Property

Property law (now sometimes labelled as ‘real estate’) embraces a wide range of work, including ‘real property’ such as contracts for sale, covenants and land registration, trusts over land; and commercial and residential tenancies involving issues as diverse as disrepair, possession claims, succession and assignment. Clients might include large corporate entities, government bodies, local authorities, private landowners of all kinds, and of course individual tenants.

“Studying land law during your law degree or conversion course may have seemed boring and difficult, but don’t assume that the reality of practising it is the same,” Philip Rainey KC advises budding barristers as he reflects on his start in this varied and rewarding practice area. “The truth is that I became a property specialist almost by accident – I didn’t particularly ‘get’ land law when I was at university, but it is much more rewarding to practise it than to study it academically, which perhaps contrasts with a field such as criminal law, the theory of which is fascinating – I even taught criminal law at night school to make ends meet as a junior barrister – but the reality is not the same as many of the cases are open and shut, so there is less intellectual challenge. Land law is a good mix between legal problems and people problems; between paperwork and court work.”

Philip first became interested in the Bar “at about the age of 10” when, on school holidays, he watched “a now-forgotten programme called Crown Court, in lieu of there being no children’s daytime telly in 1975. Although it was fictional, its portrayal of criminal trials was relatively realistic – watching the actors playing the barristers argue cases in front of the judge, I thought ‘that looks like a good job’.”

A broad field

After graduating in law from the University of Leicester, Philip completed his first six at 1 King’s Bench Walk and second six at a now-defunct chambers in Temple Gardens. Now a top land law silk and head of chambers at leading property set Tanfield, his practice focuses on “landlord and tenant disputes, both residential and commercial. Property law is a broad field, so the kinds of matter I deal with include arguments about breaches of lease, for example, around landlord consent clauses where the tenant needs permission to make alterations; freehold cases about land registration where there is disagreement about whether property has been properly registered; odd niche areas such as enfranchisement – whether a tenant can secure freehold from their landlord – and a range of issues that affect people directly such as service charges. If you are renting a flat and the landlord is overcharging you or managing the premises badly, putting it right makes a serious difference to your quality of life.”

Property rights are an emotive political issue and Philip has led cases which seize the headlines. One, Best v The Chief Land Registrar centred on a section of the Legal Aid Sentencing and Punishment of Offenders Act 2012 that made squatting on residential premises a criminal offence. “The dispute was over whether the change in the law prevented squatters gaining ‘squatters’ title’ after 10 years if the premises remains vacant,” he explains. “The Land Registry’s position was that squatters’ title was no longer the law, so acting on behalf of the claimant, we mounted a judicial review which was appealed to the Court of Appeal. The court decided that squatters’ title remains valid, despite the act of squatting being illegal, so we won and the case generated a lot of press coverage.”

He has always acted for a mix of tenants and landlords, but gradually domestic renter cases have given way to more complex litigation and, since making silk, his caseload tends to consist of “high-value disputes, long trials and appeal points.” But he is concerned that many of the more  straightforward cases on which junior barristers build their practices in the early years are no longer making it through the justice system: “Unfortunately I can’t avoid the politics. When I started at the Bar it was possible to access legal aid in a lot of land disputes; whereas now, unless it is a possession claim against someone with a very low income and it is a rented flat – social housing, essentially – it is very difficult to access legal aid.” Sustained cuts over more than a decade have created worrying implications for access to justice and the rule of law, while depriving junior barristers of the cases that would help them to develop their trial experience and earn enough to make the career viable.

The covid-19 crisis

The courts are also underfunded – a situation that has been made more acute by the coronavirus pandemic. “During lockdown, companies and organisations moved onto emergency budgets, so work is generally down, but lower-value property work has been particularly badly hit,” Philip explains. “There are 138,000 possession claims issued in the county courts every year and in order to prevent courts from collapsing, a decision was made to stay (suspend) all property possession cases, regardless of what stage they were at in the process. It has created an enormous backlog, so it will be very difficult when the courts reopen.”

But the top courts continued to operate and Philip has led two remote hearings in the Court of Appeal and a short remote trial during lockdown, as well as hearings by telephone. “Work is still happening, but life is far from normal,” he says. “At Tanfield, we have one colleague working from France and another working very successfully from Australia, despite his hearings taking place in the middle of the night.” The febrile uncertainty of the times has led to one notable setback: “One of our members lost his home internet connection when a local phone tower was burned down during the 5G junk science scare.”

Covid-19 has prompted increased adaptation and innovation but the barristers’ profession will still need to retain a physical presence as restrictions ease. “Clients want to know where they can find you,” he explains. “People need to be able to trust their legal advisers and that is difficult if everything is online.”

Pleasure and privilege

Despite the challenges facing the profession, it is important to emphasise that if you can clear the hurdles, this is a hugely rewarding career. “Breaking down the issues and finding solutions is the real pleasure of the job, but I have done quite a few other fulfilling things as well,” says Philip. “I was a member of the Civil Procedure Rule Committee which makes the rules of court from 2001-2008, an unpaid position which was a great way of giving something back to the profession while also being very interesting. Just before the Supreme Court was formed, I appeared in two of the last cases in the House of Lords which were memorable because they were the end of an era. And in recent years, I have had a couple of stand-out cases in the Supreme Court.” The greatest highlight, though, was understandably being made a KC: “Bluntly, I never thought I would become a silk and I am very privileged to have got there.”

His advice for budding barristers? “To be successful, you need to know about the legal issues of the day, even if they have nothing to do with your field,” he advises. “A good barrister will know their subject, but very good barristers tend to know a lot in areas that are not their subject, too. If you are going to a pupillage interview and there has been a big legal story in the press that morning, make sure you read it – the interviewer may well ask you about it.”