Landlord, tenant and building disputes

Property disputes can be both disruptive and time-consuming.  We can assist anyone involved in disputes over property, whether commercial or residential.  Our considerable experience enables us to advise clients, both landlords and tenants, on the most practical solution of resolving a dispute.  Alternative dispute resolution is considered where appropriate through mediation and negotiation to help avoid the need for potentially expensive court or tribunal action.

If litigation cannot be avoided, we are able to issue proceedings, even in complex cases, at very short notice.

We can assist with all types of commercial and residential property matters, including but not limited to some of the following: 

Building disputes

We are able to assist clients such as developers, contractors and sub-contractors as well as members of the public who have entered into a construction/building contract.  These disputes can be costly and time consuming, even when there is a proper contract in place.  When there is no formal contract, matters can be even more complex.

We will explore with you alternative dispute resolution as appropriate, depending on the value and nature of the dispute, by mediation and negotiation, arbitration or adjudication in order to meet the client’s needs and to avoid, if possible, the need for expensive Court action.

However, if Court action cannot be avoided, we are able to issue proceedings in the appropriate Business and Property Courts.  We are able to offer practical solutions to builders and customers in residential building disputes and small commercial construction disputes.

For more information on disputes arising out of building contracts, please click here.

If you are a builder providing services to consumers, you should be aware of recent changes in the law on consumer rights. Please click here to find out more.

Business lease renewals

Many business tenancies have statutory protection under Part I of the Landlord and Tenant Act 1954 if they have not contracted out of the Act by agreement.  Where it applies, the 1954 Act affords security of tenure to business tenants so that a lease of commercial premises does not come to an end on the expiry of the contractual term but continues until terminated in accordance with the provisions of the 1954 Act.

The terms of business lease renewals are usually negotiated between the landlord and tenant following the service of a Landlord’s section 25 Notice or a Tenant’s section 26 Notice.  Occasionally, as a landlord, you may seek to rely on fairly limited statutory grounds to challenge a tenant’s request for a new business tenancy.  The most usual grounds relied upon are that you intend to develop the building or intend to reoccupy the premises.

We regularly advise both landlords and tenants on the strategic time for serving a statutory notice. If the decision is taken by the tenant to vacate the premises, we can advise on negotiating terms for new premises and, where appropriate, dilapidations.

Rent and service charge recovery for commercial properties

Under the terms of a business lease, rent is reserved and payable on a periodic basis from your tenant.  This can either be monthly or payable on the ‘usual quarter days’ i.e. 25 March (Lady Day), 24 June (Midsummer Day), 29 September (Michaelmas) and 25 December (Christmas).

Where rent is not paid, as the landlord, you may be able to forfeit the lease or seek to recover the arrears as a debt.  Under an ‘old’ lease which has subsequently been assigned (i.e. the lease has been transferred to a third party by the tenant), it may also be possible to pursue the original tenant, any former assignee that has given a direct covenant to the landlord, guarantors or sureties of the original tenant or former assignee that may still be liable.  Under a ‘new’ lease, if the assignor of the lease to the current tenant entered into an authorised guarantee agreement (AGA) they may also be liable for the current tenant’s rent arrears, as well as potentially any guarantor of such an assignor.

As the landlord, you must comply with section 17 of the Landlord and Tenant (Covenants) Act 1995 and serve the prescribed notice within six months’ of the sum falling due.  If the original tenant pays all the arrears and interest, they may have a right of indemnity from the assignee, or in certain circumstances, ask you for an overriding lease.

If you are seeking payment from a commercial tenant, we can advise you on the appropriate course of action.

Rent and service charge recovery for residential properties

Tenants occupying under an Assured Shorthold Tenancy Agreement (or in some cases Assured or Rent Act tenancies) will be required to pay rent on a periodic basis, usually weekly or monthly.  If your tenant has not made these payments, you may be able to recover the rent arrears either through possession proceedings or as a debt.

Residential leaseholders will usually have to pay ground rent and service charges as defined in their lease.  Where ground rent is not paid to you by the tenant, you may be able to forfeit the lease or seek to recover the arrears as a debt.  Service charges are made in addition to ground rent to cover services, repairs, maintenance, insurance, improvements or costs of management and the amount may vary according to the costs incurred or to be incurred.  You must ensure these service charges are reasonable, as well as the administration fees; if they are considered to be unreasonable in amount or unreasonably incurred, your tenant may challenge these costs in the First-tier Tribunal (Property Chamber).

