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Portrait of Emma Pinkerton

Emma Pinkerton


CMS Cameron McKenna Nabarro Olswang LLP
College Square
2 Anchor Road
United Kingdom
CMS Cameron McKenna Nabarro Olswang LLP
College Square
2 Anchor Road
United Kingdom
Languages English

Emma Pinkerton is a partner in our Real Estate Disputes team. She works closely with our wider Real Estate team where she provides advice based on her in depth experience of all types of property disputes in  Courts and Tribunals as well as alternative dispute resolution.

She acts for a wide range of clients but focuses on the energy sector, advising on development agreements, interpretation of deeds, option and overage provisions, rights of light, nuisance and trespassers. She also has experience of contentious planning matters including Judicial Review and applications to modify restrictive covenants.

Emma is very responsive to clients’ needs and works to build lasting relationships.

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Relevant experience

  • The vacant possession strategy for the development and re-development a major city centre shopping centre. Also dealing with a claim for noise disturbance and advising in relation to an extensive rights to light issue which was successfully resolved by reaching settlement with adjoining landowners.
  • Various issues in preparation of site disposal including assisting and facilitating moving and removing tenants to enable remediation works; reviewing 300 tenancies at will and advising on impact in terms of vacant possession strategy; reviewing the position at various sites to advise on rights to move and remove pipelines and associated equipment.
  • Alongside the planning team on a number of Judicial Review proceedings including challenging the granting of planning permission to ensure the continued viability of a town centre shopping area.
  • Six defendant property fund companies within the Lloyds Banking Group in a High Court claim in relation to a breach of contract and a GBP 4m counterclaim for rectification of the value of various pension funds.
  • Scottish Widows in a High Court claim for rectification of a lease and under-lease. This decision was over-turned on Appeal and is now cited as one of the leading authorities on interpretation of contracts.
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  • 1998 - Anthropology and Law BA, London School of Economics
  • 2001 - LPC, College of Law, London
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‘We were on a break’… UK High Court rules that a lease break no­tice served...
On the spe­cif­ic facts of this case the High Court has held that a break no­tice served four years in ad­vance of the break date was val­id. The de­fend­ant ten­ant at­tacked the valid­ity of its pre­de­cessor’s...
Rights of Ac­cess and Pos­ses­sion where Ten­ant In­solv­ent
Ac­cess to premises in ten­ant in­solv­ency A land­lord’s right to ac­cess the ten­ant’s premises is gov­erned by the terms of the lease.  Any no­tice re­quire­ments must be ad­hered to, ir­re­spect­ive of any in­solv­ency pro­cess the ten­ant is sub­ject to­Be­fore seek­ing ac­cess land­lords should con­sider wheth­er they want to im­me­di­ately de­term­ine the lease to avoid los­ing any right to for­feit  Land­lords of­ten re­quire ac­cess to premises of an in­solv­ent ten­ant for health and safety and in­sur­ance pur­poses. They may also want to mar­ket the premises (without im­me­di­ately tak­ing back pos­ses­sion) to lim­it any lossNotice re­quir­ing ac­cess for health and safety and in­sur­ance pur­poses can usu­ally be made based on the land­lord’s con­trac­tu­al rights Land­lords can use keys it is hold­ing or re­quest these to ac­cess the premises mak­ing it clear in either case that it is or will hold the keys to the ten­ant’s or­der and is treat­ing the lease as con­tinu­ingThe land­lord can in­form the ten­ant’s in­solv­ency prac­ti­tion­er (IP) that it will change the locks and then hold the new keys to the