Sarah Mansfield

Public right of way claims – what are they, and can they be prevented?

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Public right of way claims

What are they, and can they be prevented?

As a landowner, you may have heard of the term ‘public right of way’ and wondered what it means. A public right of way is an area of land that is open to the public for passage, such as a path or roadway. In some cases, this right of way may be established through legal means, which can be complicated and frustrating for property owners.

In this article, we will discuss what public right-of-way claims are and how to prevent them.

What is a public right of way claim?
A public right of way claim is a legal process that allows the public to use a certain area of private land for passage. These claims can be made by government bodies or by individuals, and they are typically made when there is no existing public access to a particular area. Once a claim has been made, the landowner is required to allow public access to the claimed area.

How are public right of way claims made?
Public right of way claims can be established through various legal means, including:

Right of way through lengthy time period
When someone uses a portion of private land for a specific period of time without the owner’s permission, rights of way can occur. This is known as prescriptive easements. If this use is continuous and open, the user may be able to claim a right of way easement.

Voluntary
When a landowner voluntarily gives a portion of their land to the public for a specific use, such as a road or pavement, this is known as dedication. This dedication can be done through a written agreement or by simply allowing public use of the land for an extended period.

How to prevent public right of way claims
If you own land and want to prevent public right of way claims, there are several steps you can take. First, it is important to be aware of any existing rights of way or public access points on your property. This can be done by reviewing your property survey or consulting with a real estate solicitor.

If there are no existing public access points on your property, you can take steps to prevent claims from being established. One way to do this is to clearly mark the boundaries of your property with fences, signs, or other barriers. This can prevent people from entering your land and claiming a right of way.

Protecting your property
Public right of way claims can be a complicated and frustrating process for landowners. By understanding how these claims are established and taking steps to prevent them, you can protect your property rights and avoid potential legal disputes. If you have questions about public right of way claims or other property issues, it is always best to consult with a property solicitor for guidance.

If you have any concerns about public right of way claims and would like to arrange free half hour consultation with a member of our litigation team, please contact us on 01244 356 789 or email info@cullimoredutton.co.uk.

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

Renters Reform Bill – Update

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Renters Reform Bill – Update

The government introduced the Renters’ Reform Bill on 17 May 2023 to deliver on the it’s commitment to “bring in a better deal for renters”, creating “safer, fairer, and higher quality homes”.

The aim of the bill is to tackle some of the problems in rented housing, namely lack of homes, lack of security for tenants and failure to meet basic decency standards.

The Second Reading of the Renters Reform Bill – expected some weeks ago – will now not take place until the autumn. The House of Commons went on it Summer recess on July 20th 2023, but this Bill was not included in the business timetable released by the government. Although there has been no progress on the Bill being debated, government has released some information related to the proposed Private Rental Sector Ombudsman.

This Scheme is proposed to operate as a non-profit body and may also be utilised as a combined letting agent, tenant and landlord redress scheme. Many of the details are still being discussed. A round table discussion between a member of the Levelling Up, Housing and Communities Committee, and senior representatives from lettings agencies is proposed this Summer. There is currently a survey being conducted with letting agencies to prepare for this opportunity to discuss the terms of the Bill.

The main items in the Renters Reform Bill include:

  • Abolishing ‘no fault’ 2 months’ notice pursuant to section 21 Housing Act 1996 and assured shorthold tenancies, instead making all tenancies assured and periodic. Government states they hope this will provide more security for tenants and empower them to challenge poor practice and unfair rent increases without fear of eviction. Concerns envisaged from these substantial legal amendments are that it will become more difficult for non-commercial landlords, such as landlords with one or two properties as their pension, to evict tenants and manage their assets. Many Landlords are turning to short term lets such as Air B&B as the return is better and the management costs and compliance requirements much lower. There is a risk this change will have a “knock-on” effect, compounded by increased tax burdens for landlords will reduce the amount of private rental property, rather than make it more freely available.
  • Government intends to introduce more comprehensive possession grounds to counter the effect of removing “no-fault” grounds for eviction, by including a ground enabling a landlord to sell their property or move in close family and to make it easier to repossess properties where tenants are at fault for rent arrears and anti-social behaviour. It must be noted these grounds are already partly included in current grounds, but these new grounds cannot be used if a tenant has been present for less than 6 months. By default this will create a fixed term even though the new tenancy will be periodic, if action cannot commence for six months for some grounds.
  • The Government highlights the right for a tenant to appeal excessively above-market rents purely designed to force them out, however, it is questionable whether this is a serious problem for many tenants. Landlords retain the right to increase rents to market value. The First-tier Tribunal will continue to be able to determine the actual market rent of a property if an application is made by a tenant or a landlord. Rents are increasing due to the increased costs of living with most landlords not charging “excessive” rents, simply market rents. This provision will assist a minority of tenants struggling with excessive rent increases but may not change the position of most tenants but will increase costs for landlords if faced with a number of rent review challenges.
  • Government plans to introduce a Private Rented Sector Ombudsman which they hope will be faster, cheaper, and less adversarial than the court system. It is unclear how this will be funded at this stage and what powers will be provided to the Ombudsman as Regulations for the Scheme are not yet being considered.

A proposal to create a Privately Rented Property Portal to assist landlords with understanding their legal obligations and compliance requirements; linked to local councils’ licensing schemes. This is to assist with targeting enforcement action, but that is already the aim of local licensing schemes. In reality the licensing schemes need proper funding so without that will this proposed scheme improve the position for tenants or landlords?

We now wait for Government to put this Bill before the House of Commons for the Second Reading and await feedback from ongoing discussions on the proposed changes.

If you are a landlord or tenant who would like a free initial consultation with a member of the Proerty Litigation team simple click on the “Speak to Our Experts” button on this page, call us on 01244 356 789 or email info@cullimoredutton.co.uk

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

The nurse who became a solicitor

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Sarah Mansfield is a Legal Director in Cullimore Dutton’s Property Litigation team. She joined us in April 2021 and is a highly experienced solicitor and litigator who acts for our private and social landlord clients, freeholders and management companies and developers. Here she talks about what inspired her to leave her job as a nurse and retrain in the legal field.

What inspired your change of career?

I started my career as an accident and emergency nurse in London after gaining qualifications in intensive care, anaesthetics and recovery care.

I really enjoyed the job but I’ve always been ambitious and, because I qualified as a nurse without going down the University route, I wanted to stretch myself and get a degree.

It had to be something vocational – I also applied to be a flying doctor in Australian – and something that made a difference to people. I chose the law.

 

What do you love about your work?

What I do is pretty unique because I do everything a property agent does as well as all the legals. It’s a complete offer.

I’m also a practical problem solver and love sitting down with a client and applying my knowledge to an issue and coming up with the solution.

I’ve got a huge interest in all the issues surrounding cladding, following on from the Grenfell Tower fire five years ago.

As well as being involved with the Liverpool Law Society and London Law Society on cladding in relation to property law, I regularly talk to my property clients who are concerned about how it impacts on them and often act as an intermediary for them.

 

Tell us about life outside work

I’m involved with Merseyside Water Rescue, a volunteer-based Search and Rescue charity which operates a rescue boat around the Liverpool docks.

Established in 2018, it is the only dedicated safety boat on the South Liverpool Docks and we attend an average of 100 incidents every year.

The charity fills the gap between the emergency services and the coastguard and helps to provide assistance and care to people in trouble in the water.

I also enjoy sewing and furniture upholstery, photography, cooking and walking my two dogs.

Sarah Mansfield

Mould and maintenance in rented housing

/ , , Legal Director/ /by

Mould and maintenance in rented housing: Tragic case of must be wake-up call for landlords

A lesson must be learned from the recent tragic case of two-year-old Awaab Ishak, who died after his health was compromised by mould growing in the rented home where he lived.

Both private landlords and providers of social housing are being urged to go above and beyond when it comes to maintenance and repair responsibilities.

At the inquest into the toddler’s death, the coroner heard that Rochdale Boroughwide Housing had taken no action, despite Awaab’s father reporting the problem repeatedly over a period of years. Ruling that the child’s death was caused by exposure to mould in the one-bedroom housing association flat he shared with his parents in Greater Manchester, the coroner said the incident should be a “defining moment” for the UK’s housing sector.

