How To Resolve A Property Dispute

Beverley Vara

Overview

Beverley Vara is property law expert who after many successful years as a practising lawyer became a barrister in 2013 and now practices from Maitland Chambers as a full time neutral handling mediation, expert determination and other dispute resolution methods. Following her impressive performance on the CEDR Mediator Skills Training Course in 2012 and subsequent accreditation, Beverley worked as a conciliator on a number of CEDR’s consumer mediation schemes, most recently the British Association of Removers. She was admitted to the CEDR U.K. Mediator Panel in April 2013 and has undertaken mediations in a variety of commercial disputes on a regular basis since that date.

Professional Background

Beverley worked as a solicitor for 20 years, the last 10 of which were as a partner at the law firm Allen & Overy where she specialised in contentious property work (commercial and residential) and advised on a full range of real estate disputes related to both. Her areas of expertise included landlord and tenant disputes, such as enforcement and interpretation of lease covenants, rent reviews and lease renewals, as well as sale and purchase disputes, development disputes, professional negligence actions and party wall and neighbour disputes and disputes relating to the various forms of property finance..

Expertise

 Banking & Finance

 Construction & Engineering

 Insolvency

 Planning

 Professional Negligence

 Property

CEDR Accreditation: CEDR Panel Admission:

2012 2013 Languages: Location: English United Kingdom

“I thought Beverley was extremely professional and knowledgeable

in the way she dealt with the issues. It was not the easiest mediation in terms of the positions of the parties with regard to the claim and in terms of the various personalities at play but Beverley treated the parties fairly, challenged us when appropriate and kept the mediation moving in order to achieve a settlement.”

Beverley Vara

Dispute Experience

Banking & Finance

 A Property Authorised Investment Fund on its investment in a unit trust where its

co-investor failed to inject its share of the required capital to enable the unit trust to pay a premium due to a landlord so exposing the long leasehold assets of the trust to the threat of forfeiture.

 A financial institution on a dispute with its joint venture partner on the appropriate sale

value of various properties (and hence on the value of a put and call option and the price to be paid by the financial institution for the joint venture partners' interest). The case settled at mediation.

 A Spanish bank on mortgage enforcements for British residents' holiday homes and recovery

of monies due within the UK.

 An investment bank in defending various claims to the financial ombudsman regarding

alleged mortgage mis-selling.

 As special servicer on the default of a large loan secured on a London office block and the

potential sale of the charged property, including issues such as alleged undeclared trusts over the asset.

 An investor on the implications of threatened forfeiture proceedings on the refinancing of the

debt secured on the property under threat.

:PFI / PPP

 A NHS Trust on a variety of disputes with its PFI provider, mainly concerning the provision

of hard and soft FM under the PFI contract and in respect of the payment provisions of the project agreement. A substantial number of the disputes settled at mediation following an adjudication and the issue of court proceedings.

 A NHS Trust on restrictive covenants that had to be removed in order that a new hospital

could be built.

 A NHS Trust on a judicial review of the planning permission for a new hospital brought by

an aggrieved neighbour.

 On a site clearance strategy for the construction of a new football stadium including on

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 On various disputes with a neighbour to a large sports stadium concerning access, the

interpretation of various restrictive covenants and the operation of concessions.

Construction & Engineering

 Dispute between a main contractor and employer in a building contract for unpaid invoices

with a counterclaim for defective work.

 A corporate occupier in a breach of warranty claim against the contractor who built a

Regional Head Office building for defective cladding to the extensor walls.

 Acting for a landlord in a claim by a tenant that the floor loading in a building was not in

accordance with the specification in the agreement for lease. The claim was successfully settled by an agreement that varied various other clauses in the lease to provide both parties with an arrangement which suited them better.

 Acting for a landlord in claims against the M&E contractors retained in relation to a large

multi-let premises where the chiller units were routinely malfunctioning.

 Acting for a tenant of a large office building in claims against the landlord who had given

warranties as to the state of repair of the premises but where the butt welded joints in the air-conditioning system were defective. The settlement involved a creative solution allowing for on-going monitoring and a waiver of dilapidations liability but without the need for either party to pay for the tenant to move out whilst remedial works were undertaken.

 A retailer who was anchor tenant in a shopping centre which was extended in a way which

adversely affected the centre's footfall in a claim against its landlord for derogation from grant, breach of covenant for quiet enjoyment and breach of express and implied covenants.

