-presenting a workshop on professional negligence issues arising in mortgage related matters.

Recent Work

Legal Professionals

•  Acting against a firm of solicitors for their negligent conduct of litigation against two other firms of solicitors for professional negligence in the conduct of the client’s underlying divorce proceedings.
• Advising a solicitor on a claim alleging that he was negligent in the conduct of the client’s divorce proceedings including failure to take steps to set aside a transfer of land by the deceased spouse pursuant to the Matrimonial Causes Act 1973 and failing to take that into account when advising the client on settlement of her claim under the Inheritance (Provision for Dependants) Act 1975.
• Advising a solicitor on a claim relating to a failure to obtain relevant documentation for the purposes of a trial and negligently advising on the merits of an appeal.
• Advising on a claim against a solicitor for failure to take into account a recent authority on the Consumer Credit Act 1974 which it was alleged would have resulted in settlement of the litigation.
• Advising a solicitor on a claim for loss of opportunity to enforce a judgment which also involved considerations of whether the proceedings were a nullity for failure to obtain the requisite permission to commence proceedings pursuant to the Insolvency Act 1986.
•  Acting for a solicitor on a claim brought by a pension trust and trustee for negligence in acting on their behalf in mediation with significant satellite litigation in relation to claims for recovery of fees due on other cases.
•  Advising a solicitor on a claim alleging the negligent drafting of a partnership agreement resulting in two partners being unable to compel the third partner to leave the business.
•  Acting in numerous solicitors’ negligence claims relating to residential and commercial conveyancing, including advice on co-ownership, restrictive covenants, drafting of conveyances, lease renewals and execution of guarantees.
•  Advising in numerous solicitors’ negligence claims relating to failure to issue proceedings within the relevant limitation period and the likely quantum of such claims.

Finance Professionals

• Acting on behalf of an IFA in a claim brought against him for negligence in failing to obtain payment protection insurance in respect of his client’s mortgage.
• Advising accountants on a counter-claim alleging negligence in the preparation of VAT and tax returns.

Construction Professionals

• Acting in a substantial claim in the TCC brought by contractors against a specialist sub-contractor and engineers for structural damage caused by defective works.
• Acting in a claim against a piling contractor for negligence in carrying out excavation works.

Property Professionals

• Acting in a substantial claim for negligence against a valuer and solicitor in connection with back to back transactions.
•  Acting on behalf of a surveyor instructed to produce drawings for works and to deal with matters arising under the Party Walls etc. Act 1996, alleged negligence in failing to take account of the chimney which passed between the party wall.

Cases

• Melville v Melville (2004) QBD, the first of three claims brought by the Claimant against family members, previous solicitors, accountants and auditors in respect of the sale of shares and a loan account from one family trust to another family trust.  Acting in the successful strike out of the professional negligence claims against the solicitors, accountants and auditors.
• Melville v Melville & Others [2007] All ER (D) 139 (Nov), obtaining a Civil Restraint Order after the striking out of the three different sets of proceedings brought by the Claimant and breach of undertakings pursuant to the Protection from Harassment Act 1997.  Successfully opposed appeal of the finding of contempt in the Court of Appeal.
• Pierre Wilson v The Specter Partnership & Others (2007) ChD, acting as one of five defendants, including the Official Receiver, the Insolvency Service and the DTI and striking out the Claimant’s claim against his former solicitors for in excess of £1million.

Trade

Sarah acts in domestic trade related disputes and has experience of guarantees, factoring agreements, conditional sale, hire purchase and consumer credit agreements and she often advises on challenging and enforcing such agreements.  She regularly advises in matters arising pursuant to the Sale of Goods Act 1979, Supply of Goods and Services Act 1982 and associated legislation.

Recent Work

•  Acting in numerous claims on behalf of a factor seeking payment of assigned invoices where disputes have been raised by the customer.
•  Acting on behalf of a freight clearing house business in a claim by owners of goods alleging that it was a sub-bailee or sub-quasi-bailee of its goods.  Involved consideration of the Road Haulage Association Limited Conditions of Carriage 1998.
• Advising whether a consumer credit agreement was a multiple agreement pursuant to section 18 of the Consumer Credit Act 1974 and advising on the provisions of the Consumer Credit (Agreements) Regulations 1983.
• Advising on the effect of mis-stating a global total charge for credit and failing to provide a breakdown of that charge in agreements governed both by the Consumer Credit Act 1974 and the Consumer Credit Act 2006.
• Acting in a dispute concerning undue influence in the execution of consumer credit agreements and guarantees.