Those sentiments have been echoed by Government housing minister Michael Gove who has said: “Every single person in this country, irrespective of where they’re from, what they do or how much they earn, deserves to live in a home that is decent, safe and secure.”

Landlords have a legal responsibility and duty of care to make sure a property is free of damp and mould, among other things, under section 11 Landlord and Tenant Act 1985 but interior condensation and damp in the property may arise through the actions of the tenant, such as lack of ventilation and may not arise from a direct breach of s11 or the express repairing obligations but nonetheless makes the property unfit for human habitation.

Rather than look to shift the blame, landlords are being encouraged to work with tenants to resolve problems. If no structural problem can be identified, such as rising damp or leaking roofs and gutters, damp and mould might arise from lack of heating or from condensation caused by drying clothes inside, showers with little ventilation, or by not opening windows on a regular basis. This lack of clear structural defect should not prevent Landlords from taking steps to help and educate their tenants and continue to monitor the property; as they are likely to be able to offer assistance to tenants to reduce mould build up and to identify a structural defect that exists, but is not yet apparent.

The problem is likely to be high on the agenda in the coming winter with tenants expected to turn down, or even turn off, their heating in the face of record fuel prices, which is likely to create or exacerbate problems with damp. Landlords could take action now to help tenants understand how best to manage this – the solution could be as simple as fitting an extractor, or making sure ventilation isn’t blocked.

Working together in this way may help avoid bigger problems in future.

Some tips have been suggested by Citizens Advice Bureau and the housing charity Shelter to help tenants manage condensation and ventilation. These include:

  • Avoid using portable gas or paraffin heaters which can generate a lot of moisture into the air
  • Ensure tumble dryers have extractor outlets and are vented outside, unless they are self-condensing
  • Dry wet clothes outside rather than on heaters or radiators, or use the bathroom where the door can be closed and extractor switched on.
  • Do not block ventilation such as air vents, or disable extractor fans, as an attempt to warm up the property, as this will see moisture build up and make the place colder in the long run.
  • Everyday activities like cooking, showering and drying clothes create moisture in your home which can lead to condensation.
  • Cover pans when cooking and close internal doors when you cook or shower
  • Make sure there is a gap between furniture and external walls for air to circulate and open bedroom windows for 5-10 minutes when you get up as moisture builds up overnight.
  • Try to keep a low background temperature of at least 15 degrees in all rooms, rather than extremes of heat and cold which may happen when heating is turned off for most of the day and boosted for a short time in the evening.

There is also a regulatory impetus for housing associations and local authority landlords to act. Following the Rochdale case, the Regulator of Social Housing has written to registered providers of social housing, highlighting their responsibility to take action to protect tenants from hazardous damp and mould.

The regulator has said that all social landlords will need to provide evidence to show they have systems in place to deal with damp and mould issues and manage health risks to their tenants.

Further regulation is on the horizon, with the Social Housing Regulation Bill which is passing through Parliament. But whether you are a private landlord or managing social housing, this regrettable case should certainly be a wake-up call to ensure you do right by your tenants before it’s too late.

If you are a landlord or tenant facing mould or maintenance issues in rented housing, and would like a free initial consultation with a member of the Proerty Litigation team simple click on the “Speak to Our Experts” button on this page, call us on 01244 356 789 or email info@cullimoredutton.co.uk

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

Is this crunch time for residential landlords?

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Proposed new legislation is latest in a fast-changing landscape for private rented sector

Is this crunch time for residential landlords?
Residential landlords already struggling to keep up with legislation and guidelines, including the tenant protections extended by the government during the pandemic, may feel they have been experiencing constant waves of change so far – from fast-diminishing returns following cuts in tax relief through to the complexities of right to rent checks. But now, gathering power out to sea, lies a potential tsunami.

And while it includes a raft of legislation designed to curb poor practices and unscrupulous landlords, it will, nonetheless, impact the whole sector, with those ‘accidental’ landlords and small-scale property owners likely to be most affected, potentially leading to a significant sell off in the sector.

