Phone: +44 (0) 20 7430 1221
Thomas Jefferies is an experienced specialist in property litigation. In his early years he worked in the litigation department of Freshfields, where the bulk of his work was planning and commercial landlord and tenant. He gained invaluable experience of the needs of solicitors and clients, which helped him develop a user friendly style when he began practice at the bar. He relishes court hearings, and has appeared at all levels from the LVT to the House of Lords, frequently against silks.
His practice includes all areas of property litigation, including leasehold enfranchisement, landlord and tenant, mortgages, general property litigation, including related professional negligence.
In his early years of practice he was involved in planning inquiries and appeals, and he now enjoys bringing his experience to bear in litigation raising planning and highways issues, such as enforcing planning obligations and disputes over obligations to use reasonable endeavours to obtain planning permission.
He is a CEDR accredited mediator, and takes great satisfaction helping parties reach a settlement out of court in this growing part of his practice.
Leasehold enfranchisement and Rights of First Refusal
Tom was the winner of the Barrister of the Year award at the Enfranchisement and Right to Manage Awards 2015. He has substantial experience and expertise in this highly specialist area, and regularly appears at hearings in the FTT, Lands Tribunal and courts for tenants of the big London Estates and both landlords and tenants elsewhere. He has appeared in many of the leading cases including Sportelli, Cravecrest and Jewelcraft. Some further examples of his work are given below. He enjoys both the legal and valuation issues, and works closely with some excellent valuers. He takes pride in saving or making money for clients by identifying and maximising the benefit of valuation arguments.
One of the issues which regularly arises in Tom’ work is whether a property amounts to a “house” for the purposes of this Act. In 2015 he acted for the successful tenant of a shop and upper parts in Jewelcraft Limited v Pressland , and in 2017 has acted for the tenant of a public house, and in cases concerning mixed use office and residential buildings in Portland Place, Mount Street and Wimpole Street, one of which is heading to court in 2018. He has unusually extensive experience of cases involving a section 9(1) valuation, having appeared in some 10 such cases which have reached the Tribunal. The latest such case was recently determined by the Tribunal in his client’s favour. He has also recently appeared in an important case on whether demolition and construction of a new house can be disregarded as an improvement, Portman v Jamieson.
Common issues include valuation, validity of notice and counter-notice, adequacy of the premium offered, and deemed withdrawal. Issues also often arise as to the extent of the demise. In several cases the LVT hearing has included a determination of whether the tenant has acquired additional land by accretion. Tom has acted for a number of tenants who have successfully resisted the imposition of standard term leases by Cadogan Estate. Recently he has acted for landlords and tenants in a number of cases involving very short leases, raising issues about relativity, deferment rate, discount for 1989 Act rights, and the effect on value of covenants against assignment in the last seven years. An example of a recent lease extension case is WarrenCourt.
Tom has acted for both landlords and tenants in a number of very high value collective claims.
The potential for development frequently gives rise to complex legal and valuation issues, including whether the landlord can grant airspace leases to retain a share of development potential and whether a roof development is consistent with the existing leases. In the post recession boom he acted for tenants of super prime properties resisting claims for development value, such as 2 Herbert Crescent (Cadogan v 2 Herbert Crescent Freehold Limited), 39 Wilton Crescent (Themeline v Vowden) and 38 Wilton Crescent (Cravecrest v Duke of Westminster) all of which involved appeals to the Upper Tribunal or the Court of Appeal. Tom also acts for landlords claiming development value, such as Royal Tower Lodge securing a premium of £860,000 for the value of a development of 8 flats on the roof of an existing block. More recently he acted for the owner of a block in Chelsea which concerned telecoms leases of equipment on the roof, including whether they could be acquired, what they were worth, and on the possibility of leasebacks.
Recently Tom has been involved in a number of cases relating to the acquisition of overriding leases on the Grosvenor Estate, which raise difficult issues of statutory construction and valuation. The most recent of these, which went to the Court of Appeal, is Regent Wealth Ltd v Wiggins.