Utilities

Sarah regularly acts on behalf of electricity distributors and suppliers in connection with claims made by customers principally in relation to fires at both commercial and residential properties.  As a result, she is highly familiar with the provisions of the Electricity Act 1989 as amended and the various regulations made thereunder.  Her work in the electricity sector has also included advising on the construction of the national terms of connection and standard terms of supply.

Sarah’s construction and engineering work has also brought her into contact with cases involving damage to utility pipes and telephone cables which is set out in more detail in the Construction and Engineering section of her C.V.

INSURANCE

Sarah has been involved in a significant amount of work in the insurance arena and she is alert to the issues of conflict that can arise as between the assured and the insurer.  In addition to advising insurers on the merits of the claims against their assured, Sarah also advises on the construction of policies and the scope and avoidance of cover. 

All Risks

Sarah has acted on behalf of insurers under contractors’ all risks policies in relation to her work carried out as part of her construction practice.  For more details of Sarah’s construction and engineering practice see that section of her CV in the commercial section and the relevant section below.

Recent Work

•  Advising in respect of a number of water damage and fire damage claims at a major new contemporary mixed use development, including advising on the terms of the Project Contractors All Risks Policy.

BTE & ATE

Sarah regularly acts for clients funded by legal expenses insurance and provides advice for the purpose of obtaining the necessary cover. She is also experienced in the intricacies of the relationship between insurance policies and CFAs.

Recent Work

• Advising a major legal expenses insurer whether its ATE policies were unenforceable by reason of section 27 of FSMA and whether it was in breach of section 327 of FSMA by reason of the solicitor allegedly receiving commission from the insurer.  Also involved consideration of the effect of the potential unenforceability of the client’s CFA with the solicitor on the insurance policy and potential avoidance for non payment of premiums.

Cases

• Cusworth v Capita Commercial Services Limited (2009), a claim brought against an underwriter and its agent for refusal to provide legal expenses cover which included allegations of breach of contract, breach of fiduciary duty and breaches of the Insurance Companies (Legal Expenses Insurance) Regulations 1990.  Acted on behalf of the agent in successfully striking out the claim against it.

Construction & Engineering

A significant part of Sarah’s construction and engineering practice consists of acting for the insured under subrogated claims.  Her experience of all risks and public liability policies has also tended to be connected to her construction work.  For more details of Sarah’s construction and engineering practice see that section of her CV in the commercial section.

Recent Work

• Acting with Paul Reed in an Arbitration on behalf of the owner of a sewerage incineration plant in a claim against civil engineers relating to the negligent design, manufacture and installation of a new pipe.
• Acting on behalf of a specialist sub-contractor in a claim brought against it and two firms of civil and structural engineers for over £300,000 in respect of alleged negligent ground improvement works at a factory.
• Advising a contractor specialising in ground engineering works who had been engaged to carry out piling and associated works on the construction of a mixed development where removal of a guide wall had caused damage to an underground cable.
• Advising and acting for contractors, private individuals and developers in relation to party wall disputes.
• Acting in proceedings concerning subsidence to residential properties caused by tree root exacerbated clay shrinkage.

Fire Damage

Sarah acts for insurers and electricity distributors and suppliers in fire damage disputes, including coverage and avoidance issues.

Recent Work

• Advising in respect of fire damage claims at a major new contemporary mixed use development
• Advising a tenant of commercial premises in respect of a fire at the premises caused by hot work activity being carried out on the roof of the premises which resulted in material damage and business interruption.

Professional Indemnity

Sarah has a substantial professional negligence practice which often involves her working in partnership with claims managers, underwriters and the insured.  In addition to advising the professional’s indemnity insurers of the merits of the claims against their insured she often advises upon the scope of the cover of those policies, avoidance for non-disclosure and misrepresentation and claims co-operation and control clauses.

For more details of Sarah’s professional negligence work acting on behalf of professional indemnity insurers and the insured professional see that section of her CV in the commercial section.

