Residential Property

Sale & Purchase Disputes

Generally, Seller’s information needs to be full, correct and accurate, especially as disputes concerning alleged mis-descriptions of property can have expensive consequences. Compliance with the terms of the contract is another critical area. Non-compliance can lead to delay or even failure to complete. We advise regularly regarding the conditions of sale, serving notices to complete, compensation and other issues arising from sales contracts. We have been involved with various disputes of this type such as “Is the property prone to flooding?”, Will vacant possession be given?”, “Is the Seller aware of any disputes?” are all examples. Some sales contracts are complicated because they have conditions to be fulfilled such as building contracts or purchasing of plan. Such contracts can also have difficult problems such as if the property is not built as agreed or at all. This can relate to insolvency matters with the developer or interpretation issues and disputes regarding what was promised and what has been built. In most cases, we work closely with building surveyors to resolve any interpretation issues and, where possible, find a satisfactory commercial solution.

The sales process can lead to other disputes such as whether or not vacant possession has been given and the condition of the property. We often advise regarding contract interpretation and the law concerning, for example, the type of items that are likely to be included in a sale or items that should be removed from the property by the Seller as well as items that should not be removed, commonly referred to as fixtures.

Restrictive Covenants

There are numerous restrictive covenants that can affect residential property. Restrictive covenants can affect land to prevent building or might relate to ongoing use of a property.

The enforceability of restrictive covenants is a complex area. Matters to be considered include the actual wording of the covenant, the intention of the covenant, whether the original parties to the covenant still exist and whether there is still benefit derived from the covenant or any party capable of enforcing the covenant.

It is advisable to take advice at an early stage regarding restrictive covenants. An application might be made to modify or discharge a restrictive covenant in certain circumstances. The process is likely to require a detailed understanding of the property itself as well as the title documents. It may involve assistance from a Surveyor in terms of valuation and other evidence. It might also be possible to negotiate the relaxation or variation of a restrictive covenant. We assist in exploring commercial solutions wherever possible.

We also act for landowners wishing to enforce restrictive covenants such as to restrict a development on neighbouring or nearby land.

Planning Issues

Planning is a specialist area. We work closely with many planning consultants and Planning Barristers. The planning law can cover many different scenarios.

A residential property owner may wish to oppose a planning application or make representations. A property owner may wish to make an application for consent. We assist with individual applications or in respect of developers and development schemes. Understanding the regulatory framework is important. We work closely with planning consultants in terms of the latest guidance. Ascertaining the best tactics and procedure is useful at the outset and will assist if an appeal scenario is needed.

We regularly instruct Planning Barristers and experts in terms of planning appeals and other disputes such as the validity of planning conditions. Where necessary, we advise regarding judicial review and deal with the Court procedure for challenging decisions or restrictions and in respect of disputes concerning the planning process.

Neighbour Disputes

Works to a nearby property/neighbour can cause noise or other antisocial uses. Certain nuisances can be actionable and the Local Authority can have power to prevent such uses or levy a fine. Boundary disputes in residential property can be particularly emotive. Expensive disputes can arise, even though the actual value of the land in question is not great. We regularly work with experienced land surveyors to assess evidence regarding ownership and to advise carefully so as not to add to the parties’ problems. We seek to assist in finding a commercial solution to these difficult issues. Often, a boundary dispute might relate to an adverse possession claim where one party claims to have been in adverse possession for more than ten years. Timing issues are particularly important and there are often problems in evidencing actual and continuous use. We also assist clients in making and defending applications to the Land Registry in respect of adverse possession.

Another common neighbour dispute relates to party walls, where a wall is erected on the boundary. We work closely with party wall surveyors who will assist in terms of what agreed works may continue and what safeguards should be put in place to protect the adjoining owners. However, disputes often arise in this scenario relating to alleged damage of the adjoining owner’s property or disputes regarding costs, timing and the method of works.

Another area causing frequent disputes is access and shared access arrangements. Issues include interference with rights of way or intensification of use. Car parking rights is another area relating to number of cars, times and permanence of use.

Repairs

Although the tenancy document itself should govern the responsibility of the parties, a Landlord is generally required by statute to maintain the fabric of the building and services relating to short residential leases. There are a range of other statutory duties for Landlords to understand. Health and safety, appliances, keeping premises safe for visitors are all important areas of the law.

Often disputes arise in terms of the condition of the property after a tenancy and comparisons with the Schedule of Condition/Inventory at the commencement. Such disputes can be difficult to resolve without the assistance of a surveyor. Arguments may arise in terms of the costs or reasonable repairs or replacement. Often there is a link with the rent deposit and rent deposit schemes may provide for an arbitration/dispute resolution service. Inevitably, however, this can lead to delay and sometimes the deposit can be “locked” pending resolution over a long period of time. Disputes, notices or even enforcement issues can arise from Landlord’s statutory obligations.