Currently he is involved in cases concerning whether modern developments with underground car parks amount to one or more “self contained building”, and whether tenants of live work units which now have permitted residential use can claim to be qualifying tenants.
Rights of First Refusal.
Tom regularly advises on issues arising under the Landlord and Tenant Act 1987, including whether s5 Notices have to be served, on avoidance schemes, and on enforcement against purchasers. He also frequently advises on the interplay between rights of first refusal and collective enfranchisement, including the relevance of s5 notices on the premium payable.
More examples of his work appear in his list of cases.
Tom is a member of the Association of Leasehold Enfranchisement Practitioners (ALEP) and also lectures regularly on leasehold enfranchisement. In 2017 he gave lectures at conferences organised by News on The Block, ALEP, CLT and MBL.
Landlord & Tenant
Thomas has acted in commercial and residential landlord and tenant disputes throughout his career. Topics include the following.
Thomas has acted on opposed renewals for institutional and private landlords and tenants, ranging from securing possession of 60 London Wall from dozens of tenants, acting for TFL in connection with the redevelopment of Covent Garden tube station, and acting for a hairdressing salon in Kensington seeking to resist a ground (f) claim. An interesting recent case in the Court of Appeal concerned a lease renewal opposed on grounds (a), (b) and (c): Youseffi v Mussellwhite. He has acted on numerous unopposed renewals where issues have arisen as to lease terms including break clauses, lease length, and rent including for Mapeley as agent for the VOA. He has lectured several times in the last few years on ground (g).
Thomas has acted in cases concerning construction of rent review clauses, application of assumptions, rental disputes, and challenges to arbitration awards. He is co-author with John Male QC of “Rent Review, a casebook” published by the RICS.
A regular part of his practice, although most disputes settle. He acted for the successful tenant in Fitzpatrick v Exel Holdings, where it was held that identical obligations in lease and sub-lease had different effects. His most unusual case concerned a Victorian water powered lift.
Service charge and management disputes
Regular advice on service charge issues for commercial and residential property. Thomas acted for the successful tenants in a five day dispute with Freshwater over the reasonableness of the costs of a £2m major works contract to a block of flats in north London. He appeared for the successful tenants in a dispute as to whether sums payable by them as members of the management company were were variable service charges within the definition in s18 of the 1985 Act:63 Rope Street. He has acted for a tenant owned management company resisting the appointyment of a manager, and recently acted for the owner of a mixed use development resisting an application to vary the leases of the residential flats: 48 Featherstone Street, LondonEC1.
Disputes concerning lease or licence, accretion, forfeiture, consents, break clauses (such as Intergraph (UK) Ltd v Wolfson Microelectronics Plc and Royal Bank of Canada v Secretary of State for Defence), the effect of an oral lease for longer than the head lease (Parc Battersea v Hutchinson) and enforcement of covenants. He acted for the tenant of Royal Mint Court, an extensive office development, in resisting attempts by Delancey to forfeit an intermediate lease. Recently he acted for the landlord enforcing a £5m rent claim against a guarantor which sought to allege an implied surrender: Padwick Properties v Punj Lloyd Ltd.
In the last recession Thomas acted for a number of banks enforcing mortgages which secured business lending. He regularly dealt with defences such as undue influence, misrepresentation, forgery, and sale at an undervalue, and complex subrogation issues. Reported cases included Banco Exterior v Thomas, CA and Corbett v Halifax CA. More recently Thomas has advised lenders on remedies in the context of mortgage fraud and solicitors negligence.
Thomas is the contributor of the mortgages section in Halsbury’s Laws of England, now in its 5th Edition, 2010.
General Property Litigation
It is not possible to list all areas covered, but common areas of work include:
Disputes as to whether rights have been acquired by prescription and what amounts to substantial interference, such as different types of gates and controlled barriers, ancillary rights to make up roads and liabilities for repairs. A more unusual case concerned a claim that a wind turbine would interfere with shooting rights. Spaces Personal Storage v RSN concerned claims to rights of parking on an industrial estate road, and the ability of the owner to impose a scheme of control.