The Government’s long-awaited White Paper – A fairer private rented sector – finally arrived in June. It sets out structural changes, the biggest for renters in a generation according to the press statement from the Department for Levelling Up, Housing and Communities.

The aim is to improve conditions and rights for those in all housing. As well as changes in the law for privately rented property through the Renters Reform Bill, the Social Housing Regulation Bill will make all registered social housing providers subject to a tough new regulatory regime, with rigorous inspections and stronger powers to tackle failings by social housing landlords.

Re-shaping the renting landscape
For private landlords, the headline takeaway is that the sector will be subject to the Decent Homes Standard for the first time, giving all renters the legal right to a safe and warm home, and previously, Government had indicated it would ban Section 21 ‘no fault’ evictions.

This latter change is one of the most fiercely debated for landlords. The ambition of the legislation, abolishing section 21 of the Housing Act 1988 and re-framing the grounds on which a landlord can regain possession under section 8 of the Act, is intended to protect tenants from unscrupulous or unpredictable landlords.

Alongside, the Government had planned to introduce a simpler tenancy structure which it says will be more secure for tenants, yet more flexible for both parties, to re-balance the effect of removing section 21 no fault claims for possession, there is no current evidence this will now take place. No further steps have been made regarding the abolishment of section 21 and there is no evidence it is high on the current Government’s agenda.

If implemented, there will be a shift from assured tenancies and assured shorthold tenancies onto a single system of periodic tenancies for all privately rented accommodation. The effect of this change will be that a tenancy will only end if the tenant chooses to do so, and gives two months’ notice to the landlord, or if the landlord has a valid ground for possession. This will have an impact on the private rented sector, particularly on those Landlords who own just one or two properties they rent out. They may find they simply cannot recover back their property as their reason for ending the tenancy does not fall within the provided grounds or any of the new proposed provisions.

As landlords will only be able to evict a tenant in reasonable circumstances, the Government is making changes which it says will strengthen the position for landlords with legitimate grounds for taking back their property. This includes making it easier for them to evict tenants who are wilfully not paying rent, or who are repeatedly engaging in anti-social behaviour, and with scope to end a tenancy when a property is intended to be sold, or for the landlord’s own use.

There are also plans to create a passport form of deposit, to overcome the need to raise second deposits when moving home. A topic which has also been the source of much discussion among landlords, who see problems in releasing deposits before they may have had full opportunity to check for tenant damages.

Also, rent increases will be restricted to once annually, with an easier route for tenants to challenge increases through the First Tier Tribunal, and rent review clauses abolished altogether.

A new Ombudsman service will be established to provide a faster, less adversarial dispute resolution service instead of going to court, and all private landlords will have to participate. Other mediation and alternative dispute resolution procedures will be introduced to enable landlords and tenants to work together to reduce the risk of issues escalating.

And a new Property Portal will give landlords, tenants, and local councils a one-stop route to demonstrate and check compliance and other information, the intention being that tenants can check on landlords before taking a property and for local councils to have the necessary data to tackle criminal landlords. There are also plans to integrate the existing functionality of the Database of Rogue Landlords into the planned Property Portal, to make these publicly visible.

It will become illegal for landlords or their agents to apply a blanket ban on renting to families with children or those receiving state benefits. In future, this may be extended to include other groups such as those leaving prison.

Landlords will have to demonstrate good reasons for refusing tenant requests to keep a pet in their property, although landlords will be able to require an insurance indemnity from the tenant to cover the cost of any potential damage by the pet.

Against this backdrop of increasing complexity and lower yields, many private landlords, particularly those who may have fallen into the position accidentally – following a career move or perhaps inheriting a property – may be considering whether to divest and move out of renting altogether, or to move into short term, holiday letting.

As ever, there are pros and cons, and it’s worth considering some of the other potential changes being considered by Government.

If you are a landlord or tenant who would like a free initial consultation with a member of the Proerty Litigation team simple click on the “Speak to Our Experts” button on this page, call us on 01244 356 789 or email info@cullimoredutton.co.uk

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

Garden predators such as Japanese knotweed invade the courts

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Garden predators are taking root in the courts, as householders take action to fight off plant invaders that can be highly destructive and undermine property values.

