Bored Neighbours: Neighbour disputes during the pandemic
April 14, 2020
By John Waiting
Since the beginning of the lockdown period three different friends have asked for advice in relation to their neighbours. For some the boredom of being stuck in their own house 23 hours a day has led to them reaching for the deeds and the green ink.
The Courts would be inundated with neighbour disputes if all neighbours stood on their strict legal rights. A bit of give and take is in the nature of being good neighbours. Solicitors and Barristers can only advise their clients as to the possible cost of proceedings for minimal obvious gain.
However, not all cases are about a 10cm encroachment. Some clients will want recourse against a neighbour who is being wholly unneighbourly and has refused enter into ADR and some clients will be defending against a neighbour who has brought an aggressive claim and refuses to settle amicably.
This article will raise some issues that practitioners may wish to consider.
How urgent is this really?
In relation to the letter from the bored neighbour acting in person, the best advice may be to send a reply saying that the client is willing to discuss once the pandemic is over or restrictions are relaxed. Consideration should be given as to whether this should be from the solicitor or the client in person so as not to escalate matters. A response to a pre-action letter from a solicitor stating that you wish to visit the site and have a conference with your client is also not likely to be seen as unreasonable.
However, one can envisage matters which are urgent. For example:
a) A limitation period may be about to expire. This question needs to be asked on every enquiry but some obvious periods would be 12 years adverse possession for unregistered land, 10 years for registered land, 20 years for s.2 Prescription Act 1832 (although thought must be given to any interruption within the 19th year, as a claim to establish the easement may be brought in the 20th year before there has been a year’s interruption).
b) There is practical urgency. An example would be a neighbour who is intentionally blocking the access to the drive of a doctor, so that she cannot drive to work. It is hoped that no-one is being this stupid.
c) Notification requirements to legal expenses insurers should also be considered.
In relation to scenario (b), it is noted that the Civil Listing Priorities, priority 1 work that must be done includes injunctions. However, one must take care to ask: “is this really urgent?” and to take any possible opportunities to persuade the neighbour be reasonable.
The Courts are hearing applications for interim injunctions remotely, and provide an effective remedy for the truly urgent case. The Judiciary are being pragmatic as to how cases are heard.
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Non-urgent cases
In non-urgent cases there are various reasons for attempting to pause hostilities until after restrictions are lifted:
Tensions may die down when neighbours are no longer stuck in their properties.
A site visit will be vital to advising on many boundary disputes. This will not be possible in the current circumstances without taking an unacceptable risk.
There may be difficulties speaking to third-party witnesses.
For new cases, it will be difficult to conduct meaningful early ADR to dispose of the matter. A mediation at site is not possible. Nor will be the drawing up of plans by a surveyor.
The Land Registry website was not accepting searches electronically at the start of the lockdown period. This appears to have been resolved. However, it is anticipated that there may be difficulties or longer lead times in obtaining filed copies of conveyances etc.
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Mediation
In an appropriate case, it is suggested that a mediation could still occur remotely. However, the following considerations need to be addressed:
a) Do the parties have the requisite plans, photographs and documents so that the mediation can progress effectively without being on site?
b) Does the remote meeting software allow screen-sharing and do the practitioners know how to use it? It is likely to be necessary to point to specific parts of plans, photographs and documents.
c) How is any agreement likely to be recorded? Will plans need to be drawn up? Will there need to be any formalities? Can this be achieved remotely?
However, if these issues can be overcome it this is good opportunity to mediate.
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Tribunal: Property Chamber
Some neighbour disputes are litigated in the Property Chamber of the Tribunal, for example disputed applications for First Registration of unregistered land.
The Tribunal has put a pause on face to face hearings before the end of May and has issued guidance which can be accessed here and a Practice Direction which can be assessed here.
The Practice Direction states:
- “Until further notice new applications and appeals should be lodged with the Tribunal by email. All correspondence and case management documentation for current and new applications should be lodged with the Tribunal by email. No further consent from the Tribunal in accordance with rule 16(1)(c) is required.
- Practice Direction – Property Chamber, First-tier Tribunal, Areas in the Property Chamber is suspended until further notice. Applications may be made to any office of the First-tier Tribunal (Property Chamber) (Residential Property)”.
The key message of the Guidance appears to be that parties should be patient and reasonable. Key points from the Guidance are:
Para 3: No face to face hearings. Hearings are to be carried out remotely (skype/telephone) or will be determined on paper.
Para 4: No inspections will take place for six months.
Para 5: Use generic email addresses rather than the addresses of administrative staff. Only communicate when necessary and by email.
Para 6A: All cases listed for final face to face hearings up to the at least the end of May have been or will be postponed. A decision for cases listed later will be made before the end of May. Parties can email if a face to face hearing already listed is considered Urgent. The Guidance sets out how to mark the email so it will be considered.
Para 6B: Parties should seek to comply with directions, but the Tribunal recognises there may be delays in compliance. Directions hearings will be listed in due course to consider directions. Again, if a matter is urgent parties can email.
Para 6C: Decisions will be sent out by post or email. Part-heard hearings will not be concluded face to face and directions will be given.
Para 6D: Appeal time limits remain the same. Appeals should be by email.
Para 6F: Fees are still to be paid by cheque or postal order.
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Conclusion
It is hoped that in the predicament in which we find ourselves would lead to neighbours looking out for each other. The news is full of examples of communities coming together whilst keeping two metres apart. Unfortunately, there may be cases where the urgent action is required. In relation to these cases urgent injunctive relief can still be obtained.
However, for the bored neighbour who has got out his deeds and his tape measure, there are two apt judicial statements:
“All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.” Ward LJ in Oliver v Symonds [2012] EWCA Civ 267
“The unfortunate consequences of a case like this are that, in the absence of any compromise, someone wins, someone loses, it always costs a lot of money and usually generates a lot of ill-feeling that does not end with the litigation. None of those things are good for neighbours.” Mummery LJ in Pennock v Hodgson [2010] EWCA Civ 873
John has a broad practice, encompassing all aspects of commercial, property and insolvency law.