Development and sale agreements
Tom regularly advises parties to sale and development contract on their ability to enforce or escape their obligations. Examples include acting for a major retailer (A) seeking to enforce agreements to sub-let half of certain stores to another major retailer (B). B sought to rescind on the ground that the planning permissions which had been granted were granted subject to onerous conditions as defined in the relevant agreements. The disputes were referred to confidential arbitration, and were satisfactorily resolved. Tom also actedfor the major housebuilder BDW in a £1.5m dispute (BDW v Opticlife) over whether a purchaser could avoid completion as a result of a variation from the contractual specification for a block of new flats. Another interesting recent dispute concerned a sale of reversions on a block of flats at auction, where the contract failed to specify that the vendor required lease backs of the units let on ASTs. The vendor claimed rectification. A good settlement was achieved. More recently Tom advised a London Council on its ability to terminate an agreement for the redevelopment of a large housing estate, and on potential claims for damages.
Numerous claims both before and after the 2002 Act. Cases include Lyn Lewis v Environment Agency, Grey v Howland and a claim by a scrap merchant to have acquired title to a yard within an old Pirelli cable factory. One reported case concerned the application of limitation periods to government bodies (Hill v Transport for London), and Thomas has acted for the Secretary of State for Transport in several cases concerning claims for adverse possession of land adjoining motorways. One of these, Secretary of State for Transport v Quest, raised interesting issues as to the relationship between the Limitation Act and the Land Registration Act 2002.
Thomas has obtained urgent injunctions and possession orders against protesters. In one case proceedings were served by an announcement over a loudhailer from a helicopter, and an order for possession was obtained the same day.
Regular advice on the construction and enforceability of covenants, modification and the powers of public bodies to override covenants. In a typical recent covenant case, Thomas acted for a developer who proceeded with a housing development and faced a claim for an injunction or damages for breach of covenant. Recently Thomas has acted for developers seeking consent for basement developments in Mayfair and Belgravia under the Grosvenor Estate Management Schemes created under the Leasehold Reform Act 1967.
Issues frequently arise as to the relationship between land ownership and highway rights. In Secretary of State v Baylis Thomas acted for a purchaser who successfully obtained damages for failure to give vacant possession on completion where the land sold was subject to highway rights. In Goodmayes Estates v First National Bank there were issues as to the extent of the highway boundary, and the rights of the highways authority to carry out improvements at or near the boundary.
Registration issues often arise in the context of property disputes, and Land Registry adjudication is now a common forum for resolving disputes. Regular disputes involving registration issues include urgent removal of notices (Sainsbury’s v Oliveview), rectification, claims for compensation (Hanson v Land Registry) and adverse possession and boundary disputes, such as Secretary of State for Transport v Quest.
Thomas acts for claimants and defendants in professional negligence cases related to his areas of expertise, including solicitors and valuers negligence. Cases have concerned such issues as duties to third parties (Dean v Allin & Watts), solicitors negligence in enfranchisement, mortgage, restrictive covenant and conveyancing cases, and the liability of local authorities for negligent searches (Gooden v Northamptonshire CC).
In his early years of practice he was involved in planning enquiries and appeals. He no longer does pure planning work, but now enjoys bringing his experience to bear in disputes raising planning and highways issues. Examples include:
Tom acted in an arbitration between major retailers as to whether planning permission granted for division of a store contained “onerous conditions” as defined in an agreement for lease.
Reasonable endeavours to obtain planning permission
In Jordan v Star Energy a claim was made against Star for damages for breach of an obligation to use reasonable endeavours to obtain planning permission for an underground gas storage project. Star had carried out preparatory work but cancelled the project after an abandoned well was found to be leaking gas on the site of a new school. It was a claim for loss of a chance, and there were issues as to construction of the agreement and as to what the outcome of a planning application would have been in the light of safety issues. Thomas acted for Star led by William Hicks QC.