One of the most common reasons for garden-related legal action is when Japanese knotweed has taken root. This highly invasive, aggressive and fast-growing plant can cause structural damage to building structures, with roots that can spread seven metres.

Even the smallest amount of root material is enough to allow new growth, meaning removal usually involves costly specialist waste disposal. Classified as hazardous waste, landowners can be fined up to £5,000 or sent to prison for two years if they allow contaminated soil or plant material from Japanese knotweed to spread in the wild.

Property values may be downgraded significantly where knotweed is present, and a landmark ruling in 2017 established that landowners are responsible if they do not prevent the plant from spreading from their land to adjoining properties. Here, a group of homeowners in South Wales took action against Network Rail after Japanese knotweed grew into their garden from adjoining railway sidings. In spite of there being no physical damage, the court ruled in their favour saying that the presence of Japanese knotweed was sufficient reason for compensation, as it had the potential to seriously affect the market value of a property. The judgement was later upheld by the Court of Appeal.

A further case in 2019 saw a £50,000 compensation pay-out being made after a surveyor failed to tell a buyer about knotweed at a £1.2 million flat.

And in one of the latest cases to reach the courts, the owners of a property in north west London are claiming £250,000 in compensation from their neighbours, saying that a failure to deal with knotweed has devalued their house, which would otherwise now be worth £1.67 million.

Typically, mortgage lenders have restricted their lending on properties that are affected and homeowners have found themselves having difficulty in selling, or finding the value of property significantly reduced.

But there may be a shift in attitude in future. For this year the Royal Institute of Chartered Surveyors (RICS) has issued new guidance for valuing property where knotweed is present. The RICS guidance for its surveyor members on how to assess the impact of any infestation suggests that previous parameters were overly strict and marks the end of the so-called “seven metre rule”. It also marks a shift in stance on managing any infestation, from permanent removal to achieve eradication towards management of the problem through herbicides.

While there may be a shift in future, until we see clear evidence of a greater acceptance of knotweed from surveyors and lenders, the message has to be to keep on top of any infestation, whether on your own property or in a neighbouring garden.

If it’s on your land, while there is no legal requirement to remove Japanese knotweed (unless it’s causing a nuisance to neighbours), inaction is likely to result in a bigger problem in future. Potential buyers will be concerned over the presence of knotweed so I you do not take active steps to remove/reduce the spread of the invasive plant then you are likely to struggle to sell your house in future.

Where you know it to be present on adjoining land, you should get a request on record for the neighbour or landowner to ensure it does not spread over the boundary. And once there is evidence of it crossing the boundary to your property, you may have grounds for a nuisance claim, and to ask for an eradication programme and guarantees from a specialist company, as well as seeking compensation.

Your home is usually your biggest asset, so it’s important to protect it – whether you’re planning on moving in the near future or not. Certainly, when a property is being sold, part of the conveyancing process includes a comprehensive questionnaire for the owner, which includes asking whether Japanese knotweed has ever been found on the property.

Why use us to support you with your Dispute?

Our team has more than 70 years’ experience of helping clients to resolve disputes and in as cost effective and stress-free manner as possible.

Our team are all experts in this area of law and specialise in helping, supporting and advising clients in finding solutions and resolving these kind of issues.

We understand the distress and disruption that disputes can create. We will work with you to resolve these issues and provide solutions which work for you.

What our clients have said…

“What a fantastic service provided by Cullimore Dutton. Sarah Mansfield who represented my difficult case delivered nothing but the very best. A strong no nonsense approach who got the job done. I highly recommend A++++++”
Cullimore Dutton Disputes client

If you have any concerns about Japanese knotweed and would like to arrange free half hour consultation with a member of our litigation team, please contact us on 01244 356 789 or email info@cullimoredutton.co.uk.

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

Further help for Leaseholders with Costs of removing Cladding

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From Tuesday 28 June 2022, the leaseholder protections in the Building Safety Act 2022 came into force providing further help for Leaseholders with Costs of removing Cladding.