ten­ant’s or­der if the IP does not re­spondKeys must be held and used strictly for the bases set out in the lease or un­der any ex­press agree­ment reached with the IP Pos­ses­sion of premises Dif­fer­ent types of ten­ant in­solv­ency will com­monly trig­ger a right to for­feit the lease sub­ject to the pre­cise terms of the leaseTo pre­serve a right to for­feit while the land­lord con­siders its op­tions, a rent stop should be im­posed im­me­di­ately and no ac­tion taken to treat the lease as con­tinu­ing, dis­cus­sions with the ten­ant or the IP about the lea­seIf the land­lord does want to pur­sue for­feit­ure, no­tice un­der sec­tion 146 Law of Prop­erty Act 1925 will need to be served un­less the land­lord also has an ex­ist­ing right to for­feit for non-pay­ment of rent Pos­ses­sion - ad­min­is­tra­tion In ad­min­is­tra­tion there is a morator­i­um on for­feit­ure without (a) the ad­min­is­trat­ors’ con­sent; or (b) leave of the cour­tIf ad­min­is­trat­ors do not re­quire the prop­erty for the pur­poses of the ad­min­is­tra­tion, it is very likely that they will grant con­sen­tIf ad­min­is­trat­ors re­fuse con­sent to for­feit, the land­lord can ap­ply to court for per­mis­sion­Ad­min­is­trat­ors may be pre­pared to ac­cept a sur­render of the lease on agreed terms; this should be dis­cussed on a without pre­ju­dice basis if for­feit­ure is also be­ing pur­suedA sur­render can be ef­fected by (a) form­al deed; or (b) op­er­a­tion of lawA sur­render by op­er­a­tion of law can be straight­for­ward, quick and re­l­at­ively cheap, sub­ject to deal­ing with any out­stand­ing charges af­fect­ing the prop­erty which the sur­render could be oth­er­wise sub­ject to Pos­ses­sion - li­quid­a­tion In a com­puls­ory li­quid­a­tion, for­feit­ure by pro­ceed­ings can only be pur­sued with the li­quid­at­or’s con­sent or per­mis­sion of the court­For­feit­ure can be car­ried out by peace­able re-entry, but may be sub­ject to chal­lengeIn a vol­un­tary li­quid­a­tion, the land­lord can for­feit by pro­ceed­ings or peace­able re-entry un­less a cred­it­or/li­quid­at­or/con­trib­ut­ory has ap­plied to court for an or­der to re­strainA li­quid­at­or can dis­claim oner­ous con­tracts in­clud­ing a lease. Dis­claim­er will end the ten­ant com­pany’s rights and li­ab­il­it­ies un­der the lease and, if there is no oth­er party li­able, will de­term­ine the leaseThe land­lord will have a claim for its loss res­ult­ing from dis­claim­er in the li­quid­a­tion­Land­lords can serve no­tice re­quir­ing a li­quid­at­or to elect with­in 28 days wheth­er or not to dis­claim the lease, or oth­er­wise lose the right to do so­The rights and li­ab­il­it­ies of any third parties, such as guar­ant­ors, former ten­ants and sub-ten­ants are un­af­fected by a dis­claim­er­Provid­ing a sub-ten­ant com­plies with the li­ab­il­it­ies un­der the in­solv­ent ten­ant’s head lease, the land­lord can­not take pos­ses­sion, but has no dir­ect con­trac­tu­al re­la­tion­ship with the sub-ten­antThe land­lord, sub-ten­ants and third parties with a rel­ev­ant in­terest in the prop­erty can ap­ply to court for a vest­ing or­der­Agree­ing a sur­render of the lease is also an op­tion if the ten­ant is in li­quid­a­tion Pos­ses­sion - com­pany vol­un­tary ar­range­ment (“CVA”) and re­struc­tur­ing plans (“Plan”) For­feit­ure of a lease can­not be pro­hib­ited by the terms of a CVA or a Plan  However, the terms of the CVA/Plan vary­ing the con­trac­tu­al terms of the lease may mean that there are no breaches of the ten­ant’s cov­en­ants as var­ied­In con­sid­er­a­tion of the com­prom­ises im­posed on land­lords, the CVA/Plan will grant im­paired land­lords an op­tion to re­cov­er pos­ses­sion of the premises by serving a no­tice to va­cat­eThe terms of the lease as var­ied by the CVA/Plan will there­fore gov­ern how (if at all) the lease may be ter­min­ated early 
Rates : How to avoid ex­pos­ure when a ten­ant enters ad­min­is­tra­tion
