Property and land dispute barrister advice

Property disputes can affect your home, investment, business or ability to use and enjoy land. They can also become expensive and difficult to resolve if the parties’ legal rights are not identified at an early stage.

The barrister can help you understand your legal position, assess the strengths and weaknesses of your case and decide what practical steps to take next.

Examples of Property disputes we may be able to help with

Beneficial ownership and trusts of land

The legal ownership shown at HM Land Registry does not always determine how the beneficial interest in a property is divided.

Advice may cover:

• whether someone has acquired a beneficial interest in a property;

• disputes between cohabiting partners, family members or joint investors;

• the effect of contributions towards the purchase price, mortgage or improvements;

• express, resulting or constructive trusts;

• agreements or assurances concerning ownership;

• the respective shares of joint owners;

• whether a property should be sold; and

• potential claims under the Trusts of Land and Appointment of Trustees Act 1996, commonly known as TOLATA.

Boundary and land ownership disputes

Disagreement may arise about the location of a legal boundary, the ownership of a strip of land or the correct interpretation of Land Registry plans and property deeds.

A barrister may advise on:

• the likely position of a legal boundary;

• the relevance of title documents, conveyances, plans and physical features;

• encroachment by buildings, walls, fences or landscaping;

• claims involving adverse possession;

• what evidence may be required from surveyors, previous owners or neighbours;

• the prospects of obtaining a declaration, injunction or damages; and

• possible ways of resolving the dispute without court proceedings.

Rights of way, access and easements

Rights over neighbouring land can be essential to the use of a home, business or development site.

Advice may concern:

• the existence and extent of a right of way;

• pedestrian or vehicle access;

• shared driveways and access roads;

• parking, drainage and rights to use services;

• whether a right has been acquired by long use;

• excessive or unauthorised use of an easement;

• obstruction or interference with access; and

• whether the right benefits or binds a particular property.

Restrictive covenants

Restrictive covenants may limit the way land can be used or developed.

Questions may include:

• whether a covenant remains legally enforceable;

• which land benefits from the restriction;

• whether a proposed use or development would breach it;

• whether consent is required;

• the potential consequences of a breach;

• possible applications to discharge or modify a covenant; and

• the availability of an injunction, damages or other remedy.

Trespass, nuisance and interference with property rights

Advice may be available where another person has entered or used land without permission or has interfered with its reasonable use and enjoyment.

Examples include:

• encroaching structures;

• unauthorised access or parking;

• interference with rights of way;

• water, noise, smells, vegetation or other disturbance;

• damage caused by neighbouring land or works;

• continuing or repeated trespass; and

• possible claims for an injunction or damages.

Party walls and damage to adjoining property

Building works can lead to disputes between neighbours about compliance with the Party Wall etc. Act 1996, access, damage or responsibility for repairs.

A barrister may advise on:

• whether the legislation applies;

• the effect of notices and party wall awards;

• alleged failure to follow the statutory procedure;

• responsibility for damage caused by building works;

• access required to undertake works or repairs; and

• the remedies potentially available to either owner.

Estate management charges, rentcharges and property deeds

Property deeds may impose obligations to make payments, contribute towards shared facilities or comply with restrictions affecting an estate.

Advice may cover:

• the interpretation and enforceability of deed obligations;

• estate management and maintenance charges;

• rentcharges and estate rentcharges;

• the correct apportionment of expenditure;

• whether charges are contractually recoverable;

• responsibility for roads, drainage, landscaping or communal areas; and

• the remedies available where obligations have not been observed.

Landlord and tenant disputes we may be able to help with

Residential possession proceedings

A residential landlord must follow the correct legal procedure before recovering possession. A tenant or contract-holder may need advice about whether a notice or possession claim is valid and how to respond.

Advice may cover:

• the legal basis for seeking possession;

• whether the required ground for possession is available;

• the form, contents and service of a possession notice;

• whether the correct notice period has been given;

• rent arrears or other alleged breaches;

• mandatory and discretionary grounds for possession;

• the evidence required at a possession hearing;

• defences and counterclaims;

• possession orders, warrants and enforcement; and

• applications to suspend, postpone or set aside an order.

Rent arrears

Rent arrears may lead to possession proceedings or a separate claim for payment.

A barrister may advise on:

• the amount of rent legally due;

• disputed rent accounts;

• payments not properly credited;

• whether arrears establish a ground for possession;

• mandatory and discretionary rent-arrears grounds;

• repayment proposals;

• claims against guarantors;

• entitlement to interest and costs;

• defences, set-offs or counterclaims; and

• enforcement of a judgment for arrears.

Breaches of tenancy or occupation agreements

Disputes may arise where either party is alleged to have failed to comply with the terms of an agreement.

Examples include:

• unauthorised occupiers;

• subletting or assignment;

• antisocial behaviour or nuisance;

• damage to the property;

• keeping pets without consent;

• use of the premises for an unauthorised purpose;

• failure to provide access;

• harassment or unlawful interference with occupation;

• alleged breaches by the landlord; and

• whether the alleged breach justifies possession, an injunction or damages.

Tenancy deposits

Residential tenancy deposits are subject to statutory requirements concerning protection and prescribed information.

Advice may cover:

• whether a deposit should have been protected;

• whether protection occurred within the required time;

• compliance with prescribed-information requirements;

• disputes over deductions;

• claims for the return of a deposit;

• possible financial penalties for non-compliance;

• the effect of non-compliance on possession proceedings;

• responsibility for damage, cleaning or unpaid rent; and

• evidence about the property’s condition at the beginning and end of the tenancy.