Qualifying leaseholders are offered much greater protection and, in many cases, will pay nothing to remove dangerous cladding, and the amount they can be asked to contribute to fixing other historical building safety defects is firmly capped.

Before qualifying leaseholders are asked to contribute to these costs, landlords must now provide a formal legal certificate, or demonstrate that the costs do not relate to works covered by the Act. The Act includes a number of schemes to protect non-qualifying leaseholders from remediation costs, if remediation is needed or is ongoing as with many developments.

Who benefits?
A qualifying leaseholder who lives in a building above 11 metres (or 5 storeys) which is their main home, or they own no more than three UK residential properties in total, should not pay any outstanding invoice for historical cladding or non-cladding building safety costs that were caused during the construction or refurbishment of the building as they are now protected from all cladding-related building safety costs. This Act is designed to help those living in flats or those who have one or two flats as a pension for example, it is not to designed assist serial landlords.

Leaseholders will no longer be expected to pay to remove dangerous cladding, and the amount that can be asked for as a contribution for fixing other historical building safety defects is firmly capped. The Act does, however, suggest a ceiling of £175,000 so there still many Leaseholders concerned the Act will not assist them. We await guidance to see if this concern is addressed.

Any existing invoices are no longer valid, and any landlord or agent who seeks to enforce them could be committing a criminal offence. Again, guidance is awaited.

Before a landlord can charge any historical non-cladding costs, they will need to fulfil a series of financial reporting requirements, otherwise the Act requires them to pay all building safety costs in full, with no charges at all for leaseholders. We again await the detail.

If you do not fulfil these criteria there are other routes for Non-qualifying leaseholders. Firstly, you should check whether the developer of your building has signed the Building Safety Pledge with developers. If they have, then the developer will be paying to fix all life-critical fire-safety risks, including non-cladding defects. If the developer or an associated company still owns the building, then they will also be completely liable for the repair work.

Where an assessment following guidance suggests that work is necessary to make your building safe, then funding schemes may be available so the freeholder or landlord may still be able to apply to the Building Safety Fund, the next phase of which will open shortly for buildings over 18 metres.

In addition, a new scheme for buildings over 11 metres tall, is to be funded by developers through the Building Safety Levy with further guidance will be set out in the coming months.

New Building Safety Regulator
Central to the Act is the appointment of a new Building Safety Regulator within the HSE. The regulator will have to approve higher risk residential projects over 18m at the planning application stage and at initial building control stage. This will assist in preventing problems repeating with future buildings. Designs for such projects will need to be submitted to the new regulator at ‘gateway’ points. The regulator will have the power to freeze projects if safety is compromised.

New Homes Ombudsman
There are plans to create a New Homes Ombudsman to be set up for new homes, essentially to resolve complaints over defects from home buyers to protect the from costly legal disputes which is some benefit to new build homeowners.

Finally, for those wishing to claim back costs and damages from living in defective buildings, Retrospective liability is extended to 30 years. The act amends the Defective Premises Act (DPA) so that it covers refurbishment and other works in addition to new dwellings and extends the time period for compensation claims for retrospective work from six years to 30 years.

Next steps are for the guidance to be published and to hope that the recent change in Government will not cause unnecessary delay in implementing these changes.

If you have any concerns relating to the removal of cladding and would like to arrange free half hour consultation with a member of our litigation team, please contact us on 01244 356 789 or email info@cullimoredutton.co.uk.

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

 

Sarah Mansfield

Check the ground rules to avoid boundary disputes

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The warm weather and longer days sees a surge in interest in garden works each year, and where householders improve and replace fences, walls and hedges, boundary disputes are sure to follow…

boundary disputes

One recent long-running boundary dispute case saw an Essex couple fighting over six inches of disputed land ownership for eleven years, with costs predicted to be as high as £60,000. The couple, Philip and Denise New, say they have had to remortgage their home to cover the costs after losing their case.

The argument started after they replaced rotten fence panels: they say they used the original cement posts that had been there for 50 years, but their neighbours said the fence was in the wrong place and that the News were trespassing on their land.

Mediators and land professionals were called in, but the neighbours were unable to reach any agreement over the disputed land, with the case finally reaching the High Court.

