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December 21, 2018
Housing disputes – when to launch a legal challenge?

Housing disputes – when to launch a legal challenge?

There’s a housing shortage. New homes need to be built. But what are your rights if a developer with planning permission to build 20 homes next door to you wants to build 30 instead? Should you make a legal challenge or use political pressure or organise a public campaign? Legal challenges are expensive and if you lose you can expect to pay the other side’s costs, as well as your own.

To decide whether to mount a legal challenge you need to understand which of your objections are strong and which are weak in law. Trimming the weak objections helps focus on the strong ones. For that you need expert advice.

Often inviting councillors to visit the site to see the issues for themselves is a practical solution. If you plan to make representations to the local planning authority how best can you make them? In writing or in person at a meeting? Or both? If you do go to a meeting, how can you best use the limited time you will have to persuade the planning committee?

The answers to these questions vary from case to case. Neighbours to a development site asked Paul Ashwell these questions recently and using his knowledge of the law and experience of the planning system, he helped them make a plan of action.  Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Property

November 29, 2018
Case synopsis – Planning objections

Case synopsis – Planning objections

How can you most effectively oppose a planning application that you fear will harm the peace and quiet of your home? Countryside residents were concerned by an application for an application for planning permission to provide hard standing pitches for travellers. They didn’t know which of the things they were worried about were valid planning objections. Paul Ashwell attended an urgent meeting of residents and advised them how best to put their concerns to the local planning authority. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell | Property

November 9, 2018
Neighbour disputes and land ownership – how to get copies of legal documents

Neighbour disputes and land ownership – how to get copies of legal documents

Neighbours can fall out over boundaries. Where was the original boundary? Was it straight? Has a fence or wall been replaced? Is there a hedge or trees on the boundary? Has the boundary moved? Is there a trespass? Restrictive covenants (legal restrictions on the use of land) are another problem. Can my neighbours build another house in their back garden? Can they run a business from home? Can I?

To understand your rights you will need to get the documents showing your land ownership, and your neighbour’s. Ownership of land is called “title”. If you have a mortgagee your bank or building society (your “mortgagee”) may have the title documents.

But whether they do or not a starting point is getting hold of the titles registered at the Land Registry. There are different registers. The property register identifies the property by name or description and location. The proprietorship register shows who the owner (“proprietor”) is. The charges register shows mortgages and restrictive covenants. Also there is the “filed plan” which identifies boundaries with a red line. It is easy and cheap to get copies of these. Just follow this step-by-step guide by Paul Ashwell.

  1. Go to the HM Land Registry website
  2. Enter property name and post code
  3. Click Search
  4. Select Buy Title register and Title plan
  5. Click Purchase
  6. Click Create Account link
  7. Click Agree [terms]
  8. Enter name details,  address details, contact details and Login details.
  9. Click Create Account
  10. Click on link in activation e-mail
  11. Return to Buy Documents page
  12. Click Checkout
  13. Select Payment Page
  14. Enter Card details and Cardholders details
  15. Click Make Payment
  16. Click Continue
  17. On Download documents Select documents and click
  18. Click Save
  19. Click View downloads
  20. Open title documents

Paul Ashwell offers expertise across the full range of commercial and property law, including probate and planning. He is recommended as a Band 1 practitioner by both Chambers & Partners and Legal 500. He lectures frequently on the development of law in his practice areas.

If you require the services of Paul Ashwell to help deal with your neighbour dispute, get in touch with the clerks in our central Brighton office who will be able to put you in contact with him.

Paul Ashwell | Property

June 15, 2018
Breach of covenant in property law – Legal advice: How do I take action?

Breach of covenant in property law – Legal advice: How do I take action?

Covenants are binding agreements or promises to do or not do something. Residential and commercial leases contain many covenants. Freehold property titles of both residential houses and commercial premises may also contain covenants.

What constitutes a breach of covenant?

A landlord might claim a breach of covenant if a tenant alters a flat or shop without permission, or sublets part, or uses it for something which is not allowed, or does not keep it in good repair. The landlord might claim an injunction that the tenant does what he agreed, or stops doing what the agreement forbids him to do. There might be a claim for damages as well. Or the landlord might claim that the breach is so serious that the tenant should lose the lease. A wise tenant, if he does not admit the breach and agree to put it right, should get legal advice quickly.

The most common arguments with freehold property are about breach of “restrictive” covenants. These restrict the use of land, e.g. residential only, or only 2 houses may be built, or an area of land cannot be built on. Who has the right to enforce the covenant is often complicated, something on which specialist legal advice is needed. A special court, the Lands Chamber of the Upper Tribunal, has the power to relax or release restrictive covenants which have been agreed.

