And what does 2022 hold?

The pandemic and rent arrears in particular have dominated our newsletters throughout 2021. But what can we expect from the courts for 2022?

One case not covid related and upon which we reported in February 2019 and 2020 was that of Fearn and others v The Board of Trustees of the Tate Gallery. Flat owners in a building neighbouring Tate Modern on London’s riverside sought an injunction requiring the Tate to prevent members of the public from viewing their properties from the Tate’s viewing platform. The judge at first instance held there were measures they, the owners, could take to protect themselves from ‘an inwards intrustion by others’ for instance by installing net curtains or blinds. Appalled, the owners appealed to the Court of Appeal.

The Court of Appeal refused the appeal stating that the law of nuisance did not include ‘overlooking’ and should the law do so in future, it would require legislation. The owners turned to the Supreme Court. The case was heard this month but judgement has been reserved. It is expected in 2022.

Returning to covid related cases, London Trocadero (2015) LLP v Picturehouse Cinemas Ltd [2021] EWHC 3103 related to cinemas in the London Trocadero which were unable to operate during the pandemic lockdown and failed to attract sufficient customers to meet outgoings once they re-opened due to covid restrictions. In consequence, the cinema operators failed to pay rents amounting to £2.9m claiming there was an implied term in their leases that rental was only payable if and when the cinemas could be operated and/or there had been a total lack of consideration during the periods when the cinemas were forced to close. The judge upheld the landlord’s claim for unpaid rent. The case reflects others in which similar arguments have been used to support the tenants’ claims.

This case is due to be heard by the Court of Appeal in February and again, we look forward to reading the judgements in 2022. Watch this space!

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