Alan is a specialist property litigator having over 25 years experience in the field. He trained and qualified in the City of London at Ashurst and took a position at Simpson Curtis becoming national head of property litigation at Pinsent Curtis now Pinsent Masons. Alan is based in Leeds and also works in London.
Areas of Property Market Expertise
Alan advises on all areas of commercial property ownership and dispute management. In particular landlord and tenant markets acting for investors, owners, property managers, occupiers including large scale portfolio management, retail, leisure, financial sectors and development.
He aims to provide more than mere technical or procedural advice, but rather commercial advice and to be a trusted advisor. Litigation may not be the first option but where necessary he will fight court action will be used vigorously for his clients.
Commercial Property Portfolio experience
- Landlord and Tenant 1954 notices, lease renewals, opposed and unopposed, interim rent applications
- Recovery of rent and service charge arrears
- Possession, forfeiture , Section 146 notices, relief from forfeiture applications
- Applications for consent to alienate, declarations that consent to alienate unreasonably withheld
- Dilapidations both interim and terminal
- Termination of tenancies, break clauses (conditional), issues on fixtures and fittings on yielding up
- Tenant insolvency, disclaimers, CVA’s
- Service Charge disputes
Development and general experience
- Advice on conditional contracts for sale/funding agreements
- Rescission/Repudiation of property contracts
- Notices to complete
- Injunctions, Specific performance action, damages in lieu
- Advice on restrictive covenants, interference with easements, Sections 84 and 610 applications
- Site assembly
- Option agreements
- Valuation disputes
- Advice on Fracking with regard to land issues and trespass
- Village green applications
- Judicial reviews
- Removal of restrictions on registered titles
- Adverse possession
- Trespass, boundary disputes, nuisance claims
- Rights of first refusal – Sale of mixed use developments
- Professional negligence
- Expert determinations and arbitrations
- Advice on wayleave agreements, termination and compensation claims and valuations
- Compulsory Purchase Orders and compensation claims
- Electronic Communications Code
- Service Charge disputes, forfeiture
- Enfranchisement – residential
Some specific examples of experience are:
- Acted for a consortium of blue chip office tenants in a dispute with their landlord over a potential £3.8 million service charge demand to pay for a re-cladding of the office block. The legal issues related to questions of the meaning of repairing covenant, landlord’s ability to recover costs under service charge, breach of landlord’s obligations for quiet enjoyment and derogation from grant. Commercial issues were getting a consortium together to share the legal costs, understanding the tenants business needs both long term and short term and also appreciating the impact on business of intrusive works. Case settled on advantageous terms to tenants.
- Successfully prosecuted an expert determination to remove client from an onerous contract.
- Acted for a developer of one of the largest business parks in the north, defeating a claim by the original owners of the land to terminate the options the developer had to buy in this land.
- Acting for receivers of property investment company in disposal of landmark site in West End of London. The tenant wanted to sub-let to well known developer/investor. Purpose of sub-let was to reduce value of headleasehold interest of our client by presence of the proposed sub-tenant. Valuation advice received that the sub-letting would reduce sale price by £6 million. Advice given to refuse consent to underletting and seek declaration from Court that this decision was reasonable. Action taken to clean the title up otherwise the sub-tenant would have achieved its aim of undermining the value of our interest. As a result of issuing proceedings immediately, the client was able to sell the property for more than the original valuation and defeated the tenant’s counter-claim for £ 20 million.
- Acted for a furniture retailer facing serious business interruption due to landlord seeking to use right of entry clause in lease to allegedly repair the premises. This was a plan to get remove our client out for development purposes. Potential loss of trade over £500,000. Prevented landlord obtaining injunctive relief to gain entry and successfully negotiated a deal where our client did move to a brand new store on good terms.
- Acted for Encon Group Limited advising on a back dated rates claim by Nottingham City Council totalling over £150,000. A test case on the service of business rate demands. Encon winning on appeal.
- Acting for developer seeking to put a Sainsburys store in Lutterworh. There was competition from Safeway to get a store on an adjacent site. Safeway sought to frustrate Sainsbury’s planning application by trying to take an assignment of the lease that existed on the Sainsbury’s site. The developer had an option over the freehold land subject to this lease. Advice given to refuse consent to assignment of lease based on collateral advantage to Safeway. The case was reported as BRS v Templeheights Limited.
Other reported cases he has been involved with:
Ultimate Leisure Limited v Stienlet and Tindle Court of Appeal 2007 case on meaning of option agreement and requirements for properly entering into an agreement to surrender a business lease under the Landlord and Tenant Act 1954.
Samuel Smith Old Brewery v Selby District Council Ch 1997 - creation of implied easements
Leading Reputation in Property Litigation
Comment and quotes from Chambers legal directory:-
Alan Herbert knows the field inside out
His very thorough approach to document has won him a number of fans
Alan Herbert is extremely knowledgeable and sharp.
Legal 500 and Chambers legal directories:
Specified as leader in field and expert.
Editorial comments and quotes:
The hot property litigation team in Leeds
A good team who know their stuff
Alan Herbert who has a good grasp of the law
Alan Herbert is a respected name and has a good client base
Strong team comprises top grade lawyers
Alan Herbert is widely admired by competitors who consider him “dependable, affable and sensible bloke”.
Chambers legal directory 2015-2016 “Very thorough and very hard working”
“Clients appreciate that "his comments are always constructive and commercial.”"
The ‘unflappable’ Alan Herbert has particular expertise acting for residential developers such as Persimmon on disputes relating to site acquisition and land valuation, and the interpretation and enforcement of option agreements.
Clients commend him as “very considered and balanced” and as as a lawyer who can provide a “commercial view of things”.