Breach of covenant remedies.

If letters don’t solve the problem a claim will start with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide.

The usual remedies are a declaration declaring the legal rights, an injunction to permanently forbid the breach and/or and damages. The court sometimes, even though there is a breach, does not make an injunction to put it right but instead awards damages.

To instruct one of our team of experienced property barristers, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on who can best help you with your case. 

By Paul Ashwell | Property

May 15, 2018
How to take court action against trespass and/or nuisance. Process and potential remedies.

How to take court action against trespass and/or nuisance. Process and potential remedies.

There are two sorts of trespass. Trespass to land and trespass to the person. Here we are talking about trespass to land, which is unlawful entry on land which someone else owns by going onto it or putting something like a fence on it. There are two sorts of nuisance as well. Here we are looking at private nuisance, not public nuisance. This is unreasonable interference with someone else’s land, for example by noise, or smell or escaping water.

Process and potential remedies.

A claim begins with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide. The “defendant” then “acknowledges service” of the documents they are sent. They can admit the claim or, if they deny it, responded with a “Defence” which puts their case in detail. The case might reach trial in a year’s time. The usual remedies are an injunction to permanently forbid the trespass or nuisance and damages.

If there is urgency, for example because of a leaking pipe from the flat above or stench from rotting rubbish in summer, you can apply for an “interim” or temporary injunction to keep things as they were before until trial. You can apply for this, with a witness statement, when you file the Claim Form. There will then be a court hearing within days, or even within a day if there is danger to life or property.

To instruct one of our team of specialist property barristers, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on your next steps. 

By Paul Ashwell | Property

April 16, 2018
Neighbour disputes – timeline for a court application and how a barrister can help

Neighbour disputes – timeline for a court application and how a barrister can help

Most neighbour disputes are about boundaries, rights of way, trespass and restrictive covenants. They all start the same way with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this on their behalf. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide. The “defendant” then “acknowledges service” of the documents they are sent. They can admit the claim or, if they deny it, responded with a “Defence” which puts their case in detail.

Following this, perhaps a couple of months after the Claim Form is filed, there is a Case Management Conference at court where the judge decides what things each side needs to do and when to prepare the dispute for trial. You brief your barrister to represent you at that Conference. The Judge decides the various steps, exchanging relevant documents and witness statements, arranging expert evidence, and sets dates for each one. Typically those steps could take 6 months.

Then the case will be given a trial date, which depends on when a judge and a courtroom are available, and when the parties and their barristers and witnesses are all available. From start to trial usually takes not less than a year.

Urgent neighbour disputes.

If there is urgency, for example because the neighbour has blocked the vent of your boiler or has locked a gate so that you can’t get your car in or out, you can apply for an “interim” or temporary order. This is an injunction to keep things as they were before until trial. You can apply for this, with a witness statement, when you file the Claim Form. There will then be a court hearing within days, or even within a day if there is danger to life or property.

Our experienced property barristers are able to tackle the most challenging cases. To instruct one of our legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on who can best help you with your dispute. 

By Paul Ashwell | Property

February 15, 2018
Land ownership disputes: mediation vs court proceedings

Land ownership disputes: mediation vs court proceedings

Land ownership disputes usually happen for one of three reasons:

  1. First, the plans that a seller gives to a buyer are often out of date, do not show fixed things on the ground like gateposts, walls and manhole covers and are too small in scale. Plans filed at the Land Registry at part of an owner’s title usually only show “general boundaries” with thick lines which have a big margin of error.
  2. Second, the ground itself changes. Hedges and trees grow or are cut down, or a new fence or wall is built which cuts a corner or is wider than the original boundary feature.
  3. Third, a neighbour might claim adverse possession, by occupying your land for a long time – here the law is tricky. Disputes about boundaries often turn into claims of trespass by my climbing rose or by your overhanging gutter. Good neighbours become enemies. Their houses become impossible to sell.

A judge, when a claim reaches trial, will define a boundary with the help of expert evidence and it can be marked on the ground and shown on a large scale filed plan. But the costs of going to trial are far out of proportion to the value of the disputed strip of land, which may be only a few inches wide.

Mediation in land ownership disputes

Mediation is always the better choice because the agreement reached can do everything a judge can do, but also do things a judge can’t, such as agreeing a new boundary that is not straight but suits both neighbours – a small-scale land swap. Mediation is quicker, far less stressful and allows neighbours to put the dispute behind them faster. Once agreement is reached and carried out it means that there is no longer a dispute to put potential buyers off  if one neighbour wants to sell. And it is far cheaper.

