Land disputes can come in many forms, each with their own terminology and associated legislation, so how do you know which one applies to you?
Whether you are dealing with boundary disputes, property ownership issues, trespassing, rights of way, access to land or damage to land, don’t suffer in silence. Make sure you get specialist advice at an early stage.
Got a question for our land dispute solicitors? Call our specialists on FREEPHONE 0800 1404544 for FREE initial phone advice – with no strings attached.
What are land and property boundary disputes?
Boundary disputes occur when two people, or parties, both believe they have the right to a piece of land. These arguments often begin when one person erects a fence or wall on land which another person thought was theirs.
Many these type of land title disputes revolve around trees (particularly the fast growing conifer leylandii) impinging on a neighbour’s property. Disputes between neighbours about fences and boundaries can prove very distressing – so it’s important to try to resolve them as soon as possible, and certainly before they escalate into litigation.
Click here to read more about Boundary Disputes
Click here to read more about Fence Boundary Disputes
Click here to read more about Party Wall Disputes
Right of way disputes
In the UK we have the right to access (some) land for walking or a number of other leisure activities. You can use public roads and pavements or public rights of way, like footpaths or bridleways. You can walk on all public rights of way and many public rights of way are also open to horse riders and cyclists. Some are even available to motorists.
You can use footpaths for walking and running and currently more are being opened up for mobility scooters and powered wheelchairs. Similarly, bridleways are for walking; horse riding, cycling, mobility scooters and powered wheelchairs.
Byways are open to all traffic for any kind of transport, including cars but ramblers, cyclists and horse riders mostly use them. Restricted byways are for any transport without a motor and mobility scooters or powered wheelchairs.
You can use your right to roam on open access land including common land, moors, heaths, downs, some land containing the England coastal path, and even mountains. If none of these apply, you may still be able to access private land if the land was used as a public right of way in the past, so it is advisable to check old maps and land documents.
There are situations where land has been accessed by the public for at least 20 years without any disputes. This relies on the landowner giving permission or ‘permissive access’.
Click here to read more about Rights of Way Disputes
Common in towns and cities, squatting in residential buildings (like a house or flat) is illegal and can lead to six months in prison, a £5,000 fine or both. Squatting is when someone enters a property without permission and intends to live there. This is sometimes known as ‘adverse possession’ – but adverse possession doesn’t necessarily need to get you into trouble, and can sometimes prove very useful.
Anyone who originally enters a property with the permission of the landlord is not a squatter. So, for example, if you’re renting a property and fall behind with rent payments, you’re not squatting if you continue to live there.
Although squatting in non-residential buildings or land is not in itself a crime, it is still a crime to damage the property.
Trespass to land is however quite different. It involves the “unjustifiable interference with land which is in the immediate and exclusive possession of another”.
Trespassing can involve the right to compensation for harm to people’s rights to health and safety like a clean environment, property, their economic interests, or their reputations. What’s more, in certain circumstances, as passing can be considered a crime under the Criminal Justice and Public Order Act 1994.
Does trespassing have to be intentional?
While dispersing on someone else’s land is normally intentional, the courts have decided that it could also be committed negligently. And even accidental trespassing can incur liability.
What is adverse possession?
Although it is similar in some ways to trespassing, adverse possession is very difficult – in short it is a legal method of acquiring property through continuous occupation, without the permission of the legal owner. We readily handle applications for adverse possession.
Click here to read more about Adverse Possession and how our experienced legal team can help you
Problems with rights of access –what are easements?
An easement is a right to cross or otherwise use someone else’s land for a specified purpose. It allows a person to use and/or enter into the property of another without possessing it, e.g. a landowner may enjoy the right of way over the land of another to access their property.
The most widely known easement is the private right of way but the most commonly used easement is one that allows the underground utility services like water, drainage, gas, electricity, telephone/broadband and TV cables, of one property to pass beneath the land of one or more neighbouring properties.
It comes down to reason and common sense. If a landlord chooses to ride roughshod over a neighbour’s land in his 4×4,for example, then there are going to be issues.
Land disputes – alternative dispute resolution
The terms ‘litigation’ and ‘dispute resolution’ are sometimes considered the same thing, but they actually refer to a quite different legal process. Litigation refers specifically to resolving issues using the court system, while dispute resolution uses alternatives to court. Mediation and arbitration are the best known, and often very successful, forms of dispute resolution in the UK.
Property litigation often involves settling disputes between owners neighbouring adjacent property owners, or between owners and their tenants but can also include other matters involving the ownership of residential, commercial, industrial or agricultural property. But the real problem with litigation is that once the court becomes involved, legal costs tend to escalate. Don’t be under any illusion – litigation is expensive. That’s why we are strong supporters of mediation in particular as a means of resolving any dispute that is gone beyond simple negotiation.