As a landlord you may, from time to time, need to carry out ‘works on a building or other premises’ – that is works of repair, maintenance or improvement; or enter into qualifying long-term agreements with a wholly independent organisation or contractor for a period of more than 12 months.  Detailed regulations were produced under section 20 of the Landlord and Tenant Act 1985 (as amended by s.151 of the Commonhold and Leasehold Reform Act 2002) which set out the precise procedures you must follow, including sending consultation notices both to individual leaseholders and to any recognised tenants association.  This must be done before the works begin.

If you fail to comply with the section 20 statutory procedure and do not consult with the leaseholders who are required to contribute to the cost of the works under the terms of their leases, you may only be able to recover £250 of the costs from each leaseholder.

If you are seeking payment of rent, ground rent or service charges from residential tenants, we can help advise on the most appropriate course of action for you.

Advice for tenants: dilapidations and other breaches of covenant

The term 'dilapidations' refers to breaches of lease covenants that relate to the condition of the property, and the process of remedying those breaches.  Dilapidations disputes can end in Court so it is important that as a tenant you protect your position when entering into a new business lease, in the event that your landlord commences proceedings.

If you are vacating the premises at the end of the contractual term or when exercising a break notice, you should ensure you have complied with all your obligations under your Lease and yield up the premises in the appropriate condition.  You should consider any licences for alterations and whether your landlord requires them to reinstate the alterations that have been made.  If the dilapidations works are not completed before the end of the lease term, then the landlord can claim damages from you to recompense them for your breach of covenant and the cost of those works, including compensation for loss of rent and service charges.

In this situation, your landlord will usually serve you with a Schedule of Dilapidations and a Quantified Demand.  Your landlord will likely endorse the Schedule to confirm that it is reasonable and reflects their intentions for the building.  You should respond to the Schedule of Dilapidations and/or Quantified Demand within about 56 days of receipt.  The Court’s Dilapidations Protocol states that both you and your landlord should consider alternative dispute resolution (ADR) in dilapidations cases.

If proceedings are issued, you may be advised to make offers to settle at various stages and should consider such advice carefully.  Early advice should be obtained from a solicitor and surveyor, and this is an area we can advise you on.

Advice for landlords: forfeiture and applications for relief

Forfeiture brings the lease to an end and in order to forfeit the lease, the following must be satisfied:

  • There must be an express provision within the lease providing for forfeiture on the tenant’s breach of covenant
  • The tenant must have breached the lease and triggered the right to forfeit
  • The landlord must have taken the appropriate procedural steps
  • The landlord must not have waived the right to forfeit
  • The tenant must either fail to apply for or be refused relief from forfeiture

If you are seeking to forfeit a lease for non-payment of rent from your tenant, you may be able to enter the premises by peaceful re-entry and changing the locks, more often than not in the early hours of the morning.  Caution should be exercised when effecting peaceable re-entry and should never be used where any part of the property is residential.

For all other breaches of covenant, you must serve a section 146 notice before forfeiture can take place and possession proceedings will need to be issued.  The Law of Property Act 1925 provides that a s.146 notice must specify the breach complained of and require your tenant to remedy the breach within a reasonable time (if it is capable of being remedied).  Your tenant is also required to pay you compensation for the breach.  There are additional requirements in certain disrepair cases, which we can advise on.

Forfeiture may not be the only remedy available to you.  We can advise on other options including damages, entry to the premises to carry out the work and recovery of the cost as a debt; and specific performance.

Residential possession actions, including rent arrears and mortgaged property for landlords

Whether you simply want to recover your property because you want to live in it yourself, you want to sell it or for any other reason, or where your tenant is not paying the rent or complying with other terms of the tenancy, we can advise all types of landlords on their options, how to recover possession and tell you how long it will take.  We offer fixed fees so you know how much it will cost and where possible, we will seek to recover your legal costs from the tenant.

Residential possession actions, including rent arrears and mortgaged property for tenants

Whether you have received a section 21 or section 8 notice, we can advise on its validity and suggest ways on how you might want to defend subsequent possession proceedings.  If you have paid a deposit and your landlord has not protected it, or you think the landlord has issued a notice to quit on you as a retaliation for you reporting a problem with the property, we team can advise on your options.