Disrepair and fitness for occupation

Landlords may have statutory and contractual responsibilities for repairs and the condition of residential premises.

A barrister may advise on:

• responsibility for structural and exterior repairs;

• heating, plumbing, sanitation and electrical installations;

• damp, mould or water penetration;

• whether a property is fit for human habitation;

• notice of the alleged defects;

• access for inspection or repair;

• whether repairs were completed within a reasonable time;

• compensation for inconvenience, damage or loss;

• rent arrears raised alongside a disrepair claim; and

• the need for surveyor or environmental-health evidence.

A technical dispute about the cause or extent of disrepair may require evidence from a surveyor or other expert.

Service charges and administration charges

Leaseholders may dispute whether residential service charges or administration charges are payable or reasonable.

Advice may concern:

• the interpretation of service-charge provisions;

• whether expenditure falls within the lease;

• the reasonableness of works and charges;

• consultation requirements for major works;

• apportionment between leaseholders;

• reserve or sinking funds;

• management fees;

• administration charges;

• demands, accounts and supporting documents; and

• applications to the appropriate court or tribunal.

Leasehold obligations

Residential and commercial leases impose obligations on both landlords and tenants.

Disputes may involve:

• responsibility for repair and maintenance;

• insurance obligations;

• alterations and improvements;

• assignment or subletting;

• consent requirements;

• access and inspection;

• nuisance or prohibited use;

• recovery of legal or professional costs;

• enforcement of lease covenants; and

• the remedies available for breach.

Commercial lease renewals

A business tenant may have statutory rights to renew its lease, depending on the nature and terms of the tenancy.

A barrister may advise on:

• whether the tenancy has security of tenure;

• whether statutory protection was excluded;

• notices to terminate or request a new tenancy;

• the validity and timing of notices;

• a landlord’s grounds for opposing renewal;

• the terms of a proposed new lease;

• interim rent;

• applications to the court;

• negotiation of renewal terms; and

• the consequences of missing a statutory deadline.

Commercial lease renewal procedures are highly time-sensitive. Prompt advice should be obtained when a notice has been served or a lease is approaching its contractual expiry date.

Break clauses and termination

A break clause may permit a landlord or tenant to terminate a lease early, but the contractual requirements must usually be followed carefully.

Advice may cover:

• the proper interpretation of the break clause;

• the form and service of a break notice;

• calculation of the break date;

• compliance with conditions;

• payment of rent and other sums;

• vacant possession;

• removal of occupiers or belongings;

• whether a break notice is valid;

• the consequences of an invalid notice; and

• alternative methods of terminating the lease.

Dilapidations and repair obligations

At the end of a commercial lease, a landlord may claim that the tenant has failed to comply with repairing, reinstatement or decoration obligations.

A barrister may advise on:

• the meaning and extent of the repairing covenant;

• the effect of the property’s condition when the lease began;

• schedules of condition;

• reinstatement of alterations;

• terminal schedules of dilapidations;

• the reasonable cost of remedial works;

• whether the landlord intends to carry out the works;

• limitations on the damages recoverable;

• supersession by redevelopment or other works; and

• settlement or court proceedings.

Forfeiture and relief from forfeiture

A commercial or long residential lease may permit forfeiture following certain breaches, but statutory and contractual requirements may restrict the landlord’s right to re-enter or issue proceedings.

Advice may concern:

• whether a right to forfeit has arisen;

• rent arrears or other alleged breaches;

• whether a required notice is valid;

• waiver of the right to forfeit;

• peaceable re-entry;

• possession proceedings;

• relief from forfeiture;

• the terms on which relief may be granted;

• the position of mortgagees or subtenants; and

• recovery of arrears, interest and costs.

Use, assignment and subletting of premises

Disagreement may arise about how premises may be used or whether a lease can be transferred or sublet.

Advice may cover:

• permitted-use clauses;

• unauthorised changes of use;

• restrictions on assignment or subletting;

• applications for the landlord’s consent;

• whether consent has been unreasonably withheld or delayed;

• conditions attached to consent;

• authorised guarantee agreements;

• sharing occupation with another business;

• alterations associated with a proposed use; and

• remedies for breach.

What advice can the barrister provide?

Depending on the questions accepted, the barrister may help you understand:

• your rights and obligations;

• the proper interpretation of deeds, plans or agreements;

• the strengths and weaknesses of your position;

• what further evidence may be required;

• whether correspondence or allegations made against you are legally justified;

• the possible remedies, including declarations, injunctions or damages;

• whether negotiation, mediation or court proceedings may be appropriate; and

• the practical steps you should consider taking next.

• Depending on the questions accepted, the barrister may help you understand:

• your rights and obligations under the tenancy, occupation contract or lease;

• whether a notice or possession claim is valid;

• the strengths and weaknesses of your position;

• whether rent, service charges or other sums are recoverable;

• what further evidence or expert opinion may be required;

• the defences, counterclaims or remedies potentially available;

• any important procedural requirements or deadlines;

• whether negotiation, mediation, a tribunal or court proceedings may be appropriate; and

• the practical steps you should consider taking next.

Barristerly is an independent booking and introduction service connecting clients with participating independent Public Access barristers. Barristerly is not a firm of solicitors or a barristers’ chambers and does not itself provide legal advice.