Andrew Francis

The main areas of Andrew’s expertise in the law of real property are restrictive covenants affecting freehold land, rights of light, rights of way and other easements, adverse possession, boundaries and party walls. His publications (see below) on the first three topics demonstrate his extensive knowledge and experience in these three fields. These are very much “niche” areas of work in which he is pre-eminent as a barrister.

In view of his standing, he may be asked to advise as a “single joint expert” for all parties. He will also act either as the mediator or be instructed as counsel for the parties in ADR. His recent experience, in view of modern practice, is that many parties engage in “informal” ADR, such as without prejudice, lawyers-only meetings. He is frequently advising on this means of settling disputes and encourages his instructing solicitors and clients to engage in constructive ADR. He is acutely conscious of the burden of legal and other fees in any litigation. When acting under Direct Access instructions, he is particularly keen to impress upon his clients the need to approach disputes this way wherever possible.

As will be seen below, his main area of work includes several specific fields of law and some additional arcane ones, such as Reverters of title under the School Sites Acts.

Whilst not an expert on planning and public law matters (and he frequently encourages the use of counsel where that is needed), Andrew is familiar with the general law of Town and Country planning and public law rules to the development of land and buildings and changes of use. He is also experienced in cases where private law rights are potentially subject to being overridden under s. 203 Housing and Planning Act 2016 and similar legislation. This is particularly relevant in rights of light matters.

It goes without saying that even where there is no dispute, his skill as a draftsman of documents in property matters reflects his long experience in this area of law and is consistent with his standing at the Chancery Bar.

He was a member of the Law Commission’s Advisory Board on the reform of the law of easements and covenants which led to the Report and draft Bill published in June 2011. He was also a member of the Law Commission’s Advisory Board, which examined the reform of rights of light and remedies for their breach, which led to the Report and draft Bill published in December 2014.

He has considerable and very recent experience both as an adviser and as an advocate in Claims in Court involving covenants and easements and in Applications in the Upper Tribunal (Lands Chamber) to discharge. or modify restrictive covenants under s. 84(1) Law of Property Act 1925. He also has experience where disputes over restrictive covenants require a single Judge to decide them under different jurisdictions under the “double-hatting” procedure.

His work also includes advice and advocacy in registered land disputes in the First-tier Tribunal, Property Chamber, County Court, High Court, and higher Courts on matters such as covenants, boundaries, easements, adverse possession and other title issues.

As much of his work is either non-contentious or, if contentious, the dispute settles; his expertise is often not in the public domain. Because of his extensive experience in covenant and rights of light cases, he has comprehensive knowledge of City Centres (London, Leeds, Manchester, etc.) and their buildings and other locations, such as residential estates, both as regards the present and their development history. This means that he can recognise locations where he has worked before (often spotting potential conflicts of interest) or where Courts and Tribunals have previously decided cases affecting those locations.

Finally, much of Andrew’s work is non-contentious, such as advising on covenants, easements, and other issues for clients who need pre-contract advice, lenders, and developers who need certainty on the effect of their proposals on third-party rights and insurance indemnity policies.

There are four main specialist areas in his property work:

• Covenants
• Easements
• Boundaries & Land Registration
• Party Walls

Covenants

As stated above, within the field of restrictive covenants affecting freehold land, he has specific expertise in disputes over the enforceability of restrictive covenants and claims to enforce them in Court. His work includes applications to discharge or modify such covenants in the Upper Tribunal (Lands Chamber) under s. 84(1) Law of Property Act 1925. In this, he has long-standing and strong professional links with expert surveyors, valuers and town planning consultants who may be expert witnesses in these disputes.

He advises on the validity and enforceability of trading covenants within Chapters I and II of the Competition Act 1998 and under the principles relating to unlawful restraint of trade.

When instructed in matters relating to restrictive covenants and other property rights and obligations, he works closely with the specialist Indemnity Insurance market, where he is asked to advise and, in contested claims, represent the insurer or the insured. In many other cases, he will advise insurers and brokers on the risk of claims before Indemnity Policies are issued. Finally, his advice is often used (on a non-reliance basis) by clients who are seeking indemnity insurance for covenants and other risks to ensure that the development is marketable.

Easements

The same involvement applies to rights of light matters, where rights of light surveyors are critical to assessing losses. In this area of practice, he has long-standing and strong professional links with expert surveyors, valuers and town planning consultants who may be expert witnesses in these disputes.

