Land Disputes
Easements and Rights of Light
An easement is the right for one party to use another party’s lands for a particular purpose or in some cases - not to do something. This may involve a shared drive, access to another piece of land or, in the case of a right to light, a promise not to block a neighbour’s light. Sometimes the right is written down but sometimes it is not, and the right accrues because one party has done something over a period of time.
Circumstances then change. Maybe it is a change of ownership; maybe one party senses an opportunity. It is then that disputes arise. These disputes are highly fact specific and a body of case law has built up to assist with the resolution of these disputes.
Whether you are seeking an easement, or trying to defend a claim for one or simply seeking to uphold a right to light, we have the experience to assist
Contractual Claims on the Sale and Purchase of Land
A transfer of land whether by private treaty sale or by auction will contain a number of conditions. It also follows a process whereby contracts are exchanged and then a short while later, formal completion and the transfer of monies takes place.
However issues frequently arise after the signing of any contract or transfer. Circumstances may change for one side which means that it wishes to pull out of the deal. There may also be a genuine dispute over a particular condition or representation made by one side in the lead up to the deal. Or one side may need to enforce a part of the agreement (eg a claim against a developer of a new home)
These claims revolve around what was discussed between the parties prior to the signing of any agreement, any representations made by the seller and what enquiries the buyer could or should have made before signing.
We have successfully advised many clients on these type of claims with good results.
Restrictive Covenants
Restrictive covenants are a form of private law which prevent one party from doing something on their land (eg building a house) with the benefit of that covenant being held by a neighbouring land owner. These covenants are written into the title deeds for each property but issues frequently arise as to their meaning. These covenants were also written many decades ago to address a particular concern at that time. As circumstances change questions then arise as to the relevance or purpose of the covenant today.
The law has therefore developed a system whereby a party with the burden of the covenant can apply to have the covenant modified or discharged. The person with the benefit of the covenant then has to justify that there is still a purpose and a benefit to be gained from the covenant remaining in place.
The law in this area is detailed and there are many tactical issues involved. We have successfully advised many clients with disputes in this area of law.
Party Wall Disputes
When one party wishes to build on or excavate near a party wall, that party must comply with a notice procedure under the Party Wall act 1996. Building surveyors are largely engaged in this process. However when one party commences work without complying with this notice procedure, disputes can frequently arise.
There are no specific enforcement measures in the Party Walls Act and so legal assistance is then required to address the damage caused by the work which has taken place.
If you have a party wall dispute, we would be very happy to assist.
Orders for Sale on Jointly Owned Property
Property is jointly owned for many reasons. Sometimes it is a matrimonial situation, sometimes it is between friends and on other occasions it is two business partners. When the property is bought and registered in joint names, relations are good so there is little discussion about what happens if the property needs to be sold at a later date. Circumstances then change over time and if one party wishes to sell, a dispute can arise over the circumstances of any sale and most importantly, the percentage split of the sale proceeds.
Whether these disputes are settled by negotiation or by fighting them to a conclusion in court hearing, we have the experience to assist.
Charging Orders and Orders for Sale
If you have a money judgement against someone (ie a judgment debtor), and you know of a property owned by a judgment debtor, then a charging order over that property can be obtained.
A charging order is a court imposed charge of securing a judgement against the property. However the obtaining of a charging order does not force payment. It simply sits on the title of the relevant property accruing interest at 8% per year.
If immediate payment is required, you can issue further court proceedings seeking an order for possession and sale of the property. This effectively allows you to repossess the property, sell it and take your judgment sum plus interest and costs from the sale proceeds. It is therefore a very effective method of recovering a judgment debt.
If you are a judgement creditor with an unpaid judgment, please get in touch with us for further advice.
Landlord and Tenant Disputes
Recovery of Commercial Rent Arrears
Recovery of rent arrears is the cornerstone of any landlord’s business. However due to the coronavirus pandemic, the government has imposed a moratorium on the usual ways in which landlords can recover commercial rent arrears. This moratorium expires on 22 March 2022. A system of binding arbitration will then cover any arrears which have accrued during the pandemic. We anticipate that there will also be new rules on how landlords recover commercial rent arrears after March 2022.
In the meantime, the only method by which landlords can recover commercial rent arrears is via debt proceedings in the County Court of High Court. There have been two High Court cases in 2021 in which tenants have tried to challenge the landlord’s ability to recover rent during the pandemic – but both cases have been decided in favour of landlords.
We have recovered hundred of thousands of pounds of rent arrears for commercial landlords in this way.