 A residential occupier on the failure of their M&E installation causing the temperature to

vary and cause damage to valuable works of art.

 A financial institution as tenant on defective M&E work leading to newly fitted out premises

being flooded prior to occupation.

:Planning

 An NHS trust on a challenge to its redevelopment plans by a neighbour who brought Judicial

Review proceedings. The proceedings were withdrawn after negotiations.

 A University on a Judicial Review of a refusal to grant planning permission.

 A residential occupier on a judicial review of the decision to grant planning permission for

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 A large corporate on the decision to refuse planning permission for the redevelopment of its

headquarters building.

 A financial institution on a judicial review of a local authority decision to temporarily stop

up an access road needed by its headquarters' building.

 A Property Unit Trust on a claim against a local authority for failure to disclose a planning

permission as part of a local search which would have illustrated a user incompatible with the planning permission.

Landlord & Tenant

:Breach of Alienation / User Covenant

 Many corporate tenants, particularly in the context of M&A sales, where the landlords had

unreasonably withheld or delayed consent to assign or sublet.

:Break Option Disputes

 a tenant in various disputes with its landlord over service charge contributions and in

exercising its break option in its leases which was made more difficult by an unusual definition of "premises" which included chattels.

 a landlord in a reported case where we successfully argued that the tenant had failed to

properly exercise the break option in its lease because it had failed to serve notice in accordance with the lease.

 a landlord in a claim by a tenant that it has exercised its break properly although it was the

landlord's view that notice had been served on the wrong person. The claim settled on the basis that the lease had not been broken and would continue.

:Collective / Leasehold Enfranchisement

 A landlord in a collective enfranchisement of a substantial residential block in Knightsbridge.

A number of issues about the extent of the demise arose and were resolved amicably with the purchaser tenants.

 A collection of tenants on a major collective enfranchisement claim. Also advising on a

back-up leasehold extension claim and a scheme to maximise the value of the remaining leasehold interest in the premises.

 Various landlords and tenants in leasehold extension claims, considering various issues such

Beverley Vara :Dilapidations

 A multinational corporation in a landlord and tenant dispute in relation to a terminal

dilapidations claim, which was vastly overstated and challenged by our client, the tenant. The dispute settled for a greatly reduced sum at mediation.

 A major fund on a dilapidations claim against its former tenant, and in particular on its

former tenant's S18 defence. The claim settled pre-trial with payment by the tenant of a substantial sum.

 Numerous landlords and tenants on the service of and legal implications of, dilapidations

schedules.

 A property fund on its claim for dilapidations where the tenant raised a S18 defence which

the landlord did not consider legitimate. The matter settled at mediation.

:Distress

 Administrative receivers/LPA Receivers of various retailers with multiple outlets in opposing

landlords' attempts to distrain for rent.

 Acting for a landlord whose attempt at distress had been challenged by the tenant.

:Forfeiture / Relief from forfeiture

 A large retailer considering Administration in opposing various landlord's attempts to

re-take possession of the property by either court proceedings or peaceable re-entry.

 A substantial tenant on the settlement of a landlord's forfeiture action after negligent advice

from its former solicitors concerning an intra-group assignment led to the tenant breaching the terms of a lease, so rendering it liable to forfeiture.

 A purchaser of the business of a company in liquidation on contested forfeiture proceedings

brought by the landlord of the insolvent vendor to recover possession of a property which was temporarily necessary for the on-going business. Liaising with solicitors for the vendor in the tactics to be deployed to delay and oppose the claim for forfeiture.

 A variety of landlords in forfeiting leases for various breaches both by proceedings and

peaceable re-entry.

 Administrative receivers of a tenant holding a valuable lease whose landlord purported to

exercise peaceable re-entry. Obtaining an interim injunction over the weekend to remove the landlord from the premises. The matter settled with the sale of the lease to the landlord at a favourable price.

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 A retailer in possession proceedings in relation to the residential premises above a high

street store.

 A hotelier in bringing residential possession proceedings against long term occupants and

staff of a London hotel where possession was needed urgently as contracts had been exchanged for the sale of the hotel with vacant possession.

 Dispute between a landlord and a high value residential tenant (and its lenders) over alleged breaches. Issues of waiver of the right to forfeiture and of limitation were involved.

