‘An Englishman’s home is his castle’ is a familiar phrase with its origins in the 16th century, where it was widely accepted that no one should have the right to interfere with the use and enjoyment of a person’s property except in very limited circumstances.
Fast forward 500 years and, while the phrase remains well known, there are now numerous ways in which our rights as homeowners can be curtailed and which can lead to a dispute. This is particularly true where there are shared property interests at play, for example:
- in respect of a private road that you have the right to access alongside your neighbours;
- common areas in an apartment block or on a residential estate;
- shared facilities in a retirement or holiday village; or
- a property which you co-own with a housing association.
‘The reasons for such disputes are myriad, from noisy neighbours and unkept gardens to problems with access,’ says Kenneth Amakye, civil disputes lawyer with Morlings Solicitors in Chatham. ‘Those disputes which arise over financial calculations are often the most serious, especially if substantial sums are at stake. If you are up against a large or remote company then you would benefit from the input of an experienced property disputes solicitor.’
Taking the examples above, disputes might arise over:
- the obligation to contribute towards recurring maintenance and repair costs or access roads or common areas;
- the level of service charge imposed for the upkeep of common areas or on the exit fees demanded when a property is sold; or
- how a property is valued if you decide to cash in your investment and release the equity that you have built up.
Getting to the root cause of the problem
A solicitor who is familiar with property disputes can explain your legal rights and outline the prospects of a favourable resolution.
For example, where the dispute concerns the condition of a shared private road and the liability of those using it to contribute towards its upkeep, the likelihood is that the answer to the dispute will lie in the transfer documents prepared at the time the affected homes were first sold. These will usually detail the ongoing rights and obligations of both the original owners and anyone to whom the properties are then subsequently sold.
Where this is not the case, then the answer may instead lie in an examination of previous legal decisions in respect of other shared interest disagreements which have parallels to the dispute in which you are now embroiled. For instance, there is legal authority for the proposition that a homeowner who has the right to use a private shared road, and who indeed chooses to exercise that right, must also then bear the burden of making a proportionate contribution towards the cost of ensuring that the road is kept in good order.
Making your position clear
The first active step that a solicitor will usually propose will be to write a letter to the person or organisation that you are in dispute with and in which you explain:
- what you perceive the problem to be;
- where you stand in respect of the problem that has arisen;
- what you consider to be a fair and reasonable solution; and
- your suggestions for resolving the dispute where an agreement cannot be reached.
The letter should be clear and sufficiently detailed. It should also be accompanied by any relevant documentary or witness evidence that you have to support what you are saying and to justify the position you have elected to adopt.
Your opponent should be given a reasonable amount of time to reply, which could be anything from 14 to 90 days depending on the complexity of the matter.
Dispute resolution options
Taking a shared interest dispute to court should always be a matter of last resort. Therefore, where agreement cannot be reached over how a matter should be resolved, it is advisable for you and those you are in dispute with to consider whether the use of an alternative dispute resolution process may help.
There are many options to choose from, including lawyer-led negotiation, professional mediation and the appointment of an independent expert, such as a property surveyor, a specialist barrister or even a retired county court or high court judge.
There may even be a sector-specific option that you can use, such as the Housing Ombudsman or Property Ombudsman Service.
Court action
Where everything else fails, the ultimate way to tackle a dispute over a property with shared interests is to refer the matter to court for determination by a judge. However, where this becomes necessary it is important to understand there will be a defined procedure that has to be followed and that you are likely to have to collate a lot of information in support of your position and also possibly engage the services of an expert who can add credence to your arguments.
Having a lawyer to support you through the process will provide you with the best prospect of success.
For further information, please contact Kenneth Amakye in our dispute resolution team on 01622 673081 or email at Kenneth.Amakye@morlings.com.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.