Boundary Disputes arise between owners of neighbouring properties. Ordinarily such disputes arise when two parties disagree as to where the true extent of the boundary lies.

Disputes can often be triggered when one party proceeds with erecting a fence or wall believing it is on the legal normal erection boundary and the other party disagrees.

How do I know where my boundary line is?

Often parties will rely on the Land Registry plan as the document that determines a boundary line. The Land Registry plan does not determine the boundary line and the parties should divert their attention to examining their pre-registration deeds of their respective properties.

Such deeds should contain a document which outlines a transfer of the piece of land or in the alternative a clear and detailed plan with description.

It is suggested that to avoid matters escalating unnecessarily full transparency is provided between the parties so each party can inspect the neighbours’ deeds also. This can be difficult particularly if relations between the parties have deteriorated because of the dispute.

What if on inspection my neighbour and I do not agree?

If the boundary line cannot be agreed then it is suggested that both parties, with a view of controlling fees, jointly instruct a chartered land surveyor. The instructed surveyor will inspect the relevant deeds and if necessary visit the said properties to determine the boundary.

The last thing anyone wants when they are at home is a dispute on their doorstep. Disputes of this nature can strain the relationships between the neighbouring parties whilst they still line side by side. It can also transform a relaxing home into a stressful place with no rest. Therefore, careful thought and planning must be put into finding a resolution to avoid such a strain and more importantly prevent costs spiralling out of control. Legal costs have been noted by many Judges to have often outweighed the value of the land.

Here at Franklins we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. Contact the Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Why would a co-owner want to sell?

There are a number of reasons why this happen and these are just a few examples:

  1. To have your named removed from the mortgage and legal title;
  2. An application made by a family member such as a parent, sibling or grandparent who wish to receive their financial interest in the property;
  3. To force the sale of a property which you and the co-owner inherited from a deceased’s estate;
  4. When an ex-partner refuses to leave and you wish to occupy your former family home alone.

How do I go about forcing a co-owner to sell?

The Trusts of Land and Appointment of Trustees Act 1996 is an Act of Parliament which is otherwise known as TOLATA. This Act gives the Court powers to resolve disputes regarding the ownership of property and land and is there to help a joint owner sell a property when their co-owner does not want to.

If an individual wishes to force a sale of a property, there are three main types of application under TOLATA which can be presented to Court:

  1. An application to the Court requesting an order of the sale of the property to enable one co-owner to receive their financial interest in the form of net sale proceeds;
  2. A request that the Court decides which co-owner is entitled to occupy the property;
  3. A request that the Court decides the extent and nature of ownership if the property is owned by two or more individuals.

Is issuing a claim at Court the first step?

No. As with any disputes, there is a process and the Court expect the parties to resolve matters, if possible, without utilising the Court’s resources.

Before any claim is issued a Pre-Action Protocol Letter of Claim will need to be sent to the co-owner outlining the claim and what is sought. 

Each party is under a duty to ensure that they negotiate and it is always beneficial and advisable for parties to settle disputes by means of Alternative Dispute Resolution to ensure matters are dealt with swiftly and cost effectively.

I know the co-owner won’t agree, so what happens when they don’t respond?

If, after sending the Pre-Action Protocol letter no response or agreement is reached, then the applicant will usually issue a claim at Court under Part 8 of the Civil Procedure Rules 1998. In some circumstances, it may be appropriate to use a different process and legal advice can help guide you to the most appropriate choice.

In determining whether to make an order under TOLATA the Court will consider a number of factors.  This includes the intentions of the parties and, in particular, the reason why they purchased the property and for what purpose.  The Court will also consider if there are any occupants under the age of 18 in the property and any interests in the property such as whether there is a mortgage lender. 

If you require legal advice or assistance in enforcing the sale of a property or on TOLATA then please do not hesitate to contact a member of the Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

We appreciate that when you first approach a litigation solicitor for advice it can be daunting and difficult to know how much to tell them in order that they can confirm if they can help and advise you further.

Photo by Karolina Grabowska from Pexels

During your first call to us, we shall ask the questions that are pertinent to your circumstances in order to obtain the initial information needed. There is no need to worry as our team will guide you through the call and help identify the key information and documents that are needed.

If you are approaching us by email, the following are tips on the type of information that can be required:-

It is important that you retain all information (documents, communication etc.) whether electronic or otherwise when you enter into a dispute. We shall also help by providing you with an Evidence Preservation Notice as there is a duty upon you to ensure all information associated with your dispute is preserved.