And once an agreement has been reached which both parties can live with, you’re going to need to make sure that it remains binding. Our experienced land dispute solicitors can help you with that.
Residential rent arrears
In general terms, landlord can evict their tenant if they fall behind with the rent so that person could lose their home. But Coronavirus has led to a number of temporary and permanent changes in the law.
Click here to read more about how our landlord lawyers can help you – and find out more about the latest changes to the availability of eviction and possession orders amongst other possible solutions.
Commercial rent arrears
Coronavirus has also led to a number of changes with regard to collecting rent arrears.
Click here to read more about the up-to-date position with regard to Commercial Tenants Not Paying Rent During the Pandemic
Dilapidation cost disputes
Dilapidations represent the exit costs for a tenant at the end of their lease or tenure. These costs are intended to put the property back to its original, pre-let state, i.e. repairs or reinstating any decorating. A schedule of dilapidations is presented to the tenant by the landlord or (usually) the agent. It is not uncommon for disputes to arise over the cost of the work involved.
Don’t treat dilapidations likely. Particularly with regard to larger commercial buildings, they can prove very expensive, especially if they’re not handled correctly. And if a dispute occurs about dilapidations, you may well need the assistance of an experienced surveyor, as well as a solicitor.
Service charges disputes
Service charges are charges payable directly or indirectly for services, maintenance, repairs, improvements or insurance regarding a property. They can also be for a landlord’s costs of management in respect of a dwelling including security. These charges are variable – the whole or part of the charge can or may vary depending on the cost actually incurred.
Service charge disputes are one of, if not the most common dispute between residential freeholders and leaseholders. Don’t let your service to our dispute get out of control. Our team deal with on a regular basis – let us help you.
Security of tenure
Security of tenure is the position where a tenant has the automatic right to remain in possession of the leasehold property on a business premises after the lease reaches its end. If the landlord or the tenant is seeking to end the lease, this can only be done if a notice to quit is issued.
In terms of housing, it is defined as a legal arrangement that offers tenants indefinite tenure of their housing (subject to any breaches of their lease agreement that provide grounds for termination by the landlord).
One extreme solution to lease disputes –forfeiture and possession proceedings
Forfeiture is a legal method for a landlord to terminate a lease, in the event of some default by the tenant. However it is only available if there is a forfeiture clause’ or a ‘proviso for re-entry’ written into the lease.
Forfeiture can be a highly effective way of bringing the lease on a property to an end with no compensation payable to tenants forfeiture enables the premises to be used as the landlord sees fit and allows the landlord to re-let the premises to a tenant more likely to comply with a new lease.
One quite common cause of forfeiture is rent arrears. Dependent on the contents of the lease, this may entitle the landlord to forfeit the lease once the rent has been outstanding for a certain period of time.
However any landlord looking to enforce forfeiture, must take care – and follow the correct procedure
If there is a breach of a covenant to repair, the landlord must first serve a Section 146 notice which states the landlord’s intention to forfeit, and provides the tenant with a reasonable period of time to rectify the breach before forfeiting.
Obviously, it is usually better to have a defaulting tenant than no tenant at all, so commercial considerations such as the ability to re-let, the likely rent under a new lease and the responsibility for business rates need to be considered.
The landlord may be able to repossess the premises without litigation, usually with bailiffs and a locksmith. It will be safer, however, to seek an order granting forfeiture through the courts.
Landlords taking this course must take care not to waive the right to forfeit, as an act of waiver recognises the continuing existence of the lease and communicates to the tenant demands or acceptance of rent or the levying of distress.
Land Disputes – Arguments about restrictive covenants
Restrictive covenants are binding conditions that are written into a property’s deeds or contract by a seller to determine what a homeowner can or cannot do with their house or land under particular circumstances.
Covenants are most often designed to uphold certain standards for all residents. This can mean anything from prohibiting the fixture of satellite dishes or, most recently, security cameras to the front of the house, the parking of caravans or boats in the front of the property and keeping livestock or allowing a garden to become overgrown and unkempt.
The most common examples tend to include:
• Preventing owners from making alterations to a property like an extension or converting a house into flats
• Preventing additional buildings or other substantial structures from being erected on a section of land
• Preventing trades or businesses from operating on property or land.
Other common covenants prevent leaseholders from subletting (which can affect a leaseholders ability to use a flat for air B&B type service combination) or running a business from the property. In addition, covenants restricting occupation of the property to just one family are regaining popularity. This would prevent do or more friends from flat sharing, or the property being rented out as an HMO (or house in multiple occupation).
When it comes to selling or buying land, having a valid restrictive covenant in place can often make a huge difference to price.
And while restrictive covenants cannot simply be removed, it may be possible to negotiate a price with whoever is the beneficiary of the restriction in exchange for them agreeing to remove that restrictive covenant. And in certain very limited circumstances, the Lands Tribunal can discharge or modify a restrictive covenant.
