What lies ahead in 2025?

Well, 2024 may have been a busy year in the world of property litigation, with our legislators rather more active in our field than usual, with predictably litigious results – but 2025 looks set to be jam-packed. In the usual way, I set out the results of my discussions in Chambers as to what will be happening over the course of 2025. As always, that seems to me to be a pretty good basis for a survey of the property litigation market. The results range across the whole real estate field – commercial, residential and agricultural leasing disputes, lots of real property conflicts involving restrictive covenants and easements, and the usual range of arguments about mortgages, adverse possession and telecoms. And the new(ish) kids on the block, the Building Safety Act 2022 and the endless variety of injunctions against protesters, are going to be responsible for a fair degree of the litigation we will see this year. Let me start with landlord and tenant disputes, where the field of battle encompasses service charge and use disputes, lease renewals, forfeiture and enfranchisement. Given the volume of our material, I will have to limit each area to two or three examples. Commercial A number of forfeiture cases raise interesting issues, of which I should mention two. First, in Business Environment Central Services Ltd v Cheapside SARL, to be heard over three days, the landlord of office premises, who forfeited a lease on the insolvency of its tenant, was confronted by a claim from a group company of the tenant that they own all the furniture and IT equipment in the premises, and are entitled to the profits allegedly made by the landlord from letting an incoming tenant use the equipment. Second, in Manor Holdings Ltd v Zafferano Restaurants Ltd, the tenant is claiming (a) that the landlord’s forfeiture by peaceable reentry was unlawful; (b) that the forfeiture did not extend to the lease of the reversion that had been granted to the tenant as well; and (c) that the claim for damages for interruption to its restaurant trade has not been carried out in the right way. The case is listed over four days in mid May. Landlord and Tenant Act 1954 renewals will receive a lot of attention again next year, underlining to the Law Commission that its consultation on the operation of the Act is both necessary and timely. Let me mention three cases, which illustrate the diversity of the arguments. First, in Leisurespace v CRT Property Investments in February, the Newcastle-upon-Tyne Crown Court will hear a dispute raising a number of issues as to the amount of the new rent (and whether there should be a rent-free period); a proposed narrowing of the permitted use; whether the reinstatement obligation in the new lease should extend to alterations under the current lease; and whether the existing rent review provision should be carried forwards. Second, and more inventively, in The Leadmill Ltd v MVL (2017) Ltd, Sir Alastair Norris, sitting in Leeds, will give judgment on an argument that section 30(1)(g) is incompatible with the tenant’s human rights, because it allows the landlord to take some of the goodwill of the tenant. Let me move from commercial L&T to residential, via agricultural law, where in Central Bedfordshire Council v Timbury, Luton County Court will try a claim for forfeiture of a farm business tenancy for arrears of rent, defended on the ground of a counterclaim for damages for breaches of repairing covenant. The case will raise interesting issues concerning remoteness of loss, with the defendant farmer alleging that, because the landlord failed to keep the roof in repair, his cattle’s milk production (and thus his profits) decreased. Residential I start this packed field with Patel v HDI Global Specialty SE, which is set for trial over five days in the High Court, with the claimant challenging the defendant insurers’ refusal to pay out for allegedly serious storm damage to their house, with issues about causation and quantum. This is interesting – and topical – given the current high number of property damage claims as climate change affects the frequency and intensity of incidents of damage. Another case to consider property damage, over four days at the end of January, but this time in the context of building work, is Serra v Harvey. The court will be asked to consider allegations of dust ingress, said to have caused substantial breaches of lease, nuisance and negligence. Next, those with an eye to detail will want to follow Eton Square Corporation & Loeb v Whealon in September, in which the Central London County Court will consider a possession claim which raises points of law concerning (among other things) the statutory interpretation of the Gas Safety Regulations in the context of section 21 notices. Enfranchisement and the Landlord and Tenant Act 1987 Apart from London Borough of Lambeth