This was an extreme example, but boundary disputes have a tendency to inflame neighbour relationships.

Boundary disputes can be expensive
Boundary disputes can be expensive, and litigation can often lead to a decision that neither party is happy with, but if both parties communicate a satisfactory resolution can been achieved.

The best approach is to try and avoid arguments arising in the first place is by having a quiet chat with neighbours before you do the work. If that highlights a difference of opinion and you can’t resolve things, then staying civil is important. You still have to live next door to each other and even if you think a house move may be a solution, remember you have to declare any disputes when you come to sell a property these days.

How do boundary disputes arise
Boundary problems often arise because nobody knows who owns and is responsible for a fence or the location may not be clear from Land Registry records. While modern housing will clearly state who owns which boundary, or whether it is a party fence, it is not always clear with older properties. Locating original title deeds or checking with the local authority may help to recover old documents but if no documentary evidence is available, then more work will be needed.

Boundary disputes solutions
One option is to apply to the Land Registry for what is known as a ‘determined boundary’, obtaining an expert’s report to make your case and submitting with a surveyor’s drawing of the proposed boundary. Approval is not a guaranteed solution, as the neighbour must still agree with the determined boundary; if they don’t then it would mean going to a tribunal.

Otherwise, an offer of payment for any area of land under dispute, in return for setting an agreed boundary may be a solution.

Another possibility where there is uncertainty over the boundary line would be to fence the area concerned, then after ten years an application for formal ownership can be made, claiming ‘adverse possession’. This may be an option where the adjoining landowner is not known or other situations where no immediate neighbour is involved and actively disputing the boundary.

Establishing where the boundary is and who is responsible for it does not place any requirement on the owner to replace a fence, so if you are the one determined on the upgrade, it may be worth considering offering to pay for it. There is no reason why not, even if you are not the one who is responsible, but you will still need to get agreement from your neighbour first. Discussing what you have in mind also gives an opportunity to agree who is responsible for future maintenance.

If you really don’t feel able to have an initial conversation, or if you’ve already landed yourself in the middle of a red-hot boundary dispute, then that’s the time to call in a professional to act as intermediary with your neighbour, rather than pressing on and raising the temperature further. Then, if you reach agreement, you may have to declare the dispute, but you can say it was settled.

Once a defined boundary is filed at the Land Registry against each property a major point of dispute between neighbours is prevented saving costs, time and anxiety for all concerned.

If you would like to arrange free initial consultation with a member of our litigation team, please contact us on 01244 356 789 or email info@cullimoredutton.co.uk.

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

How to evict a commercial tenant

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If you are a landlord of a commercial property, you may find yourself in the circumstances where you need to evict a tenant and take back possession of your property.

This area of the law can be complicated – your best route forward will depend on your specific circumstances and the terms of any lease you have in place. In this article, I look at some of the most common reasons for evicting a commercial tenant and what you can do.

What is forfeiture in commercial property?
Forfeiture is the right of a landlord to regain possession of a property where the tenant has breached the terms of the lease. The right of forfeiture must be included in the lease. However, landlords must be careful to establish that a breach has arisen. If a lease is forfeited where the right to forfeit has not been established, the tenant may be able to bring a claim for wrongful forfeiture. There is currently a moratorium on forfeiture just for rent which expires on 25 March 2022.

Can I evict a tenant if they have not paid the rent?
In response to the Covid-19 pandemic, the rules around evicting commercial tenants for non-payment of rent have changed. To protect businesses forced to close during the pandemic, the Government imposed a moratorium on commercial landlords evicting tenants who were unable to pay their rent until March 2022. In addition, a new code of conduct came into effect on 9 November 2021 and applies to all commercial leases held by businesses with rent arrears caused by the impact of the pandemic. Landlords are encouraged to come to an agreement with tenants about rent arrears rather than begin eviction proceedings.

Regaining possession by forfeiture
If a commercial tenant has not paid rent for the premises, you may be able to regain possession of the property by forfeiture after judgement has been obtained for the debt or after 25 March 2022 depending on how and when the debt as incurred. However, the process can be complicated to understand, and it is essential that you do not take action which may jeopardise your position. We would recommend discussing your specific circumstances with a solicitor before exercising your rights.