:Landlord and Tenant Act 1954

 The landlord of a large building in Central London on obtaining vacant possession for the

purpose of redevelopment. We worked to a strict timetable to obtain vacant possession in respect of a large number of different tenancies; necessary for the development to take place within our client's preferred timetable. We had to be flexible in adopting a number of different strategies according to the effect which the development was going to have on each tenant's premises.

 A landlord in contested lease renewal proceedings opposing the grant of a new lease on the

grounds of redevelopment and the offer of suitable alternative accommodation.

 A landlord in contested lease renewal proceedings opposing the grant of a new lease on the

grounds of persistent failure to pay rent, breach of other covenants and failure to repair.

 A significant property fund in obtaining vacant possession of several multi-let properties

occupying an intended development site in central London.

 A landlord in devising a strategy to make a large multi-let property ready for redevelopment

by removing security of tenure from various tenants (using a mixture of negotiation and contested lease renewal proceedings) and replacing existing leases granted inside the Act with Act excluded leases so maintaining the income stream until the client was ready to redevelop.

 A tenant in opposing a landlord's contested lease renewal proceedings in order to obtain a

larger settlement sum for relocation than statutory compensation.

 Numerous tenants in uncontested lease renewal proceedings.

 Numerous landlords in uncontested lease renewal proceedings.

 Contested lease renewals. The landlord wanted vacant possession to redevelop. The tenants wanted to remain in occupation, but agreed during the day to leave in return for payment of a sum. The landlord alleged various breaches of lease such that statutory compensation under the Landlord and Tenant Act 1954 would not be payable.

Beverley Vara :Landlord And Tenant Insolvency

 A property company regarding the purported repudiatory breach and consequent

termination of a lease to a company in liquidation of a commercial property and on the position of the tenant's guarantor.

 Numerous landlords on issues arising out of contested distraint.

 Numerous tenants, particularly insolvency practitioners, on purported distraint by their

landlords.

 A landlord on its remedies when a tenant proposed to renegotiate its lease under threat of

entering into a CVA.

 A dispute between a landlord of commercial premises and a tenant who he alleged had failed to operate a break clause correctly, so causing the lease to continue beyond the break date. The particular complaints were failure to remedy dilapidations in accordance with the lease and failure to vacate by the break date. There were many disputed facts and the tenant felt aggrieved as it said the landlord had been more casual and less legalistic in the relationship over many years.

 A commercial property dispute where an injunction had been sought against a landlord who had attempted forfeiture of a lease without a proper entitlement to do so. The parties also had outstanding issues over the level of rent as a rent review was outstanding. By the date of the mediation the tenant had been allowed back into the premises by consent.

:Licencing Applications

 An occupier in relation to licensing matters

 A bank in relation to various licencing matters relating to the investment forming their

security.

:Neighbourhood

 A property company in relation to strategic advice on a possible redevelopment of a major

mixed use development in Central London.

 A landowner of a substantial office development in London on its dispute with the developer

of the site. The matter settled on confidential terms prior to trial.

 A corporate occupier on nuisance issues arising from redevelopment of a large construction

site in the City of London. The matter settled after we had secured an interim injunction restricting nuisance from vibration, blocked access and from water ingress into the neighbour's premises.

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 A serviced office provider on nuisance issues arising from redevelopment of neighbouring

premises. The matter settled pre-proceedings by agreement of a neighbourly matters agreement.

 A developer on a threatened nuisance claim by a neighbour to a substantial development site

in Central London.

 A landlord on a claim brought by one of its tenants alleging noise nuisance against one of its

other tenants, a retailer.

 A property fund on its potential exposure to claims for rights to light arising from its

development of a Central London development site. This included pre-proceedings correspondence with neighbours who were asserting rights of light.

 An adjoining owner on infringement of its rights of light arising out of development on a

neighbouring site.

 A property company on infringement of its rights of light by a neighbouring development.

The developer brought proceedings for declaratory relief as to the infringement which were compromised pre-trial on favourable terms. A neighbourly agreement dealing with potential nuisance issues during development was also agreed.

 A property company on infringement of the rights of light by a prospective development of a

building which it was selling.

 A Property Unit Trust on noise nuisance claims brought by residential occupiers adjacent to

a Central London development site.