Recent Work

• Advising solicitors’ professional indemnity insurers on issues of coverage where there are disputes as to whether the notification and co-operation provisions have been complied with.

Public Liability

Sarah has acted for public liability insurers principally in connection with her construction and engineering related work which is set out in more detail in the construction and engineering section above and in the commercial section of her CV.

Recent Work

• Advising the public liability insurers of an electrical engineering and installation contractor in respect of a fire at premises where they were undertaking works and settling a draft letter of response under the Pre-action Protocol for Construction & Engineering.
• Acting with Paul Reed in advising the lead public liability insurer when a water main pipe was damaged causing water to escape and cause damage to the surrounding residential properties and railway station.

PROPERTY & PRIVATE CLIENT

Sarah’s practice encompasses both residential and commercial landlord and tenant matters and she has also dealt with a wide variety of real property disputes, including disputes as to title, ownership, boundaries, easements and mortgage related matters.  Sarah has experience of appearing in the specialist property arenas having conducted hearings before the LVT and the Adjudicator to the Land Registry.

Sarah’s property practice benefits from her considerable commercial experience where there is often an overlap with her work in the fields of construction and engineering, professional negligence and insolvency.

Inheritance and Probate

Sarah regularly advises on inheritance and probate cases including the construction of wills, challenges and variations to wills, grant of probate, the administration of estates and the intestacy provisions.  Sarah also has experience of advising upon, drafting and acting on applications under the Inheritance (Provision for Family and Dependants) Act 1975.

Recent Work

• Acting for the deceased’s daughter at a mediation in a dispute as to whether land was gifted to her under her mother’s will.
• Acting on behalf of the estate in a claim brought by the deceased’s husband seeking (i) a declaration that he was the sole owner of the property registered to the deceased or a joint owner and (ii) relief under the Inheritance (Provision for Family and Dependants) Act 1975
• Advising on the merits of a claim for the purpose of making a Beddoes Application.

Land & Real Property

Sarah is well versed in most land and real property issues, including disputes as to ownership, rights of way, restrictive covenants and issues arising in respect of land registration.  She is frequently instructed by banks and building societies on mortgage claims, including issues of undue influence, consumer credit, subrogation, title rectification and claims for mortgage shortfalls. 

Sarah’s experience in the fields of professional negligence, construction and insolvency, detailed in those sections of her CV above, also complements her property practice.

Sarah is a regular author and presenter of seminars in this field, most recently having co-written and presented seminars on Insolvency for Property Lawyers and Freehold Restrictive Covenants.

Recent Work

• Acting in an Arbitration against a property developer claiming misrepresentation and rescission of his sale contract, including drafting the Statement of Case and acting in settlement negotiations.
• Advising as to whether there had been wrongful rescission of a contract of sale to purchase three properties including a hotel.
•  Advising whether a mandatory injunction could be obtained to remove a structure on neighbouring land allegedly built in breach of a restrictive covenant.
• Acting on behalf of landowners seeking a declaration that there was a vehicular and non-vehicular easement over a track on their neighbours’ land
•  Acting in a two day hearing before the HM Land Registry Adjudicator in a dispute between neighbours as to the first registration of an area of land.
• Advising in a claim in the Manx Courts brought by landowners against their neighbours in respect of an oil leak and contamination resulting in the landowners being unable to reside at their property for in excess of 3 years.
• Advising a farmer whose land was surrounded by his neighbour’s chalk pit quarry in respect of excavation works being carried out on the north face of the quarry, the effect of those works on the farm and the potential remedies available.
• Advising a group of property owners on claims against property developers in respect of defects in their newly built properties.
• Acting in proceedings concerning subsidence to residential properties caused by tree root exacerbated clay shrinkage.
• Advising and acting for contractors, private individuals and developers in relation to party wall disputes.
• Advising and acting at trial on a mortgage fraud claim involving issues of subrogation to prior charges.

Landlord & Tenant – Commercial

Sarah has acted for commercial landlords, tenants, guarantors and insolvency practitioners in respect of commercial leases.  She advises on the construction of covenants within the lease and their enforceability, in particular those relating to rent review, service charges, insurance, alterations, assignment and restrictive covenants.  She is regularly instructed in claims for recovery of rent arrears and service charges and forfeiture proceedings for breach of covenant.  Issues arising on insolvency, such as disclaimer and vesting of leases also frequently arise in Sarah’s work.

