At Clarke & Son, our Dispute Resolution Solicitors are highly experienced in handling legal issues regarding a range of property issues.
Our team can assist in matters involving jointly owed properties, lease extensions, rented properties and service charge disputes.
As well as dealing with disputes raised after issues arise, we can also advise you intially on how to protect yourself to help avoid problems down the line.
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Our Dispute Resolution team are on hand to assist with a range of property enquiries, get in touch to book an appointment.
Jointly Owned Properties
The sensible thing when purchasing jointly owned property is for the parties to enter into a Declaration or Deed of Trust (also known as a Co-Ownership Agreement). This type of agreement can help to avoid problems down the line. It will confirm contributions to the purchase price, who is responsible for the mortgage and many other things. It will also address the situation which could arise in the event one party wants to sell and the other does not. Instead of trying to figure things out from the circumstances a well-drafted Trust Deed or Agreement more likely than not means there will be no dispute.
We can assist with the drafting of a Trust Deed or Agreement and/or advising on its terms. We are careful to ensure that we do not advise one party against the other. In certain cases it is necessary for either one or both parties to take their own independent legal advice. We will let you know what is appropriate. There may be some additional cost but to ensure the arrangement is sound and enforceable this may be required.
However, in other instances, where cohabitees have a dispute with one another about property occupation and ownership, their principal remedy is to apply for relief under the law. The court has broad powers and can make a declaration about the parties’ property rights according to established principles of trust law, but it has no discretionary power to adjust those rights.
These claims can be expensive to litigate. We will use our expertise to advise you as soon as possible as to what we think the outcome will be and the costs of pursuing the proceedings. You can them make an informed decision about how matters are taken forward.
We always encourage a constructive attitude to settlement. Whether in negotiations with the other party’s legal adviser or through a more formal mediation process. This is what the Court expects us to do. If this approach is not adopted there can be penalties imposed by a Judge such as additional liability for costs.
If a dispute involves a married couple then different principles can arise. In that instance you need expert help which we can provide. The procedure for making an application is under the Civil Procedure Rules (CPR). This toolkit contains materials to guide practitioners through the procedure for starting a TLATA 1996 application and the legal principles that the court applies when considering such an application.
Lease Extensions & Collective Enfranchisement
This area of law is complex with many potential procedural pitfalls and frequently involves obtaining expert valuation evidence.
Tenants of certain long leases of flats have statutory rights:
- To acquire the freehold (with other lessees) which is often called ‘Collective Enfranchisement’.
- To the grant of a lease extension.
We act for tenants and landlords in this area. Helping negotiate or alternatively advance or respond to applications for Collective Enfranchisement or the grant of a lease extension. We have contacts with specialist valuation surveyors who can assist in setting you on the right path from the outset and also with negotiations with the surveyor for the other party.
Buy to Let has becoming increasingly popular. Many people are investing in property and seeing good returns from rental income and capital growth.
Firstly, it is vital all the legal elements are in place. Landlords come in all guises from large businesses with an extensive portfolio to private individuals with a single property.
The starting point for every Landlord is to ensure the paperwork is in order. This can range from pre-tenancy credit checks, inventories and the preparation of tenancy agreements to the correct registration of deposits and monitoring of by the tenant of obligations throughout the tenancy not least of which is timely payment of rent!
A letting agent will often deal with all these matters for you. If you are an experienced Landlord you will probably have an agent. In particular the letting agent can help you comply with the tenancy deposit requirements.
Where a solicitor typically becomes involved is when things go wrong! Remember that letting property is a business and all businesses have risk.
An alarm bell should go off when rent it not paid. It is important that prompt action is taken to protect the landlord’s position. There will be costs. However, in comparison with a month to month loss of income which rapidly mounts up then there is nothing to gain from delay. The Court process which normally has to be followed is not quick and can be frustrating for landlords. Notices have to be served, proceedings issued, a possession order obtained and then enforced. You can be looking at a period of several months before you can get your property back. However it is the only way to move the situation forward.
This is where we can help with specific advice on the problem confronting you and the best way to move matters forward. Involving us as soon as possible is better because damage limitation is critical. If it means issuing court proceedings for possession and arrears we will do this as soon as possible.
We will provide you with fixed fee quotes for each stage of the process so you can manage costs.
Finally, you may find that you have legal expenses insurance cover in place under the insurance for the property or through your letting agent. You should contact the insurer straight away to find out your coverage for this type of claim. Cover is not normally retrospective. You can let the insurer know you wish us to act on your behalf.
Service Charge Disputes
A service charge is a payment made by the tenant to their landlord. This is usually in addition to rent, for the costs incurred in providing services in relation to a property.
The lease will usually specify:
- Certain services the landlord provides.
- Various additional services which the landlord may provide, but without being under any duty to do so. If the landlord decides to provide these services, the tenant must reimburse the landlord through the service charge.
In determining whether a service charge is recoverable or not, it is vital to refer to the ‘contractual’ document. This is the Lease. This will contain terms dealing with obligations on the part of the landlord. As well as how the landlord can recover the cost of carrying out those obligations.
IF A SERVICE CHARGE IS LOW DOES IT MEAN EVERYTHING IS IN ORDER?
Just because a service charge is low does not necessarily mean everything is in order. Indeed, we would expect to see a material level of ongoing service charges as part of good management of a building. The precise amount depends on the nature of the building and its facilities. A high service charge might well reflect a well-managed building. In turn this will benefit individual lease holders when they come to sell in terms of marketability and value.
In addition to the terms of the lease, there are statutory provisions which:
- Limit what a landlord may recover by way of service charge.
- Require landlords to consult with, and provide information to, their tenants.
We can assist with advising on service charge provisions from the point of view of landlords and tenants. It is vital that landlords and tenants are aware of how their building is managed. They have a mutual interest. Therefore with our assistance will enable disputes to be resolved quickly.
We are aware that special issues can arise where in small buildings, the lessees also own the freehold. This is usually indirectly through membership of a residents management company which is the freeholder. The situation can be very personal and differences can arise. It is important for everyone to be clear what the legal position is. We can help if costs are arising which are outside the scope of the service charges contained in the lease.