v Marsh, in which the First-tier Tribunal will consider in January what costs can be recovered by the landlord under section 60 of the Leasehold Reform, Housing and Urban Development Act 1993 (and whether the landlord can recover its costs of negotiating new lease terms, which were only agreed at the main hearing, while an application to the tribunal is pending); and another case to be heard in March to do with rooftop development value (about which I am unable to say more); the one to watch next year will be the Supreme Court’s consideration in April in Donovan v Prescott Place Freeholder Ltd [2024] EWCA Civ 298; [2024] EGLR 22 of issues of interpretation of the wretchedly drafted 1987 Act. Restrictive covenants Much more could be said about the queue of L&T cases heading for the courts, often in achingly slow time, given the burden those tribunals are under. But now it is time to head instead for the Upper Tribunal (Lands Chamber), to look at that other old stalwart of this column, applications to modify or discharge restrictive covenants under section 84 of the Law of Property Act 1925. Two cases illustrate this burgeoning field. In March, the Upper Tribunal will decide Stretton Milford Ltd v House, which concerns the proposed development of a golf course which is burdened by a covenant restricting development to one house (and limited ancillary staff accommodation) per acre. The developer wishes to develop to a much greater density (190 homes on a 27-acre site), and relies on both limbs of ground (aa). The case raises three principal issues. First, whether the covenant secures practical benefits of substantial value or advantage. Second, the impact and effect of the public interest limb, in circumstances where it is the developer’s active promotion of the site that resulted in its being taken out of the green belt and allocated in the local plan. The third issue is whether “money would be an adequate compensation for the loss or disadvantage the objectors would suffer” (the final words of section 84(1A)) – a matter on which there are surprisingly few cases. A month later, in Great Jackson Street Estates v Manchester City Council [2023] UKUT 189 (LC); [2023] PLSCS 143 the Court of Appeal will hear an appeal about the correct approach to ground (aa) in section 84 in a leasehold context, and whether the covenantee’s power to prevent a development except under a new lease on terms required by the covenantee is a “practical benefit” for the statutory purposes. Anyone for tennis? Lastly, while not exactly about a restrictive covenant, it will be fascinating to keep an eye on the bid by the All-England Club to try and head off a potential threat to its expansion plans. The club was granted planning permission by the Greater London Authority in September 2024 to build 39 new courts, including an 8,000-seat show court, on the former Wimbledon Park Golf Club across the road from its current site. The plans will nearly triple the size of the venue but have proved controversial, with vociferous opposition from some local residents. The issue for debate is whether the development land is held subject to a statutory trust, requiring it to be used for public recreation. Easements That other old warhorse in the real property sphere, easements, is back in the fray with a vengeance. First, in Cayman Shores Development Ltd v The Registrar of Land, the Privy Council will consider an appeal from the Cayman Islands on whether recreational rights are easements (revisiting issues determined by the Supreme Court in Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2018] UKSC 57; [2019] EGLR 1), together with a secondary issue as to what counts as a “mistake” on the land register for the purposes of rectification. After a period of relative calm, rights of light are also back in the courts. The only one we can currently mention is Cooper & Powell v Ludgate House Ltd, to be heard by the High Court in March. The court will be asked to consider a number of familiar questions, including (i) an examination of the Waldram methodology; (ii) whether to include reflected light in measurements and, if so, how, (iii) a reconsideration of the decision in Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17; (iv) the interaction of rights to light where the rest of the development is subject to appropriation under section 203 of the Housing and Planning Act 2016; and (v) the correct measure of damages in lieu. Adverse possession On 21 January, the Supreme Court is to hear the leapfrog appeal from the Upper Tribunal in Brown v Ridley [2024] UKUT 14 (LC); [2024] PLSCS 19 on the question whether, in order to satisfy the condition in paragraph 5(4) of Schedule 6 to the Land Registration Act 2002, the reasonable belief that the land belongs to the squatter has to last until shortly before the application is made, or whether having that belief for