 A developer on various reciprocal agreements with the owners of neighbouring development

sites and the impact the restrictions placed on development.

 An administrative receiver on the release of various Restrictive Covenants which were

impeding the development of a prime development site.

 A property company whose developer neighbour claimed adverse possession over a strip of

land necessary for its development but we were able to establish the adverse possession had not been made out and hence that the property company had a ransom strip.

 A residential occupier on the nuisance caused by the landlord erecting scaffolding outside her

bedroom window.

 A multi-faceted dispute between two neighbours, one of whom was a former tenant of the other and where a related party had a long lease of other property within the same building. One owner alleged against the other, his neighbour and former tenant that a wall dividing the properties had been built in the wrong place. He alleged nuisance, trespass and failure to yield up. The other party claimed that a) the wall was in the right place, b) if not, it was demised on a long lease to a related party so the neighbour had no complaint.

Beverley Vara  A residential neighbour dispute. The parties lived in a converted house divided into two lateral flats. They disagreed about the exact scope of the demise of each flat (the leases were not well drawn and were contradictory) and about the outside boundaries; both alleged noise nuisance against the other and the lower flat alleged nuisance by water ingress, one flat alleged the owner of the other had stolen various chattels left in the (disputed) common parts. The other flat alleged a physical assault on a guest against the owner of the first flat. The owner of one flat was also the owner of the freehold making the owners of the remaining flat feel constrained in what they could do to alter and improve their home.

 Dispute between two neighbours concerning multiple boundary and trespass issues.

:Property Sales and Purchases

 Construction dispute between an employer and a main contractor over unpaid fees, a

disputed contract, a disputed termination and alleged defects in works and alleged slanderous comments made on a radio station.

 Dispute between the owner of a substantial residential property and a neighbouring business

concerning rights of way and trespass. Settled by several land swaps, grant of a right of way and financial payment.

 A leading accountancy firm who were the administrative receivers for a company that

entered into contract with a major house builder for the sale of land previously used for industrial purposes for residential development. The contract was conditional upon the company releasing a restrictive covenant in favour of the local council (and we successfully obtained this release via proceedings).

 The owner of a former motorway service station on a dispute regarding satisfaction of

conditions precedent in a contract of sale to a developer. The contract was conditional on certain environmental remediation works being completed as part of the site which had formerly been used as a petrol station. We advised the client on tactics to best position itself to prove discharge of the condition in light of the complex contractual terms, which secured a favourable outcome whereby the developer completed the purchase.

 A property investment company on implications of existing litigation on the sale of a large

estate in Knightsbridge.

 A property investor on the implications in terms of rights of light and restrictive covenants

for the purchase of an acre of prime residential land in Chelsea.

 A property company on the implications of an intended sale of a large office building which

had a rights of light claim against a neighbouring development in the City of London.

 A vendor of a large industrial plant where the purchaser attempted to avoid the sale by

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 A Property Unit Trust on the implications of a non-disclosed planning permission on its

purchase of a property where the local authority was now challenging the use of the property by the tenants as being non-compliant with the planning permission.

:Rent / Rent Review Disputes

 A retailer in a dispute over the amount of rent payable under its lease of a large shopping

centre store arising out of an ambiguous turnover rent clause.

 A large corporate tenant in a substantial rent review. The matter was complicated by the

fact that the tenant was no longer occupying the premises and the ultimate settlement included terms for a surrender of the lease.

 A large financial institution tenant in a rent review for a large office block. The matter

ultimately settled but not before experts' reports in relation to lifts, cladding, roofing, M&E and welding techniques had been obtained and exchanged.

 A multi-national retailer tenant in a rent review of a large store in Manchester. The matter

successfully settled during the course of the arbitration itself.

 A private landlord in a rent review of an office block he had recently acquired which was let

to a government entity. Questions concerning representations made by the tenant to the previous landlord were raised. The matter proceeded to arbitration where the landlord was successful.

 A variety of landlords in recovering rent arrears by a variety of techniques: statutory

demands, forfeiture, notices pursuant to S6 Law of Distress Amendment Act 1908, court proceedings against the tenant, guarantor or original tenant or drawing down from rent deposits or under bank guarantees.

 A retailer in a dispute concerning the level of rent payable following review in light of an

arguably ambiguous top up rent clause.

 A landlord defending a claim by a tenant for repayment of a quarter's rent paid in full

following exercise of a break option part way through a quarter.

