Buying a property with a sibling, friend or your unmarried partner might seem like a great way to cut down on costs and make it more affordable, but what do you do when it all goes wrong?
Sadly, sometimes it just doesn’t work. You argue over everything, you fall out, you just decide it doesn’t work for you anymore – but now you have a property that you have to do something with. And if your relationship has turned sour it can be really hard to have a grown-up conversation about what happens next.
The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) give courts power to resolve disputes about ownership of land and property. The court can get involved if you cannot agree on who owns the property and who has the right to live in it.
How Can I Take The Other Person To Court?
Firstly you need to consider other options such as mediation to try and work out the problem before it comes to court. Alternative Dispute Resolution (ADR) is the process for resolving disputes via mediation and negotiation prior to court proceedings.
If you do end up in court, the judge dealing with the case will be very interested to hear what you did prior to coming to court to resolve the problem. In some cases, if you haven’t undergone mediation you will be penalised for not attempting to solve your problems outside of the court room.
What Happens After Mediation?
If you wish to take the matter to court, you will need to write a letter stating your reasons for the dispute and what you want the court to do. This is known as a pre-action letter. It is a requirement in almost all situations.
The letter should outline the background to the claim and the legal principles behind it. For this you will definitely need the help of a dispute resolution lawyer. In the letter you should include any documents which help support your claim. The letter should be sent to all co-owners and the court.
The person who you are bringing court action against has 14 days to acknowledge that they have received the letter. They should then provide a full response to it within 30 days. The response should include whether they accept the claims you are making or dispute them. And if they are disputed they need to explain why and include any relevant documents.
If the opposing party asks for any further information about your claims, or any documents you may have, you must respond and provide this. This whole process is known as the pre-action protocol.
Both you and the other parties are entitled to involve an expert to help negotiate a compromise and try and keep it out of court. In disputes about land the experts involved are often valuers and surveyors who can help put a value on the land in question.
Do We Now Go to Court?
If you still haven’t managed to resolve the issues via mediation or the pre-action protocol then you can start court proceedings. Claims about land ownership usually start in the County Court.
Different rules apply to different types of court claim. The rules that apply to claims about land ownership are the Civil Procedure Rules 1998 (CPR).
Your lawyer will be able to help you complete the next part of the procedure which is completing a claim form. This must include a summary of what you are claiming and why, the evidence you’re relying on, the value of the claim, and what you want the court to do. A fee is charged on the Claim Form which varies on the value of the claim.
Directions and Case Management Conferences
Once a form has been received the courts will send out an allocation questionnaire. This is where both parties must identify the need for expert evidence and the likely length of the trial. On receiving the completed questionnaires the court will either set a structure for how the rest of the case will be run (called directions) or will schedule a Case Management Conference (CMC).
A CMC usually lasts for about 30 minutes. It is not uncommon for CMCs to be conducted on the telephone. All parties’ representatives are required to attend the CMC. A court may make directions on receiving the allocation questionnaires or at a CMC. Unless a case is particularly complex, it will make directions without calling a hearing and without the parties (or their lawyers) needing to go to court.
Directions commonly made in land disputes include:
- A timetable for serving any further written evidence;
- A timetable for disclosing and exchanging any relevant documents;
- Regarding expert evidence: deciding whether an expert is needed, in what discipline, what questions ought to be asked, whether the expert should be a single joint expert, etc;
- Where the trial should take place, and
- How long the trial will last.
At any stage, the court may schedule a CMC and there may be more than one. At a CMC, the court will:
- Review the progress of the claim and preparations for trial;
- Consider compliance by all parties with existing directions;
- Make any further directions needed to progress the claim, and
- If possible, try to help identify and reduce the issues between the parties.
Going to Court
When the court is satisfied that the case is ready they will schedule a trial date and you’re one step closer to getting your property dispute sorted. You will be asked to complete a pre-trial checklist which will ask you to state who will be your witnesses, including any experts you’ve asked to help you.
At any time before the trial you, or the other party, can make an offer to settle the claim outside the court room. Any offer must be in writing and be open for acceptance for at least 21 days.
If an offer doesn’t appear and you go to court your legal representative, expert witnesses, and documentation will go up in front of the judge and they will decide what the outcome is to be.
It can be a long drawn out process and is always best done with the help of an expert dispute lawyer beside you.
Slater and Gordon have expert dispute resolution lawyers that can help you through every stage of the process. Call us on freephone 0800 916 9015 or contact us online and we will call you.