any 10 years will do. Boundary disputes Also in January, but this time in the County Court in Central London, Handy Cross Devt Co Ltd v Vanni Properties Ltd will be heard, raising issues concerning the boundary between a Hilton Hotel and a self-storage depot in High Wycombe, the resolution of which depends on the correct analysis of plans. In October 2025, the FTT will be treated to a second boundary dispute in Thomas v Ginn, a case in which the parties agree that the boundary is an ancient agricultural hedge, but part of which has been removed. The dispute therefore involves disputed evidence as to the location of the original line of the hedge. Mortgages A couple of these too will be heard in the County Court in Central London. First, in B2 Bridging LLP v Hart in March, a lender seeking an order for possession in default of the borrower repaying the loan, was confronted by a third party claiming to be the “real” borrower, claiming to be the victim of identity fraud, with no knowledge of the loan. Cue a searching forensic analysis. Second, in Principal Bridging Ltd v Lewis in June, an unregulated bridging lender whose loans must be made only for “business purposes” is seeking to save its right to recover the monies loaned in circumstances where the defendant is claiming the loan has been voided by statute because it was, in fact, made other than for business purposes. The case also raises the standard and very common argument as to whether the rate of interest that became payable on default is or is not a contractual penalty, which is still being worked out in the case law. Building safety Claims concerning the Building Safety Act 2022 are mounting, while the appeal against the landmark decision by the president and the deputy president of the Upper Tribunal in Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 (PC); [2024] PLSCS 16, concerning remediation contribution orders under section 124 of the Act, will be heard in the Court of Appeal in March, together with the appeal in Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point [2023] UKUT 271 (LC); [2024] EGLR 2. This will give the court the opportunity to consider in the round a number of issues arising in relation to remediation contribution orders under section 124 of the 2022 Act (Triathlon); and whether the service charge limiting provisions of schedule 8 of the Act are retrospective so as to make a sum demanded prior to the Act coming into force payable after the Act came into force (Hippersley Point). Also in March, the FTT will decide in Black v Parkbrace, Re Antonine Heights, whether it should impose a remediation order on the freeholder. Although in this case the existence of relevant defects is admitted, the freeholder’s position is that it is unnecessary for the tribunal to make a remediation order against it, as it is already subject to an improvement notice, and because the cost should instead fall on the developer. Protest injunctions In University of London v Harvie-Clark, the High Court granted an interim prohibitory injunction to prevent protests on campus which did not comply with the university’s Code and Visitor Regulations. It is expected that the trial to determine whether the claimant is entitled to a final quia timet injunction will be expedited, and will take place in the first half of the year. Telecoms This field continues to be litigation-heavy, with vanilla valuation disputes continuing, as well as many cases coming up for determination, quizzing many aspects of the Electronic Communications Code. These include On Tower UK Ltd v British Telecommunications plc [2024] UKUT 51 (LC) (in the Court of Appeal in May for two days, on the question whether the Code does away with contractual break provisions such that it is not necessary for both a code notice and a break notice to be served – with ramifications for the 1954 Act as well); On Tower v APW (known as Queen’s Oak Farm), on the nature of the prejudice required for a landowner opposing the imposition of a new Code agreement under paragraph 20 of the Code, is set for a two-week trial in October; AP Wireless II (UK) Ltd v On Tower UK Ltd [2024] UKUT 263 (LC); [2024] PLSCS 166 in which the Court of Appeal again is to deliberate whether an agreement conferring upon the tenant a right to occupy for a minimum term of 10 years and thereafter to continue until termination by 12 months’ notice served by either party created a term certain capable of being a lease; and Telefonica UK Ltd v TBE (Southern) Ltd, to be heard in February, on the question what is the required threshold for development intention in relation to a paragraph 31 Code termination. These are just a selection of the cases in which I and members of my Chambers are principally involved. There are many others. 2025 will be another interesting year. Guy Fetherstonhaugh KC is a barrister at Falcon Chambers Photo © iStock