Over re­cent years, un­for­tu­nately, strug­gling ten­ants en­ter­ing ad­min­is­tra­tion is com­mon­place and with chal­len­ging eco­nom­ic times ahead, this is likely to con­tin­ue to be the case.A com­mon scen­ario when a ten­ant enters ad­min­is­tra­tion is for ad­min­is­trat­ors to at­tempt to sur­render the lease. Why? Ad­min­is­trat­ors, un­like li­quid­at­ors, don’t have the power to dis­claim a lease so un­less there is a break, the only route to bring li­ab­il­it­ies to an end is via sur­render. What does a sur­render mean for land­lords and rates li­ab­il­ity? Not only does a sur­render res­ult in the end of ten­ant’s li­ab­il­ity to the land­lord for rent, ser­vice charge etc but the ten­ant’s li­ab­il­ity to third parties such as util­ity pro­viders and rat­ing au­thor­it­ies.We all know that rates can form a sig­ni­fic­ant chunk of a ten­ant’s out­go­ings and, if a lease is sur­rendered, that li­ab­il­ity will fall to the land­lord un­less an in­com­ing ten­ant or oc­cu­pi­er can be found.If com­mer­cial prop­erty is un­oc­cu­pied then the land­lord will be re­spons­ible for pay­ing rates (sub­ject to any empty rates re­lief).Land­lords and their agents should ex­er­cise cau­tion to avoid a sur­render in­ad­vert­ently tak­ing place (it can be im­plied and does­n't need to be by way of a form­al deed).An im­plied sur­render can take place by cir­cum­stance. For ex­ample;An ad­min­is­trat­or is ap­poin­ted and simply sends keys to a land­lord or agent by post. The ac­cept­ance of those keys could amount to a sur­render of the lease.The ten­ant is in ad­min­is­tra­tion but the premises are empty, the land­lord wants to in­spect and re­market so de­cides to do so – without the con­sent of the ad­min­is­trat­or, this could res­ult in a sur­render be­ing im­plied.The good news is that an im­plied sur­render can be re­l­at­ively eas­ily avoided by tak­ing pro­tect­ive steps or us­ing pro­tect­ive word­ing when cor­res­pond­ing with the ten­ant or its ad­min­is­trat­ors. For more in­form­a­tion around ac­cess, read our see our re­cent art­icle on ac­cess­ing the premises in these situ­ations.  Rates mit­ig­a­tion schemes - What are they? There a num­ber of rates mit­ig­a­tion schemes used by land­lords.The most com­mon is for Land­lords to lease prop­erty to a third party typ­ic­ally for low or nom­in­al rent.That third party will then be in rate­able oc­cu­pa­tion of the prop­erty in ques­tion and the li­ab­il­ity will no longer fall to the land­lord. Rates Mit­ig­a­tion – A cau­tion­ary snail? There have been a num­ber of re­cent de­cisions in­volving rates mit­ig­a­tion schemes and which per­haps demon­strate a more ro­bust ap­proach be­ing taken by both rat­ing au­thor­it­ies and courts to the schemes.One of those cases is Isle In­vest­ments Lim­ited v. Leeds City Coun­cil, a 2021 de­cision in­volving a snail farm busi­ness in a Leeds of­fice build­ing. The court found in fa­vour of the rat­ing au­thor­ity that the lease was no more than a sham, that there was no in­ten­tion to com­ply with the lease ar­range­ments by either the land­lord or the ten­ant and that the land­lord was li­able for the rates. Factors that led to that de­cision in­cluded:the dir­ect­or of the land­lord com­pany ad­mit­ting that the ten­ant was not ex­pec­ted to oc­cupy;the of­fices were simply not suit­able for snail farm­ing and;no snail farm­ing (or any oc­cu­pa­tion) took place!It is im­port­ant to note that, as re­cog­nised by the court, en­ter­ing in­to a lease to avoid rates won’t auto­mat­ic­ally mean the ar­range­ment is a sham and li­ab­il­ity falls to the land­lord but if the true nature of the ar­range­ment doesn’t match with the lease then it could be set aside for rates li­ab­il­ity pur­poses.The facts in the Isle case are per­haps un­usu­al and re­l­at­ively rare but non­ethe­less it per­haps in­dic­ates a great­er read­i­ness on the part of rat­ing au­thor­it­ies to clamp down on sham ar­range­ments and is a use­ful re­mind­er to land­lords im­ple­ment­ing mit­ig­a­tion schemes that they should care­fully con­sider the ar­range­ments they are put­ting in place.
