Property & Planning

At Mercantile Barristers some of our members are qualified surveyors that have accumulated substantial knowledge and experience of the full spectrum of property and planning matters before becoming specialist barristers. As such, we are well accustomed to undertaking comprehensive legal work for professional, corporate and institutional clients with significant property interests.

Mercantile Barristers’ Property and Planning practice covers:

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Property Ownership & Property Development

Whether clients intend to acquire, own and occupy their property; or they intend to undertake development land assembly; employ architects, surveyors, engineers, arrange development funding; secure planning consent and then proceed with a development for subsequent disposal or retention in an investment portfolio, our property law specialists at Mercantile Barristers are able to provide sound commercial and legal advice throughout the entire process.

Invariably, several interests attach to a property in the development process, some of them often conflicting. Our barristers understand the relationship between these interests and can advise on practical and well-informed positions that protect and maximise the client’s commercial interests whether the client is the tenant, the owner, the lender or the developer.

Landlord & Tenant Work

When matters relate to investment property and occupied premises, our members at Mercantile Barristers can provide practical legal advice to landlords and tenants on matters arising from their specific circumstances.

For landlords, our barristers are used to advising on: Tenants Deposit Scheme and complying with Statutory Regulations; breach of covenant; drafting Tenancy Agreements; determination of leases; eviction of tenants; sub-lettings; security of tenure; lease renewals; rent reviews; and serving notices and issuing Possession Proceedings including Court representation

For tenants, our barristers are available to advise on: the correct notice and minimum notice period that your landlord is obliged to serve in order to gain lawful possession; representation at Court for unlawful eviction and proceedings to obtain compensation and reinstatement to a property; advice and representation for housing disrepair, including emergency injunction for urgent repairs and compensation claims for disrepair; advice and representation regarding disputes about Tenants Deposit; long leaseholder advice and representation on Service Charge, Management Disputes, Lease Extensions and Enfranchisement

Party Walls & Boundary Disputes

A recurring problem in the course property refurbishment and development relates to party or boundary walls. The Party Wall etc Act 1996 provides a statutory framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings.

A building owner proposing to start work covered by the Act is required to give adjoining owners notice of their intentions in the way specifically stipulated in the Act. Adjoining owners can agree or disagree with what is proposed by the building owner. Where they disagree, a dispute is deemed to have arisen and the Act provides a mechanism for resolving the dispute. It is also to be noted that operation of the Act is separate and distinct from obtaining planning permission or building regulations approval for the proposed works. The Act defines the main types of party walls as follows:

  • a wall that stands on the lands of 2 (or more) owners and forms part of a building - this wall can be part of one building only or separate buildings belonging to different owners
  • a wall that stands on the lands of 2 owners but does not form part of a building, such as a garden wall but not including timber fences
  • a wall that is on one owner’s land but is used by 2 (or more) owners to separate their buildings

The Act also uses the expression ‘party structure’. This could be a wall or floor partition or other structure separating buildings or parts of buildings in different ownership, such as in flats.

At Mercantile Barristers our property law specialists have a particular expertise in advising on all matters involving party and boundary walls and structures. We are regularly instructed to advise on the scope of works governed by the Party Wall Act; the next steps once a party wall notice has been served; assistance with drafting and issuing a notice before work is commenced. If there is an imminent dispute, our barristers are able to offer alternative dispute resolution services including mediation. Resolution can either be financial or injunctive. Examples include seeking to alter operating hours to prevent nuisance or an injunction to prevent further modification or to stop the offending works entirely pending satisfactory resolution.

Dilapidations and Alterations Advice & Disputes

Commercial leases are usually clear on the tenant’s dilapidations obligations. These will include the obligations to repair, decorate, clean and maintain mechanical and electrical systems. Landlords expect and are entitled to have their property kept in the state of repair stipulated by the covenants of the lease.

Where a tenant has failed to comply with their repairing obligations, a landlord may bring a claim for damages, also known as a "dilapidations" claim, against the tenant for breach of contract. The issue of dilapidations can arise during or at the end of the lease.

When advising in connection with dilapidations our members at Mercantile Barristers are able to guide landlords and tenants alike on; the obligations pursuant to the lease; the obligations set out by common law; whether caps can be imposed on the landlord’s ability to recover damages pursuant to the Landlord and Tenant Act 1927. If matters become contentious, our barristers can advise on the Pre-Action Protocol for claims for damages in relation to the physical state of commercial property at the termination of a tenancy.

Our barristers can act for both landlords and tenants in addressing the reasonableness of the extent of dilapidations provisions. It may be that additional expert input is necessary from expert building surveyors to prepare, or respond to, a schedule of dilapidations. Our barristers are capable of working with these experts as well as valuers, quantity surveyors and specialist mechanical and electrical engineers in order to protect our client’s interests.

Planning Law Advice and Planning Appeals

At Mercantile Barristers our barristers have extensive experience of town and country planning law. We are regularly instructed to advise on all aspects of planning, highway and environment law, from major regeneration projects to providing advice on planning enforcement. Our expertise in an advisory capacity extends to: compulsory purchases; drafting and negotiating section 106 agreements, advising on the community infrastructure levy; the National Planning Policy Framework; the national planning policy guidance; local plan policies; Environmental Impact Assessment Regulations; listed building and conservation area issues; appropriate use of planning conditions; certificates of lawful use and development; and enforcement matters.

In contentious circumstances our members at Mercantile Barristers are excellent at devising tactical and strategic planning dispute resolution strategies. Our barristers are capable of drafting tribunal and court papers and submissions and are available to advocate in all tribunals as well as in the Chancery and the Appellate courts.

Our barristers are capable of working closely with clients and their advisers, often from an early stage, so that planning proposals can be drawn up in a way most likely to succeed at the first attempt. Where planning consent has been refused our barristers have an excellent record in reversing the refusal by way of a resubmission or on appeal.

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