CD: How would you describe the extent of disputes currently surfacing in the real estate sector? Could you outline the scale and value of the disputes being seen?

Drummond-Brassington: We are currently seeing the full spectrum of real estate disputes. In particular, development-related disputes are back as more complicated development sites are put together when space is at a premium. The retail sector is also particularly active, with the spread of company voluntary arrangements (CVAs) dominating the headlines recently. Retail is clearly under huge strain at the moment as the power of e-commerce is being increasingly felt.

Simpson: The range of disputes affecting the sector is hugely varied, with many high value contractual and development disputes, as well as lease renewal and portfolio management issues. The longevity of many development agreements and joint venture (JV) arrangements is giving rise to disputes, as parties’ circumstances and market conditions change. These disputes increasingly involve ‘good faith’ arguments. While the market is strong or even benign, many clients have the funds and appetite to renegotiate or litigate options, conditional contracts and promotion agreements. We are also seeing a willingness on the part of developers to bring claims against infrastructure-providers with whom they have contracted. We anticipate significant activity in this emerging area. As well as a regular throughput of ransom and covenant disputes, including mines and minerals and right to light issues, we always see significant claims by landowners and developers against professional advisers – solicitors in respect of title defects and engineers in relation to structural issues, often involving remediation and stability issues.

Oct-Dec 2018 issue

CMS Cameron McKenna Nabarro Olswang LLP

Schulte Roth & Zabel LLP

Walker Morris LLP