Obtaining Possession

Private Landlords often think that the process of obtaining possession should be straightforward as the Landlord only has to give notice to the Tenant. In practice, however, many disputes arise over the validity of notices. Important points include wording, the notice period given, method of service and whether or not the Landlord has complied with its statutory obligations. If a Landlord is seeking possession prior to the tenancy termination date, a Landlord will usually need to prove a “fault” ground and the Court has discretion. Even after the tenancy has come to an end, the process can be time consuming and delayed especially if there is a counterclaim or dispute by the Tenant. The period of time necessary for enforcement, even after a Court Order is made, can be excessive.

We regularly deal with such issues and can assist in terms of options and the practicalities of the process. Tenants also have rights under the Protection from Eviction Act 1977, requiring a Court Order prior to eviction. Landlords need to take care to act reasonably. It is a criminal offence to harass a Tenant.

Agent’s Commission

Bearing in mind the likely value of a house sale/purchase, it is not surprising that there are so many disputes regarding Estate Agents’ commission. Most disputes relate to whether an agent was the effective cause of a transaction. This might involve an examination of how the Buyer/Seller was introduced, the time period (whether the instruction was current) and exactly what work was done.

Much will depend upon the terms of the Contract itself and whether or not there is compliance with the statutory regulations in terms of defined wording including “sole selling rights” and “sole agency” etc. Many Contracts are short, defective or even non-existent. Does this mean there is no entitlement to fees? Sellers can be faced with the nightmare scenario of commission claimed by two agents for the same sale. We can assist in interpreting the wording of any agency instruction in the hope that disputes can be avoided. We act for Estate Agents and individuals.

Nuisance

There are many different types of nuisance problems that can affect residential property. Often leases allow Landlords rights to carry out works on the property or adjoining properties. Landlords might need to effect repairs, and some might wish to redevelop. Even if such rights are reserved under the lease, the balance between the Landlord effecting works and the Tenant’s right to use and enjoy the property can come into sharp conflict.

These disputes can be difficult to resolve, but a Landlord should be careful to act reasonably. A Tenant needs to now its rights regarding an ability to stop the Landlord’s nuisance in a worst case scenario. We work with surveyors to agree mitigation programmes and can advise regarding rights and remedies.

In some instances, Tenants might be the cause of the nuisance. In recent years modern forms of property letting has added to risks, such as Airbnb. The use of a property and control of occupiers is of paramount importance. Often, gathering sufficient evidence to show a Tenant’s nuisance, often over a long period, is critical. We have experience of acting for Landlords and Tenants in such circumstances.

Another area of potential nuisance relates to problems caused by other Tenants in a building and we are used to considering commercial solutions as well as considering the inter-relationship between leases in residential blocks.

Long Tenancies

For Landlords and Tenants the process of extending a residential lease under statutory rights (the acquisition of a new 90-year term) can be complicated.

Qualifying Tenants can acquire the freehold of their building (enfranchisement) and might extend leases as part of the process. Understanding the interplay between rights and options is important.

Often disputes relate to the validity of notices. There are strict conditions including timing. Otherwise, disputes often arise in respect of valuation and valuation assumptions. We are used to dealing with specialist Surveyors and Valuers and the process of making applications to the First Tier Tribunal to protect rights/comply with time limits or for determination if negotiations are unsuccessful.

Lease extensions and leasehold enfranchisement is often an area linked to professional negligence. We can assist with such cases.

Management issues and the Landlord’s failure to provide information can also be contentious. Qualifying Tenants are able to require the right to manage in certain circumstances. The pros and cons need to be understood as well as the process.

Other property dispute that matters include neighbour disputes, nuisance and disrepair.

Short Tenancies

Most tenants have rights under housing law as well as the provisions of the lease, but what action can a Tenant take if the Landlord fails to fulfil obligations?

Income generation can come at a price. Short tenancies are governed by compulsory lease obligations and a long list of ever increasing statutory duties. Rent deposits, repairs, multiple occupation and health and safety. Areas operating Landlords’ Licensing Schemes add to costs, complexities, compliance problems and the risk of serious penalties.

The consequences of failing to comply with statutory duties, such as failure to register a rent deposit or provide statutory information or failing to comply with licensing requirements, can be particularly harsh. This can result in a Landlord’s inability to recover possession, fines and potential criminal prosecution. Local Authorities have powers to serve Repair Notices in the case of disrepair. Landlords and Tenants can require advice to understand Estate Agents’ duties and restrictions on how they operate.

We are experienced in acting for Landlords and Tenants when possession is required. When can notice be served? When will possession be given? How to obtain compensation for use and damages? Timing, tactics, validity of notices are all common areas requiring advice.