As is the case with his work in covenants matters, he works closely with the specialist Indemnity Insurance market, where he is asked to advise and, in contested claims, represent the insurer or the insured. In many other cases, he will advise insurers and brokers on the risk of claims before Indemnity Policies are issued. Finally, his advice is often used (on a non-reliance basis) by clients seeking indemnity insurance for rights of light and other risks to ensure the development is marketable.

Boundaries

Both advisory and contentious work, where boundaries, title ownership, such as adverse possession issues and other matters where specialist knowledge of the land registration system is required, is a significant part of Andrew’s practice.

Party Walls

Andrew’s experience in Party Wall work is well established. As a long-standing member of the Pyramus and Thisbe Society for many years (this being the learned Society that brings together specialists from all professions engaged in Party Wall and related matters), he has extensive knowledge of this technical area of property law.

Generally

In these and all his other cases, his key aim is to ensure good teamwork with the client and all those engaged on the client’s behalf, whatever their role.

Recent Cases

• Fenech v Hambridge Investments Ltd [2025] (The County Court at Central London, HHJ Dight CBE, 18th February 2025) – Judgment in claim to enforce restrictive covenants over Defendant’s development site. The judgment deals with declaratory relief regarding the enforceability of the covenants, the remedy of an injunction for breach, and (obiter) the assessment of damages in lieu of the injunction restraining further work on the development was not properly granted. The judgment contains observations on how covenants can bind the owners of the burdened land, even if they are not expressly noted on the register of title to that land.
• Gow-Wright v Law & Ors [2024] B&PCt. (Ch D) – Declaration granted under s. 84(2) Law of Property Act 1925 declaring restrictive covenants (which would otherwise have impeded the development of the Claimants’ land) unenforceable by virtue of the absence of any evidence of their benefit to defined or ascertainable land. Bath Rugby Ltd v Greenwood & Ors. [2022] (Court of Appeal) applied.
• Kay v Cunningham & Nix [2023] UKUT (LC) – Application to modify user covenant to allow limited use of historic mansion house in rural Derbyshire for bed and breakfast accommodation, with consideration of the effect of “nuisance and annoyance” covenant remaining unmodified as outside the Application.
• Collins v Howell [2022] UKUT 72 (LC) – This was an Application to modify a restrictive covenant under s. 84(1)(aa) Law of Property Act 1925, to enable a manège (sand school for horse riders) to be built on a field in rural Devon. The Application was refused because the manège would interfere with the Objectors’ enjoyment of their view over the field. This was also a case in which the County Court Claim made by the Objectors for an injunction was stayed pending the determination of the s. 84(1) Application was heard at the same time as the hearing of the latter under the “double hatting” procedure. This is an important case not only as an example of the effective use of the latter procedure, but also because it shows that even in rural areas, restrictive covenants have as much potential importance as in built-up areas, suburbs and high-class estates.
• Moskofian v Foster & Ors. [2021] UKUT 214 (LC). The application to modify a restrictive covenant over land at Ealing, West London, under s. 84(1)(aa) Law of Property Act 1925, allowed on terms as to payment of compensation to the Objectors and to regulate one aspect of the implementation of the proposed development.
• Father’s Field Developments Ltd v Namulas Pension Trustees Ltd [2021] UKUT 169 (LC) – The application to modify a restrictive covenant over land at Earls Colne, Essex, under s. 84(1)(aa) Law of Property Act 1925, allowed without the payment of any compensation to the Objector. The Tribunal rejected the Objector’s case that compensation under this jurisdiction could be awarded on the “negotiating damages” or “release fee” basis under s. 84(1)(i) of that Act, and it found that the evidence did not support compensation based on s. 84(1)(ii) thereof. That was so, even where the parties to the application were the original covenanting parties, the covenant was only 20 years old, and it was a qualified one.
• The Incorporated Trustees of the Congregation of the Holy Spirit and the Immaculate Heart of Mary (British Province) v Antill & Anor. [2020] EWHC 3466 (Ch) (High Court, Business & Property Courts of England & Wales.) – Declarations as to the non-enforceability of restrictive covenants affecting freehold land in Bromley imposed before and after the commencement of the Law of Property Act 1925.
• Briant v Baldacchino [2020] (Upper Tribunal (Lands Chamber)) – The application to modify a restrictive covenant over land at Wimborne, Dorset, was refused where the importance of the effect of different planning consents on the application land and their impact on the objector’s property was stressed.