We are here to help and guide you through the process to a resolution. If you are unsure, call the Team on 01908 660966 / 01604 828282 or email Litigation@franklins-sols.co.uk and we are happy to guide you as to the next steps.

Mediation MeetingA mediation is a great opportunity to resolve a dispute quickly and cost effectively. It is important to be as prepared as you can to make the most of the time available. Considering that a court case can take not months but years to reach trial, the advantage of a resolution within a day is hugely beneficial.

There are some practical tips for preparing for a mediation:-

  1. Ensure you have all the information you need to make decisions on the day.

This could be taking legal advice, obtaining financial information, securing expert advice from, for example, an accountant, finding witnesses and obtaining evidence to support your case.

  1. Remove as many distractions as possible on the day.

This is your opportunity to find a solution.  So whether it is putting on your out of office, arranging child care, re-arranging meetings and commitments for the entire day and evening, paying for a full day’s parking and checking when the car park closes, ensuring that there are no planned internet interruptions if mediating on-line, reduce anything that may impact on bandwidth performance. The list goes on. All of these have the potential to distract you from the matters in hand and are best prepared for in advance to ensure you can commit your attention to finding a solution.

  1. Know your best and worst alternatives to a settlement at mediation.

During the mediation, you may be asked at some point to consider a settlement and compare it to your best and worst alternatives. This could be how long the case may continue if no settlement is reached, additional costs to take a case to trial, an inability to complete a project or future plans due to cash flow when dealing with the dispute in court and many more – all of these are to provide space for you to reflect upon the value of a settlement to you on the day of the mediation.

  1. Understand the strengths and weaknesses of your case.

Risk assessing your position is vital. However good it seems, it is rare that a barrister will advise a client that they have over a 70% chance of success. Court cases can be unpredictable and for the very reason you have a dispute, someone has a different viewpoint and can present their thoughts on the position which may be so far removed from your own that you find it hard to believe how they reached their conclusions. But, they did and therefore it is helpful balance your position by weighing up the pros and cons of your own case.

  1. Think through what your objectives are in the negotiation.

Mediation is a facilitated negotiation. It may begin with the parties setting out their legal entitlements but it moves to a commercial settlement and what the parties need and are prepared to do in order to get a deal done. Very often the judgement that would be available in the courtroom, is not the most practical for either party in practice. Thinking outside the box, being creative and looking beyond the immediate issues may open up different and new options that could encourage a settlement. Try therefore to take a step back and consider what other options could be available.

  1. Take care of yourself.

Mediation can be a long and intense day. Making sure that you have a good night’s sleep beforehand, if travelling to a venue for the mediation then factor in additional time so you are not rushed. Take with you anything you need by way of refreshments for the day if these are not being provided and there will also be lengthy periods when you are potentially on your own so manage this time well; take a break and move around when you can.

The Mediator is there to provide you with the best possible chance of settling your dispute but ultimately it is your decision. If you are attending the mediation with the desire to settle the issues, being prepared, open minded and having everything you need to hand is key.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Entering into a franchise agreement is an exciting time. The promise of what is ahead with commercial returns for both the franchisor and franchisee leading both parties to enter into the relationship on an understandably enthusiastic basis. 

From such a positive start, the dynamics can change as the business relationship unfolds with disputes surrounding the following areas high on the agenda:-

The Franchise Agreement

As with any business there are always risks. Taking on a franchise is like any other business and whilst it may be of benefit to have a brand that is already established, there can still be challenges. 

Franchising itself is not regulated in the UK and as a result there are no regulations to guide both parties, meaning that any company can set up as a franchisor.

The most common type of franchise dispute is misrepresentation. This arises when the franchisee alleges that the franchisor was misleading with information or documentation provided to encourage them to enter into the franchise agreement. 

The franchisee has to show that in entering into the franchise agreement they relied upon statements of fact presented to them by the franchisor which later proved to be untrue or could not have been reasonably held.  Perhaps understandably in this category, those claims tend to focus on financial projections relating to the financial returns of operating the business and its running costs and expenses.

The franchise agreement itself can be drafted in a way to favour the franchisor with many obligations falling on the franchisee including a personal liability if the franchisee does not deliver on certain performance or financial requirements. Ensuring that the franchise agreement has been properly drafted and that the parties were aware of their own rights and obligations is critical, as it will enable both parties to operate their part of the agreement effectively and efficiently.

