Kevin Pain

Kevin Pain

“A walking encyclopaedia.”

Legal 500, 2017

"His technical knowledge of property law is outstanding, and makes him a go to Counsel."

Legal 500, 2015

"Exceptional eye for detail."

Legal 500

Practice Overview

Kevin’s practice covers all aspects of property related advice and litigation – with particular emphasis on commercial and residential landlord and tenant matters – as well as will disputes and contentious probate. He regularly appears in civil courts and the First-tier Tribunal (Property Chamber).

Kevin’s main areas of work include:

  • Residential landlord and tenant
  • Commercial landlord and tenant
  • Real property disputes
  • Trusts, wills and probate

Kevin also has a particular interest in service charges, leasehold management disputes, and enfranchisement claims.

Kevin was an Exhibitioner at University College, Oxford where he read Jurisprudence graduating in 1994 with an Upper Second class degree. He completed the BVC at the Inns of Court School of Law and was called to the Bar in 1995, having received a Lord Justice Holker Scholarship from Gray’s Inn.

ADR

Kevin has represented clients in a range of mediations, arbitrations and adjudications relating to his areas of practice.

Kevin is also able to provide early neutral evaluations.

Recent relevant experience includes:

  • Acting for clients in relation to a long-running boundary dispute with neighbouring land owners
  • Acting for the beneficiaries of the deceased’s intestacy in relation to a claim brought under the Inheritance (Provision for Family and Dependents) Act 1975 by the deceased’s same sex partner
  • Acting for a landlord in an arbitration relating to a terminal dilapidations claim against a former tenant. Issues included the proper application of section 18 of the Landlord and Tenant Act 1927

Property

Kevin has extensive experience of representing clients in a wide-range of property related disputes and professional negligence claims relating to property transactions.

He has particular experience in residential and commercial landlord and tenant matters, and has established a strong practice in matters falling within the jurisdiction of the First-tier Tribunal (Property Chamber), including enfranchisement and management claims.

He also acts in relation to real property disputes, including boundary disputes, easements and covenants.

Real Property

Recent relevant experience includes:

  • Advising client in respect of a proposed nuisance claim against a neighbouring farmer arising out of alleged encroachment by Japanese Knotweed onto the client’s land
  • Advising clients in relation to a claim against the Crown for an injunction and/or damages for interference with easements and breach of positive covenants in respect of the treatment of sewerage from clients’ properties
  • Advising the registered proprietor of land in respect of claim for rectification of the Register by removing reference to an option agreement on the basis that the (now lost) option agreement did not extend to that land
  • Advising a developer as to whether an express easement permitted the installation of 3 new pipes in place of an existing pipe across the servient land
  • Acting for the respondent to an application for rectification of the Register made on basis that it had been a mistake to register the respondent as proprietor by reason of adverse possession
  • Acting for a landowner in a claim for possession against trespassers defended on the basis of adverse possession. The defendant claimed to have been in adverse possession since 1991. Issues included the application of the Limitation Act 1980 and the Land Registration Act 2002, and whether a lease granted to the defendant’s father (extending to 2000) had been surrendered
  • Advising a client in relation to an overage agreement, including the transmission of benefit and valuation issues
  • Advising a developer in respect of sufficiency of easements over neighbouring land. Issues of excessive user in light of McAdams Homes Limited v Robinson (2004)
  • Advising a landowner in respect of an obstruction of a right of way by a neighbouring farmer. Issues included duties of repair and actionable interference

Mortgages

Recent relevant experience includes:

  • Advising a mortgagee in relation to the proposed sale of one parcel of the defaulting mortgagor’s land access to which was gained over another parcel of mortgagor’s land over which the mortgagee held only a third charge. Whether mortgagee able to rely on existing access by mortgagor as giving rise to a right of way over retained land for the benefit of land to be sold in the event of a sale
  • Advising a client in respect of a loan made to a charity and mortgage over charitable land securing the same, and as to the proposed appointment of a receiver upon breaches of covenant by the mortgagor
  • Acting for the mortgagee in its possession claim against the mortgagor in respect of premises used as a hostel, and as to defendant company’s claims to have taken possession through a chain of assignments
  • Acting for the beneficiary in the Chancery Division in respect of a claim by a creditor for repayment of monies owed by the deceased under terms of a shared appreciation mortgage. The client was substituted for executor by the court in order to defend claim with protective costs order

Trusts of Land/Co-ownership

Recent relevant experience includes:

  • Acting for a client in opposition to a claim for repayment of a loan or declaration of a beneficial interest in her property. Included issues relating to the setting aside of a default judgment, service out of the jurisdiction pursuant to Section IV of Part 6 of the CPR, and extensions of time for service
  • Acting for a client on an application for an order for sale and in opposition to the former partner’s claim for an order setting aside an unfavourable deed of trust signed by him following disclosure of infidelity. Undue influence claim rejected at trial
  • Acting for client in relation to former partner’s claim for declarations of trust in respect of family home and second home abroad purchased in unequal shares
  • Acting for a client at first instance and on appeal in respect of a declaration of beneficial interests and equitable accounting in relation to a property purchased by joint owners for investment purposes but later used by one joint owner for his own family. Successfully argued at first instance that no evidence that parties’ original intention to own in equal shares had altered. Successful appeal in respect of equitable accounting after original purpose ended

Commercial Property

Recent relevant experience includes:

  • Acting for a landlord in a possession claim against a tenant holding under a continuation lease pursuant to Part II of the Landlord and Tenant Act 1954 on the basis of cessation of business use
  • Advising a landlord in relation to commercial tenant’s claim for damages for unlawful eviction following forfeiture by peaceable re-entry and related dilapidations claim against tenant, and professional negligence claim against the landlord’s former solicitors
  • Acting for a client in relation to a possession claim of business premises. The client had continued to run a business from premises following her spouse and former tenant’s insolvency. Whether periodic tenancy or tenancy at will
  • Advising client who entered into possession of commercial premises having agreed heads of terms for a 12 year lease, but took 12 month tenancy before longer lease could be finalised. Whether heads of terms gave rise to an agreement for lease or whether tenant was a periodic tenant or a tenant at will
  • Acting for a business tenant on his appeal to the First-tier Tribunal (Property Chamber) against an improvement notice served on him by the local authority pursuant to Part I of the Housing Act 2004. The tenant sought an order that the freeholder carry out works, or contribute to the costs of the same. Issues as to nature of tenant’s repairing obligation and condition of property at the commencement of the tenancy
  • Advising head lessee of business premises subject to a proviso for re-entry in event of insolvency on the effect of forfeiture or disclaimer of head lease on sub-interests

Service Charges, Management and Enfranchisement etc.

Recent relevant experience includes:

  • Acting for a landlord in respect of tenants’ applications for determination of premiums payable for lease extensions. Issues included circumstances in which it is appropriate to depart from the rate set out in Sportelli and real growth rates outside PCL. Successfully argued that an adjustment should only be made where there was a real risk that the 2% growth rate identified in Sportelli would not be achieved, not whether the real growth rate less favourable than in PCL
  • Advising a client in relation to validity of counter-notice in a collective enfranchisement claim – where notice referred to the payment of such price as may be agreed between the parties – and whether the landlord able to argue that initial notice was not valid
  • Acting for a landlord in a collective enfranchisement claim where no counter-notice served. The client had opposed the tenants’ application pursuant to section 25 of the LRHUD Act 1993 on the basis that the initial notice had not been served and the property had commercial floor space exceeding 25%
  • Advising a client in relation to the collective enfranchisement of converted block where one of 2 landlords missing. Reliance on deemed service provisions within LRHUD Act 1993
  • Acting for a RTM company in relation to its application for a declaration that it had acquired the right to manage a residential block pursuant to Chapter 1 of Part II of the Commonhold and Leasehold Reform Act 2002. Issues relating to the validity of the Register of Members, Notices of Invitation to Participate, and Claim Notices
  • Advising a leaseholder under a long residential lease of a flat in the annexe of a converted country house in relation to rights and obligations arising under the lease and the merits of a claim for arrears of service charges made by the tenant owned freehold company, including the tenant’s right to gain access to her flat through the main house, and her obligation to contribute to the costs of maintaining the same
  • Acting for a landlord client in a service charge application to the First-tier Tribunal (Property Chamber). Successfully argued that the Tribunal had no jurisdiction as tenant had previously acknowledged his liability to pay in writing
  • Acting for long leaseholders against a freeholder in a restitutionary claim in the county court in respect of overpayment of service charges (including advance charges) following the decision of the First-tier Tribunal (Property Chamber) that charges not payable
  • Acting for a respondent tenant in opposition to the landlord’s application for variation of his lease pursuant to section 35 of the Landlord and Tenant Act 1987. The landlord relied on the fact that the leases to the building provided for service charge contributions that were less than 100% of the landlord’s costs. The tenant argued that the deficiency arose only as a result of an earlier variation agreed by the landlord, and sought compensation in the event that a variation was made
  • Acting for a lessee in respect of lessee controlled freehold company’s application for a determination of breach covenant pursuant to section 168 of the Commonhold and Leasehold Reform Act 2002, including a challenge to the right to bring the claim
  • Acting for an applicant in claim for declaration that she was entitled to buy her property pursuant to the right to buy provisions of the Housing Act 1985 on the basis that the property was not ‘particularly suitable for the elderly’

Rights of First Refusal

Recent relevant experience includes:

  • Acting for tenants in relation to the enforcement of the freeholder’s contractual obligation to transfer the freehold of a purpose built block of flats upon sale of all flats within the building, and whether LTA 1987 applied
  • Advising a leaseholder in respect of the landlord’s transfer of the freehold in absence of notices served pursuant to section 5 of the Landlord and Tenant Act 1987 (right of first refusal) and the efficacy of the landlord’s avoidance strategy

Other

  • Acting for a Rent Act tenant defending a possession claim brought by landlord on grounds of disrepair. Defended on the basis that the tenant’s express repairing obligation was void as a result of section 12(1) of the Landlord and Tenant Act 1985 and that the landlord was subject to a repairing obligation under section 11 of that Act
  • Acting for a client on appeal against an order for sale with vacant possession of the defendant estate’s property following its interim application made during the course of the client’s claim under the Inheritance (Provision for Family and Dependents) Act 1975

Trusts, Tax, Probate and Estates

Recent relevant experience includes:

  • Acting for the beneficiary of a protected party’s last will in opposition to deputy’s application to the Court of Protection for a statutory will cutting out client. Issues at interim hearing included whether it was appropriate to make a ‘holding will’ excluding the client given the risk that the protected party would die before a final hearing could take place
  • Advised in respect of validity of will by reference to Wills Act 1837 and provision of Wills Act 1963 relating to execution in accordance with internal law of another territory