Elec­tri­city util­it­ies: avoid­ing dis­con­nec­tion when a ten­ant enters ad­min­is­tra­tion
Scen­ario:  Your ten­ant is not per­form­ing well fin­an­cially. It leases a shop premises from you and the store does not gen­er­ate much turnover com­pared to its oth­er stores across the coun­try. The ten­ant com­pany ap­points ad­min­is­trat­ors to at­tempt to save its busi­ness as a go­ing con­cern.The ad­min­is­trat­ors will of­ten ter­min­ate the ten­ant’s con­tract with the elec­tri­city pro­vider to pre­vent on­go­ing charges ac­cru­ing against the in­solv­ent es­tate. What hap­pens if nobody pays the util­it­ies com­pany? If the util­it­ies com­pany is not paid, or the ad­min­is­trat­or va­cates the premises, they are likely to:decim­al­At­tempt to re­cov­er out­stand­ing sums from the prop­erty own­er (i.e. the land­lord) ar­guing that a deemed stat­utory con­tract has aris­en­Take steps to dis­con­nect the sup­ply if pay­ment is not made. This is un­wel­come as re-con­nec­tion can take time and is ex­pens­ive.  How does a land­lord avoid dis­con­nec­tion in this scen­ario?  A deemed stat­utory con­tract with the elec­tri­city sup­pli­er may arise with the land­lord, if the premises are no longer oc­cu­pied by the ten­ant but the premises are still re­ceiv­ing a sup­ply. The land­lord may chal­lenge this, but the util­ity com­pany may then dis­con­nect the sup­ply as lever­age.  To pre­vent dis­con­nec­tion the land­lord may have little choice but to as­sume re­spons­ib­il­ity for the sup­ply go­ing for­ward from a point in time, whilst not ac­cept­ing re­spons­ib­il­ity for ar­rears. The land­lord should enter in­to a sup­ply con­tract on the best tar­iff avail­able to avoid be­ing bound by a deemed con­tract on oner­ous terms.It is pos­sible to as­sume re­spons­ib­il­ity for the util­ity charges whilst still leav­ing the lease in place as rates mit­ig­a­tion. Care should be taken to en­sure that there is no un­ne­ces­sary equip­ment us­ing the elec­tri­city at the premises from the point re­spons­ib­il­ity has been ac­cep­ted - see our re­cent art­icle on ac­cess­ing the premises in these situ­ations.
Deal­ing with an In­solv­ent Ten­ant’s Goods left in Va­cant Premises
The situ­ation When a land­lord re­cov­ers pos­ses­sion of premises from an in­solv­ent ten­ant, there are of­ten goods left in the premises.The land­lord will be­come in­vol­un­tary bailee of the goods, which car­ries cer­tain lim­ited du­ties, in­clud­ing not to dam­age or des­troy the goods, but en­titles it to take reas­on­able ac­tion to dis­pose of the goods.De­term­in­ing what ac­tion is reas­on­able may be dif­fi­cult and poses a risk of li­ab­il­ity in the tort of con­ver­sion.De­pend­ing on the nature of the ten­ant’s busi­ness and the goods left, these may range from low-value items (e.g. sta­tion­ery), to high value items (e.g. plant/ma­chinery) which may be third party owned. This will be rel­ev­ant to what ac­tion the land­lord can reas­on­ably take.Deal­ing with dis­pos­al of the goods can of­ten be lo­gist­ic­ally dif­fi­cult, so en­ga­ging bailiffs/agents to man­age the pro­cess can be be­ne­fi­cial. Solu­tions – Torts Act no­tices The land­lord may be able to main­tain that the goods have been aban­doned, but a com­mon pro­tect­ive step for land­lords to take to as­sist in es­tab­lish­ing that is to serve no­tice un­der the Torts (In­ter­fer­ence with Goods) Act 1977 re­quir­ing the ten­ant or any third-party own­ers to col­lect the goods and no­ti­fy­ing them of an in­ten­tion to oth­er­wise dis­pose of the goods.A sched­ule of goods will be at­tached to the Torts Act No­tice served on the ten­ant and any­one else who it is known may have an in­terest in the goods.If the goods are not col­lec­ted with­in a reas­on­able time of giv­ing no­tice, the land­lord may sell or dis­pose of the goods as ap­pro­pri­ate, de­duct any ex­penses of sale and stor­age, and hold the bal­ance on trust for the ten­ant or third party own­er.Spe­cial­ist goods (e.g. mo­tor