News 15.06.20

In conversation with David Wise of Kerman & Co, on Covid-19 and the impact on property litigation

The current situation the world finds itself in due to Covid-19 is volatile and the virus has certainly brought with it some colossal changes in the way that businesses operate. Last week, we spoke with David Wise of Kerman & Co on how the virus has impacted the law and legislations in the property litigation field.

Please explain a little about Kerman & Co – what sort of legal services do they provide and to who?

Kerman & Co is a full service legal partnership supplying listed and medium sized business principally, but also high net worth individuals. We have a really good spectrum of work and clients. Areas of strength include general and property litigation, our employment practice, and a high-profile sports team. My focus is Property Litigation, and growth areas of work for me include trespasser proceedings, and residential and commercial possession.

How long have you been appointed as Head of Real Estate Litigation and how did you get into this role?

I personally started out as a transactional property lawyer after qualifying as a solicitor, however I wanted to get into advocacy, so I changed to litigation 16 years ago. I used my solid property knowledge to get into property litigation. In 2012 I qualified as a Solicitor Advocate, so what I find is that I can offer my clients a ‘One Stop Shop’; I can run the case, put it together and do the advocacy. I specialise in trespasser proceedings and have previously worked on these extensively with Vigilance.

How has COVID-19 affected Kerman & Co as a company, both directly and indirectly?

There have been lots of challenging situations arise due to Covid-19, but at Kerman & Co, we have been pleasantly surprised. We are fortunate enough to have very efficient IT systems that let us transition very quickly to a working-from-home-based scenario. Our Case Management Systems are online, we use Microsoft teams to continue meetings; we've been conducting court proceedings online and using the court facilities – even been in the Court of Appeal! Colleagues have also conducted injunctions remotely.

What sort of challenges have you come across during the outbreak and how have Kerman & Co adapted to these challenges in response?

In relation to my field, there have been some massive changes in the litigation arena by way of legislation due to Covid-19. The Coronavirus Act 2020 has put a moratorium on the ability to take back residential property, for example if tenants were in default of their tenancy. That represents a real challenge to many of our customers, when so many businesses are struggling. On the commercial side of things, the Coronavirus Act said that if you have a commercial tenant who is not paying the landlord, the landlord wasn’t able to re-enter the property to repossess. Historically, this was the way in which these situations were dealt with, so it has been a massive challenge to us - we have landlord clients who have come to us for advice. In the early days of the Coronavirus outbreak, landlords were able to take bankruptcy proceedings against tenants for not paying, however there is now legislation afoot which stops landlords from using the insolvency procedure to force their tenants to pay their rent, so the only thing that is really left for a landlord at the moment is to use some form of security such as a guarantor or deposit in order to get their money. We’ve also had commercial tenants coming to us in a situation where they can’t pay their rent and are scared to lose the premises, or on the other hand have realised that they maybe don’t need the premises they’ve just signed a 15 year lease on as they are capable of remote working. We’re living in unprecedented times.

How have you changed the court rules when it comes to the removal of trespassers during COVID-19 and what developments have you had in lobbying the High Court and Master of the Rolls?

 The trespasser proceedings are a really big area and Vigilance has worked with us on this in the past. Coronavirus caused changes in legislation, and the court rules were amended. This meant that if landlords had squatters in a property, they could no longer get them out under the Part 55 proceedings. I had a case where some clients had squatters enter a property of theirs. The problem I had as a lawyer was that I couldn’t commence the usual proceedings under this new scenario. What we did on the back of representations to the courts made by the Property Litigation Association and the Property Bar Association, was to make representations to those organisations who forwarded these on to the Master of the Rolls. Subsequently, the rules changed again and reopened the doors to trespasser proceedings. I’d like to think that our efforts had a persuasive value!

As a solicitor, are there any particular security services that you find are in particular demand with your clients?

Trespasser proceedings are a large part of what we do. After we’ve recovered property I often get asked ‘what can we do to prevent this happening again?’. As a solicitor, I can only utilise the law to get orders for possession written, but what is needed to prevent repeat trespasses is security, and after we have recovered possession my advice to the client is to get a reputable, accredited licensed security company such as Vigilance that can either physically guard properties or deploy the services and systems to protect and monitor sites.

 Are there certain services that it is challenging to find reliable security partners to deliver?

Luckily we have worked with preferred firms like Vigilance for many years and have experience of quality service delivery. Reliability is critical, and in my experience, the responsiveness to be able to adapt and cater for security needs from the smallest and most technical jobs, to the biggest and most demanding. For example, administering the lawful return of property to those that have been evicted from a premises; this is a process that can be fraught and challenging, and requires precise management of inventory. Returning items to the rightful owner properly, while the property, fixtures and fittings stay secure. If it's a larger operation, we can work with Vigilance in the background respectively taking back properties and making sure that they’ll be there on eviction to move in straight away. We don't have a problem in engaging such services because they’re tried and trusted.

Why is security so important to Kerman & Co and what role does security play on a daily basis?

Just as in the legal field expertise and competence is critical to achieve good outcomes, so I find it is in security. It's all part and parcel of the package and being able to recommend a highly accredited security supplier that offers sound advice and a response service supports what we do in the best possible way.

What part of your role provides you with the most satisfaction and why?

You may ask that question to some solicitors, who would answer by saying that they get a buzz out of the big transactions; the high-pressure jobs where there's lots of money at stake. But personally, I get the most satisfaction from doing a job speedily, efficiently, and finishing it with delighted clients who are happy with the service that I provided. If my clients are happy and delighted, then I'm happy and delighted too.

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