Preparing well in advance for managing the franchisee will assist the franchisor to support this new extension of its existing business.  The program of engaging with the start-up franchise from the outset through to being up and running is important and can head off any potential areas of conflict. This means ensuring that the right levels of support and training are in place.

Handling disputes

The majority of franchise agreements will include a clause as to how disputes between the parties should be handled. This is the first point of call if communication between the parties has broken down.

Mediation can be part of that process, or other facilitated face-to-face meetings, if both parties are represented by solicitors and their direct communications have been unsuccessful. Arbitration or litigation can lead to an assessed outcome for the parties however this can be lengthy and expensive.  Many court cases can take up to 2 years if they exceed small claims limit of £10,000 which makes mediation and its ability to resolve a dispute within a day at much less cost an attractive alternative.

Franklins Solicitors LLP have assisted many franchises in the following areas and just some examples are set out below:-

Following an assessment of the legal position, we discuss with you the options and then best strategic approach in your dispute.

If you have the franchise dispute or have issues with a franchise oral franchisee relationship, please our Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Disputes happen and how the initial stages of the dispute are handled can impact upon how quickly and cost effectively you can resolve the problem.

The following can make all the difference:-

Tip 1) Get the facts – not opinion – the facts

It is normal when a dispute arise for those involved to tell you why it is not their fault and provide an opinion as opposed to setting out factually what has happened. Many cases have gone to court based upon opinion and only later has it come to light that witnesses were expressing their point of view based upon what they thought happened and not what actually took place.

The first thing therefore is to get all of the facts and make sure that they are not based upon opinion. This might include reviewing emails, drawing up a chronology, speaking to others to cross reference what you have been told and, in some cases, even checking CCTV footage depending upon the trigger event.

It is far better to know the full facts even if uncomfortable and difficult to hear than to proceed on completely the wrong footing.

Setting out a chronology can make it easier for everyone to follow and will also save time later if the matter proceeds. It also makes it easier to incorporate the legal position at each of the various stages of your chronology which can be useful in contract disputes.

Tip 2) Know your legal position

In an ideal world there should be a contract and, if there is, locate the most recent contract which governs your business relationship with the other party. Read it and ensure that you understand the content and how it impacts upon your circumstances.

It is useful to understand the strengths and weaknesses of your position and also whether there are any clauses which outline how the parties must proceed in the event of a dispute or breach of contract.

If you do not have a contract, there are legal principles that govern most situations. You would be best advised to seek advice about your legal position based upon the facts.

Tip 3) Understand the impact

Having obtained the facts and reviewed your legal position, consider what the implications are for you. Again, sometimes this might be seen as fairly obvious. The impact could however be far wider than initially thought and understanding these direct and indirect consequences could significantly influence your next steps.

The impact might be financial losses, reputational damage, loss of time, delays with other plans, and loss of other contracts or even a review of staffing levels. This assessment will help you understand what the actual impact of the dispute has so you can decide your best course of action.

Tip 4) Don’t ignore the problem

Rarely do problems just go away. They tend to get bigger. Acting quickly and being proactive is the far better course of action. Ignoring correspondence, calls and communication is almost certainly going to provoke a solicitors letter and if the dispute is nipped in the bud early, you may be able to negotiate without legal intervention or agree to go to mediation and avoid court costs altogether.

Tip 5) Avoid emotive communications

Tensions can run high and personal reputations may be on the line. Responding in an emotional way to what has happened though can incite others to take a more aggressive approach when in fact working together to get a solution could save time and money for all concerned. This is not easy. No-one wants to be bullied or pushed into a resolution and with often so much at stake, it can be difficult not for that frustration to come out in the communication. It might be a challenge but keep it as business like as you can.

Tip 6) Consider alternative forms of dispute resolution

If you are unable to agree a way forward, finding an independent accredited mediator to assist both parties may be an alternative to both parties incurring the costs of instructing solicitors. Your solicitors will in any event discuss mediation with you as the Court now recommends alternative forms of resolution to the parties rather than proceeding to court. Rather than going to court and then being referred to mediation, avoid the court costs and invite the other side to your dispute to mediate first of all. This may already be included within your contract.