For more details on section 21 or section 8 notices, click here.

Leasehold enfranchisement

Whether you wish to extend the term of your long residential lease, or there are two or more flats in the building and you wish to purchase the freehold together, we can advise on the procedure; more details can be found on this page.

Disputes with neighbours over rights of way and boundaries 

An easement is a right benefiting one parcel of land (known as the dominant tenement) that permits the rightful users (not necessarily just the owner) of that land to access a neighbouring parcel of land (known as the servient tenement).  There are several examples of the most commonly used and well known easements:

  • one that allows the underground services (water, drainage, gas, electricity, telephone and TV cables, etc) of one property to pass beneath or over the land of one or more neighbouring properties
  • the private right of way or a shared driveway

Other easements may include a right to light, right of support, right to access a neighbour’s land to carry out building maintenance or utility repairs etc.

An easement may be created in a number of ways.  Usually, this is by express grant.  A Deed of Grant sets out the terms of the easement, or the grant may take the form of a clause in a conveyancing deed or a transfer deed.

An easement may be created of necessity or by prescription.  Of necessity means it may have been created over a road, track or path leading to it if that route is the only means of access between the public highway and that parcel of land provided it meets certain criteria.  An easement by prescription happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the (potentially servient) landowner's permission for a period of at least 20 years.

An easement is very difficult to extinguish and should be thought of as existing forever.  It may be possible to vary the right of way along a new route.  This has to be negotiated with the owner(s) of the dominant tenement(s) before a Deed of Variation can be drawn up by a solicitor.

Difficulties can arise where the express Deed of Grant does not provide for the repair of the private right of way.  If the right of way falls into disrepair, then the user may repair the way but must be careful not to improve the way as it is not his land to develop.

If a dispute arises over a private right of way, the first thing to do is to check your Land Registry property title and/or conveyancing deeds to confirm that there is an easement and to check the terms of your right of way.  With luck (but this is not always the case) there will be an accurate description of the extent, shape and form of the right of way, and a statement of who is responsible for its maintenance.

Next, consider whether your rights are being infringed and the amount of inconvenience you are suffering.  Try talking to your neighbour to find out what their point of view is and then see if you can negotiate a settlement that accommodates both your needs.

If this fails, or if your neighbour is unapproachable in the first instance, and you need professional help, then consider your requirements before seeking the appropriate professional help:

  • If you need someone to tell you where and how wide the right of way is, you need a chartered land surveyor
  • If you need someone to interpret the legal terms of the grant of easement, or you need a declaration of your right of way and an order preventing your neighbour obstructing you from using it or an injunction to stop a neighbour trespassing on your land, you need a solicitor, and this is where we can help
  • Disputes with neighbours over party walls

The Party Wall etc. Act 1996 provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. A building owner proposing to start work covered by the Act must give adjoining owners notice of their intentions in the way set down in the Act. Adjoining owners can agree or disagree with what is proposed. Where they disagree, the Act provides a mechanism for resolving disputes, and we can advise either party as to the legal obligations and technicalities of the dispute.

It is important to note that the Act is separate from obtaining planning permission or building regulations approval.

The main types of party walls are:

  • a wall that stands on the lands of two (or more) owners and forms part of a building - this wall can be part of one building only or separate buildings belonging to different owners
  • a wall that stands on the lands of two owners but does not form part of a building, such as a garden wall but not including timber fences
  • a wall that is on one owner’s land but is used by two (or more) owners to separate their buildings

The Department for Communities and Local Government has produced an explanatory booklet on the Party Wall Act, which can be found here.

You will usually only need to use a Party Wall surveyor to advise on a party wall dispute, however if you do require legal advice, you can contact us on the details provided.

Tenancy disputes

Whether you are a landlord or a tenant, we can help with disputes between you and can often make the relationship an easier one.  Where we cannot, or where the issues have gone beyond resolution, we can help landlords obtain possession of their property or seek to enforce the landlord and tenant covenants in the tenancy agreement against the other party.

If you are a landlord you can find more information about the Tenancy Deposit Scheme and your responsibilities as a landlord here.

