Kerry Bretherton KC

“an accomplished silk with a wealth of expertise in real estate litigation” Chambers 2022

High value complex property litigation and disputes are at the heart of Kerry’s practice. Her work is centred on property, property development and agriculture.  Kerry has acted in some of the leading property cases on land registration and mortgage possession and frequently advises on high value disputes relating to options and overage, freehold covenants, restrictive covenants and easements including rights of way and rights to light.  She regularly acts in boundary disputes, land registration and mortgage litigation.  Her landlord & tenant work involves all aspects of commercial landlord and tenant as well as residential disputes.   Co-author of The Electronic Communications Code: A Practical Guide she is an expert in the Electronic Communications Code and its impact on developers and land-owners.

Cases of Note

• John Hamilton The Trustee for Civil Recovery v Katung - A case which was listed in the Court of Appeal in December 2022.  The issues raised in this case include whether a deposit to purchase the property constitutes a penalty and whether time is of the essence.  The matters have been remitted for a hearing in the High Court by agreement and is likely to be further considered by the Court of Appeal in 2023.
• In the matter of a rooftop lease of telecommunications masts - Kerry advised a land-owner which urgently required the removal of telecommunications masts from the roof to enable a high value development to proceed. 
• Kaye v Lees [2023] EWHC 152 (KB) - This case concerned attempts to enforce an order for sale which had been frustrated by successive applications by the respondent under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.  Kerry for the applicant in discharging the mental health crisis moratorium and in obtaining an injunction restraining the respondent from obtaining further orders.
• Pile v Pile [2022] EWHC 2036 Ch. - Kerry succeeded in an appeal in a case involving a dispute between brothers who had formerly been in partnership running a farm.  There were disputes about land used for agricultural purposes and other land used for commercial purposes.  The issue in the appeal was whether Kerry’s client was in breach of trust by unilaterally serving a notice to quit.  The High Court accepted Kerry’s arguments that there was no such breach of trust or right to prevent a joint tenant from serving such notice. 
• In the matter of a development in Norwich - Kerry advised the developer in relation to the use of airspace of the land.  Kerry then acted in a dispute about the construction of an option and whether a developer was entitled to draw down land in accordance with the option agreement.  She subsequently advised on matters relating to overage.
• Oshuntola v Collins - This was a dispute about the construction of an option to purchase a property in central London.  Kerry succeeded for the successful Claimant regarding the construction of the option and he was able to exercise the option.
• McDonald v McDonald (Secretary of State for Communities and Local Government intervening)  [2016] UKSC 28; [2017] A.C. 273; [2016] 3 W.L.R. 45 - The claimants bought a property with the assistance of a mortgage and then let it to their daughter in breach of the terms of the mortgage.  The lender appointed receivers who used their powers to serve a notice as required under the Housing Act 1988 and then took possession proceedings.  The Supreme Court considered that the tenant could not rely upon Convention rights to argue that a different order than that mandated by the contractual relationship between the parties was justified.
• Boeing Way Selfstorage Ltd v Wombat Investments 11 Ltd - Kerry acted for the purchaser of commercial property under a contract for sale by auction.  The seller purported to serve a notice varying the completion date and then served notice making time of the essence.  The dispute concerned whether the seller was entitled to rescind the contract and forfeit the substantial deposit.  Kerry succeeded for the claimant in arguments that the notice was invalid.
• MacLeod & Others v Gold Harp Properties Ltd & Others [2014] EWCA Civ 1084; [2015] 1 W.L.R. 1249. - Kerry succeeded in the Court of Appeal in the leading case on land registration.  The Court of Appeal considered the rectification provisions in The Land Registration Act 2002 and held that the power to rectify the register was not limited to restoring an interest but extended to changing what would otherwise be its priority.  The Court of Appeal accepted the argument that the person whose interest had been restored to the register could exercise his rights as the owner of that interest to the exclusion of the rights of the owner of the competing interest from the moment that the order had been made.
• Vance v Collerton [2019] EWHC 2866 (Ch) - Kerry succeeded in a high court appeal relating to the extent of a right of way in a high profile case widely reported in the press.  She established that the Vances had not been entitled to remove a fence and hedge to allow access to their land for parking and had no right to park.
• Poste Hotels v Cousins [2020] EWHC 582 (Ch) - Kerry acted for the Claimant hotel and succeeded in establishing that the Defendant Ms Cousins was not entitled to park to obstruct access to the hotel laundry.  The case also concerned arguments about an easement of parking alleged by Ms Cousins.
• Mexfield v Berrisford [2011] UKSC 52; [2012] A.C. 955 - The Supreme Court held that a tenancy agreement which was uncertain in duration was treated as a tenancy for life at common law and so took effect as a 90 year lease determinable either on the tenant’s death or in accordance with its express termination provisions.

“She is thorough, incredibly astute, generous with her time and of course her knowledge speaks for itself.” Chambers 2022

Kerry is an expert in all aspects of commercial, agricultural and residential landlord and tenant including all 54 Act work, agricultural and farm business tenancies, forfeiture, rent reviews, and breach of covenant.  