:Service Charge Disputes

 A landlord of a multi-let commercial premises where the agent had claimed service charges

from the tenants on a different basis from that set out in the lease.

 A landlord of a residential block where the total service charge contribution by the tenants

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 Various landlords where the tenants have challenged the legitimacy or validity of charges

incurred.

 A landlord in claims brought by its tenants for derogation from grant and breach of

covenant as a result of a faulty buzzbar causing power surges and outages in a multi-let commercial building.

 A landlord in a claim against a restaurant tenant for releasing grease and food waste into

the drainage system so causing a blockage.

 A landlord in a claim against a tenant running a wine bar for various breaches including

causing a fly infestation, breaching the smoking ban and allowing customers to cause a nuisance (noise and fighting causing damage to plate glass windows).

:Squatters

Acting for a variety of landlords of commercial premises which had been occupied by squatters and obtaining vacant possession, example cases include:

 A shop where the squatter attended court with a fake tenancy agreement.

 A garage where the squatters moved back in the day after being removed following failure

by a contractor to secure the site.

 A shop where the agent spotted the squatters moving in and arranged for security guards to

also attend, resulting in a "stand-off" between the squatters and guards within the premises.

Professional Negligence

 A property fund achieving a settlement of a professional negligence action we brought on

their behalf against their former environmental consultants for failing to report on asbestos which was present on a development site, leading to contamination being spread around the site. The settlement was encouraged by an extremely positive interlocutory High Court decision (reported) on the disclosure of expert valuations during which the judge commended our conduct of the litigation.

 A large financial services institution in a multi-million pound professional negligence claim

for failure by solicitors to serve a break clause.

 A financial services institution in a professional negligence claim against solicitors for

failure to serve a break clause in a lease.

 A large corporate on a multi-million pound professional negligence claim against its former

solicitors for incorrect advice on the alienation provisions of a lease leading to the threat of forfeiture by the landlord.

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 An individual in a claim against his former solicitors for failing to properly protect his

interests in an enfranchisement claim.

 Various special servicers in potential professional negligence cases against valuers who had

over valued property against which monies had been lent and subsequently the loan placed into a CMBS structure.

 A landowner in a claim against its solicitors and valuers for failure to obtain vacant

possession of land over which a contract had been given for the extraction of valuable mineral rights. The matter settled at mediation.

 A landlord in a claim against its former solicitors for failing to notice that a strip of land in

the middle of a development site was not owned by the landlord, allowing the site to be built on and the building let so causing the landlord unwittingly to be trespassing and to be obliged to buy the strip of land at a ransom price.

 A dispute between a solicitor claiming unpaid fees and a former client who alleged professional negligence and fraud against the solicitors. The matter was complicated because there were arguments about whether the limitation acts prevented either the claim or the counter claim from being brought and also about the validity of a legal charge on property.

 Dispute concerning alleged professional negligence by a financial advisor.

Personal Style

Beverley’s style has been assessed as calm and authoritative with the ability to gently help the parties reality test their respective positions with the situation calls for it.

Feedback – Clients & Assessors

 “Calm, collected manner.”

 “Calm authority and an assured open manner which facilitates communication.”

 “A sound handling of the process.”

 “We thought she was excellent! our client was very pleased with her.”

 “she did a very good job moving the parties from their original positions.”

 “I think Beverley was very helpful and judged the tone of the mediation well.”

 “I thought Beverley was extremely professional and knowledgeable in the way she dealt with

the issues. It was not the easiest mediation in terms of the positions of the parties with regard to the claim and in terms of the various personalities at play but Beverley treated the parties

Beverley Vara fairly, challenged us when appropriate and kept the mediation moving in order to achieve a settlement.”

Feedback – Directories

 "With her 'thoroughness and tactical awareness', Beverley Vara has played a large part in

this team's success. 'She has shown she has an outstanding brain in what was a very complex and emotional issue', said one source."

- Chambers & Partners Guide to the U.K. Legal Profession 2011

 “Beverley Vara is 'tactically aware' and 'has a good eye for detail'."

- The Legal 500, 2010

Professional Skills

 Called to the bar 2013

 Higher Rights of Audience 2002

 Admitted as solicitor, England and Wales, 1994

 BSc, Mathematics, University of London, 1987