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Painsmith Solicitors Limited trading as Painsmith Solicitors, Director: Marveen Smith. Registered No. 07617210.
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Emma qualified as a solicitor in 2010 after completing her academic training at Bournemouth University and the University of Law, Guildford.
After undertaking her training contract at a large firm on the south coast she began her career with the same firm before accepting a position with PainSmith Solicitors in November 2012.
Emma specialises in all aspects of property litigation and can assist in resolving most disputes, regularly acting for landlords and land owners in connection with dilapidations disputes, forfeiture and possession claims, land registration disputes, building and boundary disputes, and recovery of arrears and other debts.
Emma is also able to draft up to date tenancy documentation, being fully conversant with all relevant requirements and guidance that applies to this heavily regulated and changing area. She has been praised for her ability to quickly understand her clients’ objectives and for offering commercial, pragmatic advice in a straightforward manner.
David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.
Laura graduated from the University of Portsmouth in 2013 with a degree in Law with Business. This year, Laura also completed the Legal Practice Course.
Prior to joining PainSmith Solicitors, Laura worked for a local council. She has the experience and knowledge to confidently handle her own caseload across a range of property matters and uses her understanding of business to ensure that she produces practical commercial solutions to client’s problems.
Richard came to PainSmith in August 2011 as a Paralegal after graduating with a degree in law from the University of Sheffield. Whilst working for PainSmith he completed the Legal Practice Course at weekends completed a training contract at the firm and has been taken on by the firm as a fully qualified Solicitor. After receiving considerable training provided by PainSmith, Richard joined the legal helpline and has been one of the advisers on the helpline for over four years.
He has over five years of experience in Landlord and Tenant law and his normal work load ranges from case handling of possession matters, deposit disputes, drafting of tenancy agreements, advising on HMO properties and debt and disrepair claims. He is experienced in lengthy and complex litigation and settlement negotiations.
David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.
Marveen Smith was one of the founders of PainSmith Solicitors in 2001 and has been the only Principal of PainSmith Solicitors a niche firm who are specialists in property law since 2006. Marveen has a background in accountancy and tax; forging a second career in law by qualifying as a Solicitor before starting her own practice. As well as working in her legal practice daily Marveen is one of the trainers for ARLA and other organisations presenting legal courses throughout the country; giving presentations at regional meetings for ARLA; and at seminars for landlords. Marveen has made regular appearances on Money Box for Radio 4 and Watchdog where she endeavoured to balance the one sided view of letting agents that can be presented by the media, as well as disseminating information to enable landlords to act in a more professional capacity. Marveen was the first person to establish a legal helpline for landlords and agents; and to offer both standard and bespoke documents designed specifically for the lettings industry. Today PainSmith offers a wide choice of legal documents to satisfy the requirements of both relocation companies, letting agents and landlords.
What is a Flat?
This was the question which HHJ Cowell had to answer last week at Central London County Court in respect of a claim for Collective Enfranchisement made under the Leasehold Reform and Housing Development Act 1993 in the matter of Farndale Court Freehold Limited v. G & O Rents Limited.
The claim concerned a building which can best be described as akin to a student halls of residence. The building consisted of a terrace of 4 blocks. In one block was a management office which belonged to the freeholder and also a room used as a laundry. On either side of the stairwell on each floor was a Unit which typically consisted of 6 en suite bed sitting rooms, a corridor and a communal Kitchen/diner. There were 30 of these units and a Qualifying majority of tenants had given a Notice to Enfranchise under the 1993 Act. The Defendant freeholder had served a Notice alleging that the Units were not flats within the definition of the 1993 Act Section 101(1).
Further the Defendants also alleged that the Units were used as business premises. This was not raised in the Counter Notice.
As a result the Freeholder alleged that the Claimant nominee purchaser was not entitled to enfranchise.
The Claimant bought proceedings for a declaration under Section 22 of the Act that the participating tenants were entitled to enfranchise.
The Judge in deciding if the leases were of a flat took the view that each lease was for a separate set of premises and that each formed part of the building as a whole and had been constructed and adapted for use as a dwelling. The Judge did not feel that the cases relating to “houses” and enfranchisement under the Leasehold Reform Act 1967 assisted him but he did refer to Malekshad v. Howard de Walden Estates and the view of Scott LJ at paragraph 101 that a dwelling was either a house or a flat.
The Judge in this case found that the Units had been constructed for people to live in. Further he determined that whilst most units had 6 rooms, each room could not be said to be a separate dwelling since each was used with the kitchen. He went on to say that if each room could be said to be a flat that was in his view unrealistic and the alternative that there were no flats was equally unrealistic.
He held that each of the Units were a flat within the definition of Section 101(1).
The next point was whether the Defendant was entitled to rely upon the business user despite having failed to mention this in the Counter Notice.
The Judge relied upon a decision of HHJ Cooke at Central London County Court in the case of Bishopsgate Foundation v. Curtis [2004] and found that the argument over business user had not been thought about or hinted at in the counter notice and the Defendant could not rely upon this since there was no reference in the Counter Notice.
He did however go on to consider the business user point. The Judge did state that he could see that a layman looking at the letting arrangements and the units may well conclude that this was a business user but he was satisfied that this was not the correct test. The correct test was to have regard to Section 23 of the Landlord and Tenant Act 1954. The Judge was referred to Graysim Holdings v. P & O [1996] but determined that the current case was on all fours with this authority.
The Judge found that there was not a Business user (save for a short period in respect of two units only as a hotel).
As a result the Claimants were successful in their application although the Defendant may appeal.
It is believed that this is the first case on the point of what is a flat under the 1993 Act. It seems that if you have a dwelling then if it is not a house it will be a flat! Plainly the factual situation is going to be important and we still await the House of Lords decision in Hosebay which may or may not provide further assistance.
Further the Judge did make clear that in his opinion a Freeholder must set all arguments in the Counter Notice although he does not need to go into in detail. This is perhaps surprising but the Judge was clear that in effect the Counter Notice is akin to a pleading.
Perhaps not of huge interest save for those who practice in this field but an interesting decision none the less.
PainSmith were instructed on behalf of the Defendant Company and are happy to advise with regards to all residential long leasehold matters.