Tip 7) Consider whether you need legal advice

All too often businesses come to solicitors late in the day and at a time when admissions and comments in open correspondence have been made to try and resolve a situation only to create further problems.

Solicitors will work with their clients to help them to manage the ongoing relationship. The business is protected and also can make informed strategic decisions throughout. There may be good commercial reasons for making a certain decision and yet this could pose some legal risk. Only when that risk is known can an informed business decision take place.

If you would like to talk with one of our Dispute Resolution Solicitors, you can do by filling in the contact form on our Contact Us page.

The without prejudice protection offered by mediation is often one of the main attractions to this means of alternative dispute resolution.

What is said cannot be used in a later trial or court hearing as it is protected under the Mediation Agreement which reinforces this protected status in the form of a signed contract.

However, there are exceptions even to this Agreement.

In the case of Berkeley Square Holderings & Ors v Lancer Property Asset Management Ltd & Ors [2020] EWHC 1015 (Ch) the Judge considered the circumstances in which mediation papers could be relied upon at a later trial. He summarised the applicable occasions as follows:-

  1. If there is a claim of fraud, misrepresentation or undue influence;
  2. Where there is a dispute over whether the negotiations were finalised in a concluded settlement;
  3. Where the privilege is being used as a cover for perjury, blackmail or another form of unambiguous impropriety.
  4. Where, even though there has not been a settlement, an estoppel (or promise/agreement) has been said to arise out of something said during the mediation
  5. Where a delay could be explained away by the negotiations;
  6. Where it is relevant to the interpretation of the settlement agreement to admit objective facts referred to in the negotiations;
  7. Where there is no dispute as to the truth or otherwise of a statement made during the negotiations and admitting the evidence of such a statement is necessary in order to ensure that an issue raised by a party is fairly decided before with court with no adverse effect on the property to which the other parties are entitled. This specifically covers that not to include the statement could result in an unfair trial taking place.

These circumstances are therefore limited and are specific in their nature. The majority of mediations pass without reference or need for them to be relied upon and mediation remains one of the most effective alternative means of resolving a dispute.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

There are a number of options available to a commercial Landlord when their tenant falls into arrears, the most effective of which include the following:

Commercial Rent Arrears Recovery

The Commercial Rent Arrears Recovery process, or “CRAR”, entitles a commercial Landlord to seize possessions belonging to their Tenant in order to satisfy any rent arrears owed.

This option is available providing over 7 days of rent is owed and a formal 7 day notice has been served upon the Tenant. Further notices will also need to be served as and when the process progresses, such as if re-entry is required.

Whilst the threat of possessions being seized could be a quick and effective in flushing out payment from the tenant, pursuing this option does prevent a Landlord pursuing their rights of forfeiture and in some circumstances, receipt of the Landlord’s notice could give rise to the Tenant removing possessions from the premises within the 7 day period to avoid seizure. Thought should therefore be given to the risks and implications of pursuing this option before any notices are served.

Forfeiture

If a commercial Tenant has breached the covenants contained within the Lease, the Landlord has the right to peaceably re-enter the property. This right is known as forfeiture.

The provisions for forfeiture will usually be outlined within the terms of the Lease and if these have been satisfied, the Landlord should be entitled to regain possession of the property by entering and changing the locks peaceably. The word ‘peaceably’ is of paramount importance when exercising your right of forfeiture and you should ensure that nobody is occupying the property at that time. To reduce the risk of this occurring, many Landlords choose to re-enter the property outside of usual working hours.

Landlords can be prevented from exercising their right to forfeit the Lease by waiving their rights to do so in a number of ways, such as accepting rent or chasing the tenant for rental payments. Care should therefore be given to avoid this prior to forfeiture and often it is prudent to obtain legal advice before proceeding down this route.

Statutory Demands

A Statutory Demand is a formal and final demand for payment that can be served upon a Tenant, providing them with a three week period within which the debt is to be paid.

If the Tenant fails to settle the sums owed within that three month period, they could be deemed as unable to pay their debts and as a result, a Bankruptcy Petition or Winding-Up Petition can be presented in Court.  

The minimum debt amount that must be owed before a Statutory Demand can be served is £750 for a company debtor and £5000 for an individual debtor.

Because the implications of not satisfying the demand are so severe, the threat of bankruptcy or winding-up proceedings can prompt debtors to pay or offer a payment plan. Further, there is no Court fee payable upon service of the demand and they can be prepared relatively quickly. This is often therefore a quick and effective way of obtaining payment from a commercial Tenant if they have the means to pay.

