David Schmitz

David Schmitz has a wealth of experience in most areas of Chancery and Commercial practice, and this background makes him particularly adept at dealing with complex problems that require knowledge of several fields. To take a recent example, he has advised a national charity, with a large property portfolio, on how to get in the title to the freehold and leasehold interests of a property, where the titles are unregistered, the trusts pre-date TLATA and the ownership of both interests is vested in an associated company which has been dissolved.

His practice has an emphasis on property litigation and on professional negligence cases involving property, but he also deals with private client work, in particular pensions and charities, and with cases of insolvency, undue influence and cohabitation.

He is a qualified mediator.

He is working, when time permits, on a book on Art and the Law, and has prepared draft chapters on copyright, ownership, interference with ownership, claims by and against states, claims arising out of crimes and other acts of states, and liability for misattribution.

From 2010 to 2014 he was a borough councillor in Haringey, London and served on the planning committee for three years.

Property

David undertakes all manner of property work (including landlord and tenant). He advises and represents developers, as well as persons who have been caught up in cohabitation and undue influence disputes, where his experience goes back to Grant v Edwards [1986] Ch 629 and CIBC v Pitt [1994] AC 200). He has also done many cases of professional negligence relating to property transactions (please see below).

Recent Highlights

• An ongoing arbitration concerning a joint venture agreement that relates to the mismanagement of a commercial estate.
• Advising about the consequences of the purported grant of a right to erect advertisements.
• Negotiating with a landlord, on behalf of a non-residential tenant of property in a block of flats, about the extent of the tenant’s liability to make contributions through its service charge, both generally, and in particular with regard to the removal and replacement of defective cladding.
• A claim against the Land Registry for compensation for removing the registration of the proprietor, upon a purported sale by a trustee in bankruptcy, where the proprietor was not the bankrupt, but whereinstead the bankrupt was a namesake of the proprietor.
• A dispute between a leaseholder and a freeholder as to the ownership of the roof and the space above, where the freeholder wished to add another storey.
• A claim for breach of a contract of sale for part of an estate, where one of the joint sellers was subject to an order under the Proceeds of Crime Act 2002.

Reported Cases

• Brightlingsea Haven Ltd v Morris [2009] 2 P & CR 169: Whether a caravan site owner was precluded by proprietary estoppel from ending periodic tenancies by notice; whether the structures in question were caravans for the purposes of the relevant legislation.
• HSBC Trust Co v Quinn [2007] All ER (D) 125 (Jul): Standard of proof where proprietary estoppel is alleged against deceased person; what is necessary in order to evidence an intention that a document should take effect as a deed.
• Ledger-Beadell v Peach [2007] 2 FLR 210: Claim against one cohabitant by the parents of the other for repayment of monies provided to buy a house for the couple. Claimants alleged monies were advanced as a loan; claim defended on basis that monies were subject to presumption of advancement or alternatively that they were held subject to constructive trust.
• Abidogun v Frolan Health Care Ltd – [2001] All ER (D) 305 (Oct): Established the principle that a forfeiture, caused by a tenant’s denial of the landlord’s title, is capable of relief and that it cannot be acted upon unless a S 146 LPA notice is served.
• CIBC Mortgages plc v Pitt [1994] 1 AC 200: Decided at the same time as Barclay’s Bank v O’Brien [1994] 1 AC 180; it considered, in a case where an entry into a mortgage had been induced by undue influence comprising actual pressure upon the victim, what it was necessary to prove in order to establish such undue influence. It further considered when a mortgagee should be deemed to have been on notice of the undue influence, so as to deprive the mortgagee from being able to enforce the mortgage against the victim.
• Grant v Edwards [1986] Ch 638: Constructive trusts; co-ownership of house by co-habiting couple; significance of registered proprietor’s statements to cohabitant of his reasons for not putting property into joint names.