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Andy Creer
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A key focus of Andy’s work is commercial landlord and tenant, from the interpretation of break clauses to terminal dilapidations claims.  She has a strong practice in lease renewals under the 1954 Act. She has recently acted on injunctions for Stagecoach, Cancer Research and TfL involving commercial premises.

She has a particular interest in the Electronic Communications Code and routinely acts for landowners seeking to remove mobile phone masts and other apparatus from their land. She recently gave a seminar on the implications of the New Code.

Her recent work on property damage includes the first trial in England & Wales on the liability for property damage from Japanese Knotweed, advising on a sinkhole and for loss sustained as a result of a landslip. She also has experience of some more specialist areas of property law, for example, mobile homes, canal boats and a nudist colony.

Andy is noted for her excellent forensic analysis skills and incisive witness handling. One expert building surveyor compared the experience to being “cross-examined by a smiling Doberman”.

Andy came to the Bar after a successful career in industry, latterly as the director of an international manufacturing company. This experience, allied with her first degree in business and finance, means she provides clients with commercially-focused advice.

Outside of work she enjoys skiing, scuba diving and travel (which is lucky as she is married to an airline pilot).

Reported Cases:

  • Farrar v Leongreen Ltd [2017] EWCA Civ 2211 – on whether a claim for mesne profits and a claim for possession against a trespasser are based on the same cause of action (‘claims in trespass’).
  • Spielplatz Ltd v Pearson [2015] EWCA Civ 804 – consideration of annexation of structures following the House of Lords decision in Elitestone v Morris [1977] 1 WLR 687.
  • Thandi v Sands [2014] EWHC 2378 (Ch) – dispute over beneficial interest in portfolio of 16 properties following bankruptcy.
  • Swan Housing Association Ltd v Gill [2012] EWHC 3129 (QB)- on the county court’s jurisdiction in cases involving adverse possession in light of the Land Registration Act 2002.
  • Aksu v LB Enfield [2012] EWCA Civ 60 – renewal tenancy opposed on ground (b).
  • Murphy v Wyatt [2011] EWCA Civ 408 – whether the Mobile Homes Act 1983 provided security of tenure retrospectively to a tenancy which did not preclude the siting of a caravan on a 1.7 acre site.
  • Chelsea Building Society v Nash [2010] EWCA Civ 1247 – effect of a lender’s settlement with one debtor on their joint liability.

Commercial Landlord & Tenant

Andy acts for both landlords and tenants in opposed and unopposed lease renewals under the 1954 Act, and has had cases involving all of the s.30 grounds, except (e). She is noted for her practical approach and numeracy, which is especially useful in reviewing expert evidence in dilapidations claims and rent valuations. She advises on the interpretation of leases, notably insurance provisions, break clauses and GAGAs. She has wide experience of claims involving forfeiture, insolvency and disclaimer.

Recent Work

  • Applying for injunctive relief following unlawful forfeiture of commercial premises.
  • Successfully opposing landlord’s claim for an unparticularised declaration as to the basis and terms of tenant’s occupancy.
  • Trial on a novel point of law as to the extent of liability of a guarantor for non-domestic rates following the insolvency of the tenant and the grant of an overriding lease.
  • Advising on the site aggregation strategy for a new development for the owners of the Burlington Arcade.
  • Acting for a major port on a PN claim following an expert determination on a rent review.
  • Advising on the s.18 statutory cap and supercession claims on multi-million pound premises.
  • Acting for Caffé Nero on opposed and unopposed lease renewals.
  • Advising a national charity on whether certain agreements attract statutory protection.
  • Acting for Pizza Hut on the trial of a preliminary issue. Successfully obtained a renewal tenancy where landlord opposed on grounds 30(1)(f) – redevelopment and (g) – own use.
  • Advising BT on commercial service charge liabilities.
  • Advising (amongst others) Manchester Airport Group and Essex County Council on cases involving the removal of mobile telephone masts and apparatus under the Electronic Communications Code.
  • Acting for Holland & Barratt on terminal dilapidations and a claim for breach of quiet enjoyment.

Development

A number of Andy’s cases arise in the context of site development, which require legal accuracy, pragmatic solutions and a fast turnaround

Recent Work

  • Obtaining injunction for breach of a right of way which was hindering on-site development.
  • Advising on boundary dispute and clearing restrictions from title.
  • Application in the High Court for specific performance of obligations within an overage agreement.
  • Acting as the expert in an expert determination on the interpretation of overage provisions.
  • Advising on obtaining vacant possession of a building used for religious purposes on a Wembley development.
  • Advising on evidence where a vendor had made misrepresentations about the local development plan.
  • Advising on mechanics of an option agreement.
  • Drafting an overage agreement (as a third party expert) in a ToLATA claim.
  • Advising developers on the enforceability of restrictive covenants and merits of potential claims.

Leasehold & Leasehold Management

Andy’s work includes both enfranchisement and lease extension claims, including considering the validity of s.42 and s.13 notices, on steps to find a missing landlord and Part 8 claims where a freeholder fails to serve a counter-notice.  She regularly acts for tenants, management companies and landlords in service charge disputes before the FtT and has had a number of recent trials on the appointment of a manager under s.24(1) LTA 1987.  She has a niche speciality in the law of mobile homes and caravans, and acts for both site owners and residents in pitch fee reviews and possession claims.