Summary

The most appropriate means of recovering commercial rent arrears will depend upon your individual circumstances and the terms of the Lease. If you are a commercial Landlord and seek further advice and assistance in recovering sums owed to you contact our Dispute Resolution Department today.

If you are a commercial Landlord seeking advice in relation to a tenant who has fallen into arrears, contact our Dispute Resolution team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

There are some fantastic examples of innovation and creativity in business at the moment as companies move to remain solvent during lockdown. When it comes to disputes, the same commercial acumen should be the first to come into play in trying to find the best solution when faced with all the options. All the options invariably include solicitor’s fees and/or Court costs.

Finding that commercial way forward is also supported by the Courts. For many years now, the Courts have placed court proceedings on hold so parties can mediate or explore alternative dispute resolution. Whilst the Civil Procedure Rules which provide the framework for court work and past case law both set out the penalties for those who choose not to explore alternative options, examples of these rules being applied have not as frequent as perhaps initially hoped. Until now.

Times are changing. With now more pressure on the already stretched Court system, lengthy delays cannot be a prospect that many wish to face. The Courts are actively encouraging parties to seek alternative ways of resolving their dispute.

The case of DSM v. Blackpool Football Club [2020] was one such case in which a failure to opt for mediation was heavily penalised. The reasons given for refusing to engage in mediation were thought to be inadequate; simply saying that there was a strong defence was not enough. No defence, however strong, was said to justify a failure to engage in any kind of alternative dispute resolution.

The Judge in this case stated:

“Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in the ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money. Even if they do involve payment of money, the amount may compare favourably (if the settlement is timely) with the irrecoverable costs, in money terms alone, of an action that has been successfully fought.  The costs of an action will not always be limited to financial costs, however. Trial is likely to require a significant expenditure of time, including management time, and may take a heavy toll on witnesses even for successful parties which a settlement could spare them. As to admission of liability, a settlement can include admissions or statements which fall short of accepting legal liability, which may still be of value to the party bringing a claim.”

If ever there was an incentive to find a commercial way forward using business skills, this is the time.

Find out more about our dispute resolutions here.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

 

COVID-19 has had a significant impact upon a Landlord’s ability to regain possession of their properties as well as introducing a number of practical issues for consideration as outlined below.

Possession proceedings

One of the key areas of focus within the Coronavirus Act 2020 (“the Act”) is the implementation of further protection for Tenants against eviction.

The implementation of the Act means that Landlords will be prevented from commencing possession proceedings until a minimum notice period of 3 months has been given to the Tenants.

Even Landlords who served Notice or issued proceedings prior to the implementation of the Act will be hindered by further restrictions imposed by the Civil Procedure Rules 2020, which state that all possession proceedings are to be stayed for an initial period of 90 days from 27 March 2020. These restrictions also apply to those who have already obtained a Possession Order against their Tenant and seek to enforce it by way of a warrant of possession (bailiff assistance).

Rent

Tenants remain obliged to pay their rent as it falls due in accordance with their Tenancy Agreement and there is no legal requirement for Landlords to reduce rent or allow rent-holidays.

Government guidance has however urged Landlords to try and work with their Tenants and be as flexible as is reasonable in the circumstances, such as agreeing a temporary payment plan should the Tenant honestly fall into financial difficulty as a result the pandemic.

From a practical point of view, it may of course be beneficial to accommodate Tenants who have otherwise complied with the terms of their Tenancy, rather than risk the property being empty for a short while after the restrictions have been lifted or being let to less suitable Tenants in the future.

Property Repairs

Much as the Tenant’s obligations under the Tenancy Agreement remain in force, so do the Landlord’s. This means that Landlords remain responsible for necessary repairs to their property, such as boiler repairs or plumbing issues.

Government guidance has however urged both Landlords and Tenants to take a ‘common-sense’ approach to this for non-essential repairs and that Landlords, agents and workmen follow the social-distancing measures wherever practicable.

If you are a Landlord and do reasonably face difficulties in arranging access to your property due to COVID-19, we would urge you to document your attempts to access and remedy any issues reported by your Tenants as well as the reasons for said attempts being unsuccessful.

For further advice and assistance, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email litigation@franklins-sols.co.uk.