We can offer advice on the following areas of dispute between landlords and tenants:

  • Assured Shorthold Tenancy agreements
  • Protected and Rent Act tenancies
  • Repossessions
  • Rent arrears
  • Rent Deposit Schemes
  • Anti-social behaviour, nuisance and noise
  • Repair
  • Injunctions
  • Contracts with managing agents

From 1 December 2016, a landlord or agent will have committed a criminal offence where they know or have ‘reasonable cause to believe’ that any property they are letting is occupied by someone who is disqualified from residing in the UK, regardless of when the tenancy was granted. For more information click here.

We do not undertake publicly funded housing matters.

Village green applications

Village green applications can have catastrophic consequences for land owners or developers wanting to develop land. Recent court decisions appear to favour those applying to register land as town or village greens. In late 2017, the court allowed an applicant multiple opportunities to correct a defective application, despite the relevant deadline for making the application having long passed.

An application to register land as a town or village green (TVG) can be made where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continue to do so at the time of the application.

In a small community, such applications can create deep divisions. It can slow down any development and if successful, stop the development altogether forcing developers to incur substantial losses. It can also significantly affect the resale value of the land.

If you are a developer and have encountered problems such as these, we can offer you advise on finding a remedy.

Recovery of land or premises from unlawful occupier

Whether it is an individual or a group of travellers who have entered onto your land without permission, or had permission to enter and then refused to leave when asked to do so, we can act promptly and issue trespass proceedings, often on the same day that you speak to us.

Whether it is commercial or residential land, we will speak with the local county courts and obtain a hearing of your possession claim often within a few days of issuing your claim. From preparing your possession claim against trespassers through to attending the possession hearing and working with the Court Bailiff, we will keep you advised throughout and let you know how much it will all cost.

Adverse possession or “squatters' rights”

Adverse possession, colloquially described as “squatters rights” is the term used to describe a claim to ownership of land arising not from a deed in favour of the applicant but from actual occupation of the land. Obviously it would not be fair or practical to allow a person to claim ownership merely by entering onto the land and so strict rules have been developed in an attempt to balance the interests of land owners with the interests of the general public.

In order to make a successful claim for adverse possession, the applicant must satisfy certain requirements, including:

  • having been in factual possession of the land for the requisite limitation period.  Where the land is registered at Land Registry, a claim can be made after ten years’ of occupation though the registered proprietor will be notified and can usually defeat the claim by objecting**.  Where the land is unregistered, the right to claim will arise after 12 years’ of uninterrupted occupation
  • have the necessary intention to possess
  • been in possession without the paper title owner’s consent (and been so for the requisite limitation period)

** where the right to claim possession arose prior to the commencement of the Land Registration Act 2002 (on 13 October 2003), the applicant can claim under either the old or the new regime.

There are circumstances in which a longer period is needed:

  • Crown land – 30 years
  • Crown foreshore – 60 years
  • Land belonging to a dissolved company
  • Bishops, vicars and certain other officers of the Church of England (known as spiritual corporations sole)

Applications are made in the first instance to the Land Registry.  The applicant’s statement of truth should explain the facts of the occupation of the land claimed.  It should include the date on which occupation commenced, detail any breaks in their occupation and an explanation of them.  It should explain the steps taken to occupy the land and what steps have been taken to demonstration ‘to the world at large’ that the applicant considers the land to be his own (eg erecting fences, carrying out improvements, changing the locks to any buildings on the land etc).

The statement of truth may be supported by statements from others with knowledge of the occupation or from someone who was occupying the land previously to make up the full 10 or 12 years’ necessary to be successful.

On receipt, the Land Registry will usually inspect the land and it will serve notice on anyone it knows who has an interest in the land.  If no objections are received, and the Land Registry is satisfied with the evidence, it will complete the application for registration.  Where an objection is received, the Land Registry will usually refer the matter to the Land Registry Adjudicator.

 

For any advice on the potential disputes that can arise as detailed above, you can contact:

Helen Porter on 023 8071 7425 or by email at helenporter@warnergoodman.co.uk 
Daniel Coleman 023 8071 7487 or by email danielcoleman@warnergoodman.co.uk

For general Litigation or Dispute Resolution enquiries, contact Hayley Steer on 023 8071 7412 or email hayleysteer@warnergoodman.co.uk

To speak to one of our experts please call us

Kept in touch all the time, everything dealt with in good time.