Enforcing s106 Agreements
Thomas has now acted for Councils in four cases enforcing planning obligations against developers seeking to escape or reduce their liabilities. Examples are the Oakmesh case, the first case where an order for specific performance was obtained to enforce a s106 agreement, and Renaissance v West Berkshire DC, in which a developer defended a claim for contributions to local infrastructure on the grounds that the formulae for calculating contributions had changed, and it would be unlawful for the Council to claim any more than would now be payable.
In Castlebay the issue was what amounted to “planning permission” for the purpose of starting time running for exercising an option. In several other recent cases, the time for exercising the option was linked to allocation in an “adopted local plan”, and the issue was how the contract was to be applied to the changed landscape of LDFs and LDDs resulting from the Planning and Compulsory Purchase Act 2004.
Assets of community value
Part 5 of the Localism Act 2011 give local groups the right to bid for land of community value which the owner wants to dispose of. The right can apply to a village shop, pub, community centre, museum, village hall, playing fields, playgrounds and other amenity areas. The corollary is that these rights can interfere with or delay development projects. Thomas has advised and lectured on these provisions.
Thomas is a CEDR accredited mediator, and takes great satisfaction helping parties reach a settlement out of court. Recent examples of cases where he has acted as mediator include:
- a dilapidations claim
- a solicitors negligence claim
- a dispute between owners of a marina development and the neighbouring marina as to rights of way
- a dispute between the owner of a shopping centre and a tenant over whether a break clause had been validly exercised
- a dispute between participating tenants in a collective enfranchisement as to their rights to share in the freehold
- a dispute as to whether advertising hoardings were a trespass, and what damages were payable
- a dispute as to rights of access to residential development land
- a claim for damage to valuable works of art caused by flooding
- dispute over rights over a common driveway
- claim for damages for trespass and interference with easements against a backdrop of compulsory purchase
- three party dispute involving a claim for the freehold of a property in Mayfair under the 1967 Act and a related solicitors negligence claim
- claim on an indemnity arising out of an enterprise zone investment agreement
- valuers’ negligence claim relating to the impact of the creation of intermediate leases on the price payable on a collective enfranchisement
- claim for rent arrears and dilapidations
- claim for compensation on compulsory purchase of land for highway works
- a proprietary estoppel claim
- a claim for possession of a farm
Thomas graduated in English from Durham University. He then studied law at the City University, obtaining the Diploma in Law. He was awarded a Harmsworth Scholarship by Middle Temple and was called to the Bar in 1981. He was a founder committee member of the Property Bar Association. He is a CEDR accredited mediator.
Thomas is recommended in the real estate litigation sections of Chambers & Partners, Legal 500 and Legal Experts. Comments in recent years include “..an excellent lawyer who makes his points with precision,” “hands on and sensible,” “his commerciality really distinguishes him,” “his “sound advice, proficient legal skills and inventive ideas” see his profile rising in this market,” “practical and commercial advice” and “hugely user friendly.”
Articles and Presentations
- Offices To Flats Enfranchisement Issues
- Recent Developments in Enfranchisement and New Lease Claims
- Collective Enfranchisement: The participants and participation agreements (Paper)
- Collective Enfranchisement: Participating tenants and agreements (Presentation)
- Rooftop Development: Dealing with Tenants’ Statutory Rights
- Rooftop Development: Dealing with Tenant’s Statutory Rights
- Enfranchisement of Mixed Use Premises
- Basement Development: Property Law Issues
- Ground G
- Collective Enfranchisement: The Participants
- Collective Enfranchisement: What can be acquired?
- Leasehold Reform Act 1993- Will the notice cramp my style?
- Right to bid for assists of community value under the Localism Act 2011
- Reasonable Endeavours
- Enforcement, Modification & Discharge of s106 Agreements- Enforcement & Defences
- Prostesters, Gypsies & Travellers: Possession after Meier- Tres
- Dilapidations- DIY for the Landlord
- Exercising Rights of Entry
- Experts Reports
- The Duty to get the Best Price on the Sale of Land