Anna Favre, partner in the residential real estate team at Pemberton Greenish, London.
While I started my working life as a fashion writer and stylist travelling around the world, I had always been interested in legal frameworks. That passing interest evolved into fully fledged fascination when, by chance, I picked up a book entitled Freedom, The Individual And The Law, written by Geoffrey Robertson QC before the introduction of the Human Rights Act in 1998. Robertson is a leading human rights lawyer and will be familiar to most readers. I finished the book and, armed with little more than determination and hope, went back into formal education in my late 20s, embarking on an intended career as a lawyer.
My original interest was in human rights law and the repercussions that flowed (as was then the case) from having no equivalent to a charter of human rights. That early curiosity was quickly surpassed by a new focus on the abstruse rules of landlord and tenant – a complex mix of contract and land law, unique to England and Wales, which at the outset of my degree was mystifying. What appealed to me was the need to consider the same principles of inequality of bargaining power and fairness that had triggered my initial interest in the law – but with contract and real property thrown in. The challenge had been laid down and I made it my business to try to crack this latest academic nut. The rest, as they say, is history.
One of my practice areas is leasehold enfranchisement – that is, the right for a long leaseholder of an individual flat to extend her lease or, as a group, acquire the freehold of a block of flats. The law is complex, technical and regularly provides a trap for the unwary solicitor, leaseholder or landlord who fails to meet one of the many statutory requirements. Frequently, those requirements are buried in the legislation but a failure to observe them can lead to draconian consequences for the party concerned. It is not uncommon to be instructed by tenants looking for solutions when events have gone wrong with previous advisers. Persuading an intransigent institutional landlord to drop a technical legal point can present a unique set of challenges.
There have been many career highlights and I am privileged to practise in a firm widely recognised as the leader in residential landlord and tenant, and leasehold enfranchisement. However, one case that particularly stands out is my role in successfully securing the freehold of a house in London for a terminally ill client, despite significant issues with the title to the property, her entitlement to buy and the valuation basis. The case was unique for the urgency of the timing, the legal obstacles presented and the limited prospect of success. Despite the odds, we settled at a price significantly lower than my client had anticipated and on terms that favoured the tenant. The importance of the outcome to my client and the result achieved has remained with me throughout my career.
The Landlord and Tenant Act 1987 is widely recognised as being a poorly drafted piece of legislation. The preamble to the act says it is ‘an act to confer on tenants of flats rights with respect to the acquisition by them of their landlord’s reversion’. However, precisely what types of transactions are caught by the legislation remains unclear and there are ambiguities in key areas. One example arises on the grant of a lease of a shop or office within a residential building. The act is silent on whether such a transaction is caught – and while general practice is to assume not, non-compliance (where compliance is subsequently held to apply) attracts criminal sanctions. Practitioners may therefore be reluctant to take a view, with consequential cost to their clients.
Similar problems arise in respect of the demise of parts of a building which may or may not have ever been common parts, additional areas which are to be incorporated into an individual flat, or the demise of external areas or roof or airspace. Many such transactions appear to be caught by the act. Yet it is unlikely that it was ever the intention of parliament that the act would apply in those circumstances. Clarification is needed.
I would like to see an overhaul of the 1987 act (referred to above) and greater clarity on the mechanisms of enfranchisement legislation. These topics are currently under scrutiny by the Law Commission, so changes are afoot.
‘Must dash. I have just seen an old friend on the other side of the room.’ That is people’s social reaction when I say I’m a property lawyer.