To get in touch with a member of our Direct Access legal team to assist with your dispute, read our simple step-by-step guide, then fill in the online form for our clerks to advise you on your next steps and put you in touch with an experienced barrister or mediator. 

By Paul Ashwell | Property

July 24, 2017

Stuart Wright successfully represents HMO landlord

Stuart Wright successfully represented a HMO landlord in a civil action against him by a former tenant accusing him of harassment, unlawful eviction and failure to comply with the statutory deposit protection requirements.

Stuart Wright was instructed on a direct access basis to represent the landlord at the trial. Following successful cross-examination of the tenant by Mr Wright the claim was dismissed in its entirety, with the County Court Circuit Judge concluding that the tenant was an unsatisfactory witness and that his claim was not a genuine one.

Stuart Wright | Property

 

May 2, 2017

“Freemen-of-the-land” – Go Directly to Jail (Do Not Pass Go)!

Desperate times can sometimes call for desperate measures. It is therefore not difficult to see why the suggestion that you are not bound by legislation or commercial law may be attractive to someone who has mounting debt problems or is facing eviction from their home. This is essentially what is promised by various groups of people whose theories are all based around the ‘freemen of the land’ movement in North America.

The general claim is that there is a big state conspiracy – between the government, judges, civil servants, lawyers etc – to take away citizens ‘common law rights’. This all starts from the moment your parents registered your birth. Freemen see the birth certificate as a contractual document with the state signing over the legal title of the baby. The suggestion is that there is a distinction between you as a man or woman – John, of the Family Smith – and Mr John Smith who is the legal entity owned by the state.

The suggestion is that if you do not consent to being bound by the law then you will not be bound. This way official demands for payment of fines, to appear in court etc can simply be declined. By following various freeman rituals – e.g. asking the Judge if he or she is on their “oath” / refusing to enter the Court room unless the Judge agrees that your god given rights are intact / producing a birth certificate to be the respondent rather than the man/woman themselves – then the Court will have no jurisdiction over you and the Claim will be dismissed. It sounds like a wonderfully simple way to make all of your problems go away.

The problem is that it is, put simply, nonsense.

In the 2012 case of Meads v. Meads, a Canadian Judge forensically deconstructed and dismissed freemen-style arguments in a detailed 192 page judgment. This is a long read, but essential if you have any doubt that what the Freemen are peddling is anything other than nonsense.

The real problem is that not only will the Freemen arguments not magically make everything better – they may in fact land you in contempt of court – facing imprisonment or at the very least a substantial fine.

For example, in 2015 at Sandwell Magistrates’ Court, an uninsured driver was sentenced to 14 days imprisonment for contempt of court after claiming to be a Freeman-of-the-Land and therefore outside of the jurisdiction of the Court.

Unfortunately, there are no magic cures or silver bullets when it comes to legal problems. There is no substitute for taking early legal advice from a trained professional and being represented by someone who can fight your corner in accordance with the legitimate laws of this land.

Further reading:

Meads v Meads 2012 ABQB 571 (CanLII) https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html

https://ukhumanrightsblog.com/2012/09/30/freemen-of-the-land-are-parasites-peddling-pseudolegal-nonsense-canadian-judge-fights-back/

https://ukhumanrightsblog.com/2011/11/15/freemen-of-the-dangerous-nonsense/

http://www.birminghammail.co.uk/news/midlands-news/freeman-land-driver-jailed-contempt-10253089

http://www.bbc.co.uk/news/uk-england-merseyside-12668444

http://www.bbc.co.uk/news/magazine-36499750

http://www.eveningnews24.co.uk/news/crime/norfolk-tax-dodger-arrested-after-writing-to-queen-1-745681

April 27, 2017

How to get Title registers and Title plans from the Land Registry

 

In a dispute with a neighbour about a boundary or a right of way you need to look at up-to-date “titles” of your properties. These are the official records of ownership held by the Land Registry. How do you get them? It is easy, as Paul Ashwell explains in this step-by-step guide.

1. Go to the Land Registry via this link

2. Enter property name and post code

3. Click Search

4. Select Buy Title register and Title plan

5. Click Purchase

6. Click Create Account link

7. Click Agree [terms]

8. Enter name details,  address details, contact details and Login details.

9. Click Create Account

10. Click on link in activation e-mail

11. Return to Buy Documents page

12. Click Checkout

13. Select Payment Page

14. Enter Card details and Cardholders details

15. Click Make Payment

16. Click Continue

17. On Download documents Select documents and click

18 Click Save

19. Click View downloads

20. Open title documents

 

Paul Ashwell | Property