Can I evict a tenant if they have breached the terms of their lease?
If your tenants have breached any terms of the lease, you are required to serve a 146 notice before you can take action to reclaim possession of the property. This notice will be served by your solicitor to all relevant parties which includes the tenant, any subtenants, and your mortgage provider. The notice will set out clearly the details of the breach as well as any requirement to take remedial action or to pay compensation.

If the tenant has breached the repair condition clause, you may be required to offer the tenant the opportunity to claim statutory protection. If the tenant decides to do so, they must make this known within 28 days of receiving the 146 notice. The consequence for landlords is that they must seek permission from the court before taking any further actions. This is not delayed until 25 March 2022 and can be relied on now.

If you would like to arrange free half hour consultation with a member of our litigation team, please contact us on 01244 356 789 or email info@cullimoredutton.co.uk.

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

Sarah Mansfield

Getting to the root of the problem in boundary disputes

/ , , Legal Director/ /by

Householders spending more time at home and in their gardens during the Covid-19 pandemic is fuelling a rise in boundary disputes as infrequent niggles have translated into nagging complaints, with overhanging branches, encroaching tree roots and towering hedges proving to be a major source of disagreement.

But when it comes to overhanging branches, and fruit falling into a neighbour’s garden, there’s not always a clear-cut answer, even where it poses a health threat.

Various protections may impact the right to trim back overhanging branches from a neighbour’s trees, even when they extend over a boundary. And where trees are in a conservation area, or are covered by a tree preservation order, known as a TPO, even the owner will require council consent to prune or fell them.

In one case being heard by the courts, a Surrey homeowner is claiming that an apple tree has made her a ‘prisoner in her own home’, arguing that when the fruit falls and decays it attracts wasps, and she is allergic to their sting. Her actions to cut back the tree without agreement have given rise to a long and bitter dispute, with legal costs now standing at £200,000 amid claims of trespass, harassment and obstruction.

In another, in Norfolk, a mother has been unable to convince the local authority to let her cut back an overhanging walnut tree, despite her daughter having a severe nut allergy. For mother Chantel Beck, the walnut tree poses the threat of anaphylactic shock for her six-year-old daughter Beau, and while she was granted permission to trim the tree back in 2018, when this lapsed and she had not taken action, her re-application was unsuccessful. The council said that the works could affect the health of the tree, and that they were considering protecting it with a TPO.

As well as overhanging branches, tree roots may also pose a problem for neighbour relations as trees which are allowed to grow unchecked, or too close to buildings, can damage foundations and cause subsidence.

Hedges can be equally divisive, particularly when it comes to the notoriously fast-growing leylandii. If a hedge, or a row of trees, grows more than 2m tall and affects enjoyment of a property, the owner can be asked to trim it back.

When a problem has been identified, such as hedge height, overhanging branches or problem roots, and a neighbour refuses to act, the next step is usually to ask the local authority to intervene, and legal action after that.  If tree roots are threatening foundations, then the tree owner could be liable to pay for any remedial works, but only once they have been put on notice to act.

It’s inevitable that more time spent at home will have seen more people looking at their environment and picking up on things which may have passed unnoticed before, but the best approach to boundary disputes is a restrained discussion to discuss the problem and if that doesn’t resolve the matter consider mediation before rushing to the courts. It’s all too easy to let these disputes escalate into a personal battle, which can have more impact on enjoyment of your property than the original problem. You still have to live alongside that neighbour, and nowadays you have to declare any dispute when you come to sell a property.

Even though you are allowed to trim branches or roots up to the property boundary, it’s still best to have a chat first. And if you live in a conservation area, or where trees are protected by preservation orders, then you need to speak to the council before you start pruning. If you don’t, you could find yourself facing legal action for damage to property, even if there is an obvious nuisance. If you don’t feel able to have that conversation, then call in a professional to act as intermediary with your neighbour, or with the local authority.

If you would like to arrange free half hour consultation with a member of our litigation team, please contact us on 01244 356 789 or email info@cullimoredutton.co.uk.

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.