Cases of Note

• Re a bar in central London - Kerry acted for a tenant of premises in central London in an application for relief from forfeiture of commercial premises.  She acted in an urgent application for interim relief to enable the Claimant to recommence trading.
• Pile v Pile [2022] EWHC 2036 Ch. - Kerry succeeded in an appeal in a case involving a dispute between brothers who had formerly been in partnership running a farm.  There were disputes about land used for agricultural purposes and other land used for commercial purposes.  The issue in the appeal was whether Kerry’s client was entitled to unilaterally serving a notice to quit to determine the tenancy.  The High Court accepted Kerry’s arguments that it was not possible to prevent a joint tenant from serving such notice.
• In the matter of an appeal against an arbitration award concerning a rent review - Kerry acted for the tenant of a large building in London in a rent review.  Arguments concerned the construction of the lease and the extent to which time was of the essence and whether notices served by the landlord were valid.
• Alexander David v LB Hammersmith & Fulham LBC [2009] EWCA Civ 259; [2010] Ch. 252; [2010] 2 W.L.R. 1126 - This case remains the leading case on the granting of tenancy for minors in which Kerry succeeded in the Court of Appeal in establishing that the landlord had not granted a legal estate to a minor.

“Kerry is incredibly knowledgeable and …is calm and confident when advocating. ..instils confidence. “ The Legal 500 2022

Kerry deals with commercial disputes, primarily those arising out of property transactions.   

Cases of Note

• In the matter of a construction contract - This case concerned a multi-million pound contract for provision of construction materials.  Kerry advised regarding this construction contract and the construction of a termination clause in circumstances where there were substantial delays in delivery.  The issues concerned included the question of whether the contract was frustrated. 
• In the matter of a dispute between a freehold and managing agent - Kerry acts in a dispute between the freeholders of some 32 estates and the former managing agent.  The issues concerned involve questions of whether there was repudiatory breach of contract, construction of the contracts and the duty of care owed to the freeholders.
• Jatinder Singh v (1) Jasminder Tiwana (2) Global Freight Systems Ltd - Kerry acted in a dispute about whether the Petitioner was a member of the Company and/or whether the register should be rectified.  The dispute concerned allegations about whether shares had been signed by her client and the circumstances in which they came to be executed.  Kerry succeeded for the petitioner in establishing that the transfer was invalid.
• A company v A mortgage lender - Kerry acts in this dispute about a commercial bridging loan and a dispute about the sums which were advanced to a company.  There are disputes about the circumstances in which the loan was granted and to which sums were received by the company as well as issues about the extent of the loan agreements.
• In the matter of post-completion payments - Kerry advised in relation to a dispute about post completion payments due under a contract for sale in the event of planning permission being granted.
• In the matter of a rooftop lease of telecommunications masts - Kerry advised a land-owner in dispute with the operator of telecommunications equipment which urgently required the removal of telecommunications masts from the roof to enable a high value development to proceed.
• London & Quadrant Housing Trust Ltd v Prestige Properties [2013] EWCA Civ 130  - Kerry succeeded for the landowner in relation to forfeiture of land which was considered by the occupant to be a ransom strip.  Following those proceedings Kerry succeeded in an application for personal costs orders against the director and shadow director in a case which was appealed to the Court of Appeal.

“Kerry is incredibly knowledgeable and can put complex law into lay terms for clients to understand.” The Legal 500 2022

Kerry has acted in recently reported, high profile cases involving rights of way and is experienced in disputes about highways and footpaths.  She is currently co-writing a book on rights of way.

Cases of Note

• In the matter of a dispute regarding an alleged restricted by-way - Kerry acts for the land-owner in a dispute between a local authority and the land-owner about whether a road is a restricted by-way.  The case concerns arguments about whether the road is a public path within the meaning of the Countryside and Rights of Way Act 2000 and if the road was not converted to a restricted by-way what type of road it was.
• Vance v Collerton [2019] EWHC 2866 (Ch) - Kerry succeeded in a high court appeal relating to the extent of a right of way in a high profile case widely reported in the press.  She established that the Vances had not been entitled to remove a fence and hedge to allow access to their land for parking and had no right to park.
• Poste Hotels v Cousins [2020] EWHC 582 (Ch) - Kerry acted for the Claimant hotel and succeeded in establishing that the Defendant Ms Cousins was not entitled to park to obstruct access to the hotel laundry.  The case also concerned arguments about an easement of parking alleged by Ms Cousins.

“Kerry is incredibly knowledgeable and can put complex law into lay terms for clients to understand.” The Legal 500 2022

Kerry acts in all matters related to village greens and commons and public rights of way.

Cases of Note

• In the matter of a dispute regarding an alleged restricted by-way - Kerry acts for the land-owner in a dispute between a local authority and the land-owner about whether a road is a restricted by-way.  The case concerns arguments about whether the road is a public path within the meaning of the Countryside and Rights of Way Act 2000 and if the road was not converted to a restricted by-way what type of road it was.

“She is realistic in managing the client’s expectations and instils confidence.” Legal 500 2022

Kerry is experienced in all aspects of alternative dispute resolution including arbitration and mediation.

Cases of Note

• In the matter of an appeal against an arbitration award concerning a rent review - Kerry acted for the tenant of a large building in London in a rent review.  Arguments concerned the construction of the lease and the extent to which time was of the essence and whether notices served by the landlord were valid.
• Star Pubs and Bars v McGrath [2020] EWHC 1640 (Ch). - Kerry acted in an appeal against an arbitration award for the successful tenant in a dispute under the Pubs’ Code.
• In the matter of a mediation - Kerry acted for a group of proposed claimants in an action against their former solicitors for negligence arising out of conveyancing transactions.

Kerry acts in matters of professional negligence arising out of property, development and construction cases.

Cases of Note

• A company v A mortgage lender - Kerry acts in this dispute about a commercial bridging loan and a dispute about the sums which were advanced to a company.  There are disputes about the circumstances in which the loan was granted and to which sums were received by the company as well as issues about the extent of the loan agreements.
• In the matter of a mediation about a firm of solicitors negligence - Kerry acted for a group of proposed claimants in an action against their former solicitors for negligence arising out of conveyancing transactions.