Land Disputes and insolvent tenants
An eternal problem for landlords is when a tenant becomes insolvent and cannot pay the rent. This can have a significant impact on the landlord’s rights and difficulties concerning the ability to cover the arrears; the right to forfeit the lease, possession and any dilapidations.
Once a tenant has started the insolvency process, the rights of the landlord can be affected. The method of insolvency that a commercial tenant uses will also have an effect – if the tenant goes into administration, the restrictions to the landlord’s rights will be different from the restrictions caused by the tenant entering into a Company Voluntary Agreement.
Also, the landlord’s rights will vary further where the tenant is an individual and has applied for bankruptcy.
One of the drawbacks of owning a flat or maisonette on a long lease is that it gradually gets shorter – and that shortening of the lease term gradually reduces the value of the property over time. So, in general terms, shorter the lease, the less it’s worth.
But to counteract that, subject to certain limitations, any leaseholder the flat originally let out for a minimum of 21 years, has the right to extend their lease by an additional 90 years, once they have owned it for two years
This right adds a further 90 years to what is left on the existing lease at what’s termed a “peppercorn rent”. This means that no ground rent is paid, so if the present lease had 70 years left, the new extended lease would be for 160 years.
The landlord is entitled to a premium for extending the lease. This premium is intended to compensate the freeholder for the loss in value of their freehold. The level of premium is based on a formula set out in the Leasehold Reform Housing and Urban Development Act 1993.
As an alternative to this formal or statutory way of extending a lease, it’s also possible to negotiate a lease extension with the landlord on whatever terms can be agreed. If you decide to try to negotiate a lease extension using this informal also called “voluntary” route, there are no rules, and the landlord could refuse to extend the lease or set whatever terms they like – they may want to increase the ground rent as one of the terms. Landlord can also change the deal any stage – and under the voluntary route, there is nothing the leaseholder can do about it.
When using the formal or statutory route, there is a set process which begins by the service of the leaseholders so-called section 42 lease extension notice on the freeholder, and it then follows a set route. Please note – you will need to check that you and your property are eligible for a lease extension. It’s also important that you employed a solicitor who specialises in lease extension – because the vast property solicitors rarely come across them, and often struggle with them. You will also need an experienced surveyor to help you set the premium at the right level.
Fortunately the vast majority of lease extensions complete without major problems. However on the rare occasion that the freeholder refuses to extend a lease or there is a dispute about how it works (perhaps about the level of the premium you will need to pay for the lease extension) the matter can be referred to the First-Tier Property Tribunal.
The 3 most common types of lease extension disputes are as follows:
• The size of the premium payable for extending a lease
• Disagreement about the level of the freeholder’s reasonable legal and surveying costs which are payable by the leaseholder
• The freeholder is arguing that the leasehold is not entitled to a lease extension. There are extremely limited grounds when a freeholder can have grounds to simply a lease extension
Click here to read more about how our Lease Extension Solicitors could help you.
Click here to find out more about the First-Tier Property Tribunal Disputes
Leasehold does not give outright ownership of a home. Leaseholders are homeowners, with some of the benefits that ownership brings like having a financial stake in the property. However, a leaseholder has a landlord (freeholder) who maintains some control over the use of their home, and who will ultimately take it back on the expiry of the lease.
Many purchasers do not understand what leasehold ownership involves. Further, even when they do, there is often no choice over the form of ownership; flats are almost invariably sold on a leasehold basis. And there are a surprising number of leasehold houses – though recent creation of so many leasehold houses by many of the big national developers is currently hugely controversial. We regularly act for the owners of these houses in either extending the lease or buying the freehold from the likes of Persimmon
As a result, leaseholders been provided with what are referred to as “enfranchisement rights” – broadly the right to join together with fellow leaseholders to buy the freehold of their block from the freehold. It’s often referred to as leasehold, freehold or collective enfranchisement, or freehold purchase.
As with lease extension, the most common cause of disputes are often the size of the premium payable for the freehold purchase and disagreement about the freeholder’s reasonable legal and surveying costs
But in addition, because, particularly with larger blocks, enfranchisement is much more can complex, and there are more likely to be arguments put forward by the freeholder to try to defeat enfranchisement. That’s why it is particularly important for anyone looking to buy the freehold of their block to make sure that the solicitors they choose really understand lease enfranchisement.
As with lease extensions, if there is a dispute about any potential enfranchisement – it can be referred to the First-Tier Property Tribunal
Here at Bonallack & Bishop, we have a 5 strong leasehold team specialising in lease extension, lease enfranchisement and the leasehold right to manage.
Click here to read more about how our Lease Enfranchisement Solicitors could help you.
Click here to find out more about the difference between Leasehold Enfranchisement and the right to manage and which might suit you best