Gary Cowen KC

Gary is an experienced advocate at appellate and first instance levels in all aspects of real property law with particular emphasis on complex issues arising from commercial development, especially adverse possession, restrictive covenants and easements. Gary also specialises in complex mortgage disputes, leasehold enfranchisement and commonhold work. Most recently, he has appeared in two high-profile restrictive covenant cases concerning property at Falmouth Docks and in Berkeley Square.

Gary’s recent High Court work includes cases concerning the surrender of leasehold interests without the consent of a mortgagee, the extent to which a landlord can insist upon a topping up of a rent deposit upon tenant administration to cover rent losses flowing from dilapidations and whether premises demised included the airspace required to construct an extra storey on a block of flats.

• Education
  • University of Bristol LLB (1989)
• Professional
  • Called 1990, Inner Temple
  • Fellow of the Chartered Institute of Arbitrators
  • Member of the Inner Temple Estates Committee
  • Former member, Bar Council Professional Complaints Committee
  • Judge of the First Tier Tribunal (Land Registration)
  • Highly commended at the Enfranchisement and Right to Manage Awards (ERMAs) 2022 - Barrister of the Year 
• Recent Cases
  • Commerz Real Investmentgesellschaft mbH v TFS Stores Limited [2021] EWHC 863 (Ch) - Summary judgment application for rent and service charge defended on grounds associated with COVID-19.
  • Berkeley Square Investments Limited v Berkeley Square Holdings Limited [2019] UKUT 384 (LC) – Whether a user covenant in a long lease of business premises in Berkeley Square should be modified to permit use of the premises as a private members club.
  • Kline v Metropolitan & County Holdings [2018] L & TR 19. On the proper construction of a lease, the demised premises included the airspace above the relevant buildings. 
  • London Trocadero (2015) v Shinners [2018] EWHC 3200 (Ch). Proprietor's claim for losses when respondent lessee went into administration - Preliminary issues. 
  • Pavilion Property Trustees v Urban and Civic Projects [2018] EWHC 1759 (Ch). Whether defendant had lost its right to refer a dispute about profit share to an independent expert. 
  • Pendennis Shipyard (Holdings) v A & P Falmouth [2017] UKUT 430 (LC). Shipyard was granted permission to modify a restrictive covenant binding part of its land so as to build or repair yachts and pleasure craft.  
  • Co-operative Bank v Hayes Freehold Limited and others [2017] EWHC 1820 (Ch). The Court refused to imply into the surrender and release of the guarantor of an underlease of which was expressed as being irrevocable and unconditional, a condition precedent that the release should only take place if the head lease was also surrendered. The Court also rejected claims made on the basis of fraudulent misrepresentation, common mistake, the rule in Pitt v Holt and unjust enrichment. 
  • Hanina v McSpadden and others [2017] County Court at Central London HHJ Parfitt. The Court determined that each of the parking spaces in a development of three properties in London should be 2.1m wide. In addition, the Claimant and Third Party successfully argued that they had acquired rights to use a communal bin store situated on the Defendant’s land by prescription. The Court also addressed issues relating to the construction of a restrictive covenant and dismissed claims for damages for trespass in relation to the use of the forecourt. 
  • In the matter of Black Ant Co Limited [2014] EWHC 1161 (Ch) (mortgages, further advances).
  • Hughmans Solicitors v Central Stream Services Limited (in Liquidation) [2012] EWCA Civ 1720 (Priorities arising from Tomlin Order).
  • Carter v Cole [2009] EWCA Civ 410 (Derogation from grant relating to visibility splay at end of a right of way)
  • Country Estates Construction v Oxfordshire CC [2009] EWHC 642 (Ch) (True construction of restrictive covenant relating to landscaping strip)
  • Sava v SS Global [2008] EWCA Civ 1308 (Adverse possession, whether acts of possession of paper title owner sufficient to negative possession of squatter)
  • Fairacres v Abdul Mohamed [2008] EWCA Civ 1637 (Procedure; whether Court correct to uphold unless order)
  • GE Bowra Group v Thanet District Council [2007] EWHC 2077 (Admin) (Rating; treatment of unoccupied property for non-domestic rating regulations)
  • SS Global v Sava (Ch D (Peter Leaver QC) 28/9/2007) (Adverse possession, appeal from the Adjudicator on fact)
  • Coles v Sam Smiths Old Brewery [2007] EWCA Civ 1461 (Validity of option to purchase; whether option binds successor in title which is wholly-owned subsidiary)
  • Leisure Employment Services v Revenue and Customs Commissioners [2007] EWCA Civ 92 (Minimum wage legislation; whether deductions for gas and electricity bills from wages paid to employees at holiday resorts were lawful)
  • Northstar Land v Brooks [2006] EWCA Civ 756 (Unilateral attempt to extend time for compliance with a notice to complete; estoppel by representation)
  • James Hay Pension Trustees v Cooper Estates Limited [2005]EWHC 36 (CH) (rectification)
  • George Wimpey v Vl Components [2004] EWCH 1374 (rectification)
  • Goldstein v Conley [2001] L&TR 400 (Leasehold Enfranchisement)
  • Ultraworth v General Accident [2000] 2 EGLR 115 (Disrepair)
  • UYB v British Railways Board Times 15th November 2000 (Privilege)
  • Cadogan v Morris [1999] 1 EGLR 59 (Leasehold enfranchisement)
  • King v Dorset County Council [1999] 1 EGLR 245 (Compulsory purchase)
  • Aldavon v Deverill [1999] 2 EGLR 69 (Leasehold Enfranchisement)
  • Viscount Chelsea v Morris [1997] 2 EGLR 100(Leasehold Enfranchisement)
  • Norman v Department of Transport [1996] 1EGLR 90 (Rating)
  • Rodd v Ritchings [1995] 2 EGLR 142 (Council Tax)
• Publications
  • Contributor to Woodfall on Landlord and Tenant CD-ROM
  • Contributing editor of Property section of Bullen & Leake & Jacob Precedents of Pleadings (14th ed.) (2001)
  • Commonhold, Law and Practice 2005 The Law Society.