Recent Work

  • Farrar v Leongreen Ltd [2017] EWCA Civ 2211 – appeal on application of 2nd and 3rd categories of res judicata as espoused by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46.
  • Advising on whether a binding settlement has been reached in a lease extension claim.
  • Mediating on a qualified covenant for alterations in a residential block of flats.
  • Advising on claims involving the development of loft space and the usage of roof terraces.
  • Spielplatz Ltd v Pearson [2015] EWCA Civ 804 whether occupiers of a chalet built on a plot of land which was let as a plot have an Assured Tenancy.
  • Advising Barratt Homes on applications to vary leases under s.35 of the LTA 1987 and related professional negligence claims.

Real Property & Mortgages

Andy regularly advises on claims concerning the interpretation and enforceability of restrictive covenants, with a number of her cases including a competition law element. She has dealt with a number of complex title disputes involving rectification of the register and indemnities. She has successfully resolved a number of easement cases, working out the rights and obligations in the chain of historic transactions. Her work includes both specific performance and rescission of contracts for sale. She has acted as a legal expert in an expert determination involving the interpretation of an overage agreement.

Recent Work

  • Considering merits of purchaser’s purported rescission for fraudulent misrepresentation.
  • Williams v Network Rail Infrastructure Limited [2017] UK CC (02.02.17) – on proximate nuisance caused by Japanese Knotweed.
  • Considering whether a lease is void ab initio under s.2 of the Competition Act 1996.
  • Looking at express grant and prescriptive rights of way based on a ‘coal man’s’ access behind a row of terraced houses.
  • Advising LPA Receivers on the exercise of an option which was granted between related entities to prevent alienation of the title.
  • 4 day trial on the beneficial ownership of property raised in opposition to the making of final charging orders.
  • Obtaining a mandatory injunction at trial in a boundary dispute over an 8 inch wide strip of land.
  • Considering the rights of third parties, including those under sale and leaseback arrangements.
  • Opposing an application to register a restriction for Coutts & Co.
  • Successful 4 day trial seeking mandatory injunction for breach of restrictive covenants (& awarded indemnity costs).

Trusts of Land

Andy has been involved in a number of ToLATA cases, involving cohabitees and family members, and has handled constructive trust issues in contentious probate. She has advised on the replacement of trustees under the 1925 Act and claims for breach of fiduciary duty.

Recent Work

  • Acting in the High Court on a claim for a beneficial interest arising in a family context where legal title had also been transferred and charged.
  • Advising through BPBU on a potential beneficial interest as a defence to a possession claim.
  • Considering the Court’s powers to partition land as an alternative to an order for sale.
  • Successfully cross-examined partner and established that certain documents had been fabricated in 3-day ToLATA trial.

Banking & Finance

Andy regularly handles complicated mortgage related cases, including those involving undue influence and capacity issues. She has acted on a number of cases involving remedies for defective charges and the difference between equitable charges and equitable mortgages.  She advises on the marshalling of assets, subrogation claims and the powers of LPA Receivers.

Recent Work

  • Application by a mortgagee for a vesting order.
  • Advising on mortgagee’s claims for relief from forfeiture of both commercial & residential leases.
  • Considering whether a sale was effected by the agent of a mortgagee in possession or an LPA Receiver, so as to avoid a claim that the transfer was a transaction at undervalue.
  • 4 day trial on the beneficial ownership of property raised in opposition to the making of final charging orders.
  • Whether parties to a settlement agreement can ‘contract out’ of s.36 of the AJA 1970.
  • Acting for bridging loan company faced with defences of non est factum, fraud and breach of Consumer Protection Regulations.
  • Advising on the enforcement of various security given for a loan agreement (including personal and company guarantees, legal charges and a chattels mortgage).
  • Advising the Bank of Scotland on the rights of mortgagees in claims for possession of shared ownership leases.

Property Insolvency

Andy accepts instructions in cases involving property insolvency.

Recent Work

  • 5,000+ page trial on a claim by a Trustee in Bankruptcy under s.423.
  • Advising on the effect of the disclaimer of a lease and third-party rights.
  • Applications for vesting orders under both the Companies Act 2006 and Insolvency Act 1986.
  • Opposing a claim by an alleged beneficiary under a Deed of Trust against Trustees in Bankruptcy. Although witnessed by a solicitor, as a result of meticulous cross-examination the Deed was held to have been back-dated and a sham: Thandi v Sands [2014] EWHC 2378 (Ch).
  • Defending a claim for misfeasance by a trustee in bankruptcy brought by a beneficiary under an alleged trust of land.

Professional associations

PBA

Publications

Contributor to Risk & Negligence in Property Transactions (The Law Society) – publication late 2018.

Recent seminars

Recent seminars Andy has given include:

  • Wayleaves/Telecoms: Property Rights for the Digital Economy
  • The Emergence of Proximate Nuisance
  • Liability in Dilapidations
  • Fixtures at the End of Term
  • From Floods & Fires to Sinkholes: the Current State of the Law in Property Damage
  • Tactics in Lease Renewals
  • Property Issues in Site Development
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