Breach of Commercial Leases
Commercial tenants are responsible for complying with a range of covenants in their leases. Some of the covenants are minor and the consequences of their breach are therefore inconsequential. However other covenants are not minor and landlords must take action to protect their positions where breaches of major covenants can have adverse consequences on their properties
Landlords have a choice in this situation – they can elect to enforce the covenant through the courts; or they can elect to forfeit the lease and serve what is known as a Section 146 Notice. They cannot however do both.
Different situations require different tactics. Whichever route a landlord wishes to follow we can advise on all the issues involved.
Forfeiture of Leases
If a landlord decides to forfeit a lease after service of a section 146 notice, further issues then arise. Landlords or their agents can easily waive the breach and with it the right to forfeit. Some breaches are regarded as “continuous” so waiving a breach does not present much of a problem. However some breaches are regarded as “one off” so waiving these breaches can be fatal to a landlord’s claim for forfeiture.
Once forfeiture has been established, every tenant has the right to ask the court for their lease to be re-instated. This is called relief from forfeiture. Each judge has complete discretion on whether relief is to be granted and, if so, on what terms.
The law of forfeiture is a tricky area and expert advice is essential to successfully navigate these issues. Please contact us for advice.
Break Clauses
The right to break a lease at various points during the term are common. They give flexibility to both sides if circumstances change and either the landlord requires the property back early or the tenant needs to move premises.
However exercising a break clause is a precise area. Various conditions have to be fulfilled before a break clause is exercised and the method of serving a break notice is usually very precise. There are numerous opportunities for error. This has huge consequences for a tenant who could be left with a premises they do not want but there is also an unexpected financial upside for landlords in trying to take advantage of any procedural error.
Whether you are tenant seeking to exercise a break clause or a landlord who wishes to challenge a break notice we have considerable experience in this area, so please get in touch.
Dilapidations
Disrepair or dilapidations at the end of a commercial lease is a common problem for landlords. There are some tactical moves which landlords are well advised to make before expiry of the lease but after the lease is finished, the landlord’s claim essentially becomes a debt claim to cover the cost of the repairs.
However it is not a straightforward case of demanding money for the cost of the repairs. The loss in value of the landlord’s freehold interest also comes into question in a number of situations. This can be a difficulty for landlords but it can also prove to be a way out of a potentially expensive claim for commercial tenants.
Disrepair claims must also follow a strict protocol involving a detailed schedule of dilapidations follow a specific timetable and take into account the landlord’s plans for the property.
Whether your dilapidations dispute involves substantive issues, procedural issues or both, we can advise you on the best way forward.
Contested Business Lease Renewals
Under the Landlord and Tenant Act 1954, when a business lease expires, the tenant has the right to request a new business tenancy from their landlord. If a landlord agrees to the tenant having a new lease, then the areas of disagreement are usually the rent payable and the term of the new lease. Surveyors are frequently engaged to resolve these disputes. However should discussions between surveyors not resolve the issues we are always on hand to provide litigation advice on this or other aspects of the renewal procedure under the 1954 Act
Landlords do however have a statutory right to oppose a tenant’s request for a new business tenancy on certain limited grounds. One of these grounds is the landlord’s wish to redevelop the property – known as ground (f).
Strategy and forward planning are the key elements to a ground (f) claim and we have realised many landlord’s aims to secure possession of their properties on this ground.
Adverse Possession / Squatters Rights
Land can be technically owned by one party but for whatever reason that party does not live on it, occupy it or generally keep an eye on it. If another person then occupies the land or maintains it for a period of years then that person can claim squatters rights over it. In legal terms this is known as adverse possession.
It is not easy to obtain squatters rights under the rules which exist today but it is certainly not impossible and there are certain loopholes through which adverse possession claims can be made. The possibility of obtaining potentially valuable land for nothing is a frequent driver of these disputes.
Whether you are a squatter seeking to acquire land or the owner of land who is defending such a claim, we have advised both sides many times in the past.
Possession Proceedings
Commercial possession proceedings are currently banned under the government’s moratorium until 22 March 2022.
However residential possession proceedings can still be pursued. There are essentially two routes – a breach route which is used when the tenant is in arears or rent; and a standard route where the landlord simply requires the property back at the end of the tenancy. The breach route requires evidence of arrears and is dependent on their being at least two months arrears at the date of any hearing. The standard route is dependent on proving to the court that all of the paperwork which is required to be served on residential tenants has indeed been served.
There is a lot of paperwork on the standard route and frequently this paperwork is not in order. In most cases this problem is not fatal to a possession claim. It simply requires some creative advice to resolve the issue and move forward.
Whether you have breach claim or standard claim we can advise you. We have assisted landlords all over the county in recovering possession of their properties from difficult tenants in the shortest possible time.