Sarah is familiar with the provisions of the Landlord and Tenant Act 1954 and is able to assist in negotiating lease renewals or acting for either party on disputed renewals.

Recent Work

• Advising a local authority upon its liability for dilapidations on termination of its commercial lease.
• Advising and settling forfeiture proceedings where property was being used as a restaurant rather than the permitted user under the lease.
• Acting on behalf of a pub landlord in forfeiture proceedings for rent arrears and breach of beer tie provisions.
• Advising on liability for costs in a dispute as to renewal under the 1954 Act which settled the day before trial.
• Advising on ability to contract out of the 1954 Act.

Landlord & Tenant – Residential

As with Sarah’s commercial landlord and tenant work she advises on all aspects of the interpretation and enforceability of covenants in leases and is regularly instructed in claims for recovery of rent arrears and service charges, forfeiture proceedings for breach of covenant and challenges as to the reasonableness of service charge demands.  In addition, she is familiar with the various forms of residential tenancies and leases which exist, including assured shorthold, assured, Rent Act protected tenancies and long leases.

Sarah has particular experience of and interest in all matters relating to enfranchisement and is regularly instructed to advise in disputes as to the right to enfranchise.

Recent Work

•  Advising a long leaseholder in respect of claim for loss of amenity arising out of construction work.
• Advising upon the validity of notice for enfranchisement under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 where it had been signed by an attorney on behalf of a lessee who was mentally and physically incapable of signing the notice.
• Advising upon the right to acquire the freehold under the Leasehold Reform Act 1967.
•  Advising in respect of proceedings for possession pursuant to the Rent Act 1977 including consideration of whether a licence agreement was a sham, locus standi of the claimant as beneficial owner and prospects of proceedings under Case 11 of the Act
•  Appearing in the Leasehold Valuation Tribunal on an application for variation of a lease pursuant to section 35 of the Landlord and Tenant Act 1987.
•  Advising a long leaseholder on the merits of bringing a claim against the landlord for specific performance of his repairing obligations under the lease and on the lessee’s liability in relation to pay a service charge bill for major works. Involved advising on whether the payment of service charges was a condition payment to the landlord’s duty to repair and whether interim service charge demands could be made pursuant to the lease.

Cases:

•  Westleigh Properties v Green (2005), acting in a claim involving the right of first refusal under the Landlord and Tenant Act 1987 prior to its amendment.
• Howard de Walden Estates Ltd v Tornambe (2008), dispute as to whether a party could be a qualifying tenant for the purposes of the Leasehold Reform, Housing & Urban Development Act 1993 when he held only an equitable lease.

Trusts

Sarah regularly advises on both property and commercial trusts and has advised on trustees’ duties, beneficiaries’ rights, challenges to and construction and variation of trust deeds.  Sarah also has some experience of drafting deeds of trusts and deeds of variation.

Recent Work

• Acting on an application to contest jurisdiction in a claim to remove an executor of a will and trustee of a charitable will trust.
• Advising a client who wished to set up educational trust funds for his grandchildren and drafting the necessary trust deeds.

Cases

•  Melville v Melville (2005) ChD, the second of three cases brought by the Claimant in a long-running family dispute and professional negligence claim.  Included acting on behalf of the trustees of a trust governed by Bahamian law in respect of allegations made by them by the Claimant purportedly in his capacity as Beneficiary and Protector of the trust.

Trusts of Land

As part of both her property and commercial practice, Sarah regularly advises clients on whether they have beneficial rights by reason of an express, constructive or resulting trust or due to the principles of proprietary estoppel.  She has acted in numerous claims between family members, co-habitees, and members of partnerships, seeking declaratory relief, orders for sale pursuant to the Trusts of Land and Trustees Act 1996 (“ToLATA”) and consequential orders as to the provision of accounts and the distribution of the sale proceeds.

Recent Work

• Advising former co-habitees in numerous cases as to whether they have a beneficial interest in the property in which they resided with their partner.
• Acting in disputed ToLATA proceedings seeking an order for sale of a restaurant.
• Acting in proceedings between two brothers in which a beneficial interest is claimed pursuant to a constructive trust alleged to have been entered into in 1979 and in reliance upon which works were carried out to the property over two decades.