vehicles) may also be sub­ject to ad­di­tion­al stat­utory re­stric­tions.In some cases, par­tic­u­larly where there are high value items, seek­ing the court’s au­thor­ity to sell may of­fer great­er com­fort to a land­lord. Solu­tions – con­trac­tu­al pro­vi­sions The lease may con­tain an ob­lig­a­tion for the ten­ant to re­move all goods from the premises on lease ex­piry, and may con­tain a deemed aban­don­ment pro­vi­sion in re­la­tion to goods left in the premises, coupled with a land­lord’s right of sale. Leg­al ad­vice should be sought be­fore re­ly­ing on one of these clauses.A Torts Act no­tice could be served in par­al­lel with re­li­ance on a con­trac­tu­al pro­vi­sion for ad­di­tion­al pro­tec­tion. Ad­di­tion­al is­sues If the land­lord in­tends to re­let the premises im­me­di­ately after it has re­gained pos­ses­sion, it will need to move and store the goods se­curely off the premises.If the new ten­ant wants the goods, the land­lord should still con­sider serving a Torts Act No­tice and should agree con­trac­tu­al terms with the new ten­ant which pro­tect its po­s­i­tion if the goods are claimed by the in­solv­ent ten­ant or a third party.If the ten­ant com­pany is sub­sequently dis­solved, any land or chat­tels it owned pri­or to dis­sol­u­tion that have not been dis­posed of will be­come ves­ted in the Crown as “bona va­can­tia”.The Crown can sell or dis­claim any as­sets as it sees fit and al­most al­ways chooses to dis­claim own­er­ship.Any Torts Act No­tice (or oth­er no­tices) should be served on the in­solv­ent com­pany, any in­solv­ency prac­ti­tion­er ap­poin­ted and, fol­low­ing a dis­sol­u­tion, the Crown.
Pro­tec­tion from protests
Protest on the streets, protest on­line, even lit­ig­a­tion used as a vehicle for protest.Protest­ors tar­get­ing a busi­ness may be stand­ing in a crowd, hold­ing a plac­ard or shout­ing slo­gans. But they may also be be­hind a com­puter screen or pur­su­ing a claim against the busi­ness through the courts. They may even be work­ing in­side the busi­ness, pre­par­ing to com­prom­ise its sys­tems or leak con­fid­en­tial in­form­a­tion.Wheth­er they are act­iv­ists, em­ploy­ees or cus­tom­ers, all these protest­ors may present a sub­stan­tial chal­lenge and a real threat to busi­nesses, in areas in­clud­ing its se­cur­ity, repu­ta­tion and bot­tom line. 
HS2 wins route-length High Court in­junc­tion against protest­ors
On 20 Septem­ber 2022, Knowles J gran­ted an in­ter­im in­junc­tion to High Speed Two Lim­ited (“HS2”) and the Sec­ret­ary of State for Trans­port (“SoST”) against four cat­egor­ies of ‘per­sons un­known’...
Risk Es­sen­tials: Sea­son of Protest
Protests are every­where. There are protests on the streets and out­side busi­ness premises. There are protests on­line. Your work­force is protest­ing. Even lit­ig­a­tion is be­ing used as a means of protest...
New Po­lice Powers to deal with Tres­pass­ers & Protest­ors
From 28 June 2022, the po­lice in Eng­land and Wales have new powers to deal with tres­pass­ers and protest­ors un­der the Po­lice, Crime, Sen­ten­cing and Courts Act 2022 (“the Act”). Protest­ors The Act cov­ers...
In­solv­ency Ser­vice re­port finds that land­lords are equit­ably treated un­der...
Sum­mary The In­solv­ency Ser­vice has re­leased its re­port on CVAs (the “Re­port”), which was com­mis­sioned in re­sponse to the sig­ni­fic­ant con­cerns raised by the com­mer­cial prop­erty sec­tor in re­cent years...
Mon­sol­ar IQ Ltd v Woden Park Ltd: In­ter­pret­a­tion of rent re­view pro­vi­sions...
In our pre­vi­ous Law-Now we dis­cussed the de­cision in June 2020 of Mr Justice Fan­court in the un­usu­al case of Mon­sol­ar IQ Ltd v Woden Park Ltd on the in­ter­pret­a­tion of an in­dex linked rent re­view clause...
UK Real Es­tate Mar­ket Post-Lock­down
2020 was an un­pre­ced­en­ted year. Brexit and Cov­id-19 rocked the real es­tate mar­ket, now how­ever, with the lock­down in the fi­nal stage pri­or to lift­ing we are see­ing activ­ity con­tin­ue to in­crease across...