Freehold Property Disputes

2 Matter Plans Included

ALERTS - Nil
Full Commentary - Freehold Property Disputes - Acting for the Claimant
Reference materials
- Electronic Signing and Witnessing
- Looking to the Future
- Article: Alternative dispute resolution
- Article: Costs actually
Overview and limitation periods

Civil litigation is the process of resolving disputes between parties that can include individuals, partnerships, companies, and businesses. The court system is split between the County Courts and the High Court and the process is governed by the Civil Procedure Rules (CPR).
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Summary of the process

The usual steps in acting for a claimant in a freehold property dispute matter are:
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A. Getting the matter underway
- Freehold property dispute considerations
  
  The initial step when considering any issue relating to a freehold property is to obtain a copy of the title deeds. The Land Registry will be able to supply copies of any register entries, plans, or documents which it holds. These may need to be requested specifically, particularly if historical ...
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- File cover sheet - Freehold property disputes
- To do list - Freehold property disputes - Acting for the claimant
- First steps
- Retainer instructions - Freehold property disputes
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Freehold property disputes - Acting for the claimant
  - A summary of the property dispute resolution process
- Funding
  
  Standard retainer Under a standard retainer, the solicitor’s costs and all disbursements and expenses are paid to the solicitor as they fall due.
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- If required - Conditional fee and damages-based agreements
  - Conditional fee agreement
    
    A conditional fee agreement is a no-win, no-fee arrangement based on the premise that a client is not responsible for the solicitor’s costs if the case is unsuccessful. Section 58(2)(a) of the Courts and Legal Services Act 1990 defines a conditional fee agreement as:
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  - Conditional fee agreement
  - Letter to client explaining barrister's fees
  - Letter to client giving informed consent to conditional fee agreement
  - Enclosure - Conditional fee agreements explained
  - Damages-based agreements
    
    A damages-based agreement is a contract between a solicitor and client that, if the client’s claim is successful, the solicitor will be entitled to a share of the recoveries. Damages-based agreements are different from conditional fee agreements in that they can be used only with claimant clients.
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  - Damages-based agreement
  - Letter to client enclosing damages-based agreement for signing
  - Enclosure - Damages-based agreements
  - Notice of funding of case or claim
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Nuisance
- Overview
  
  Common law nuisance is, at its heart, a violation of property rights. There are a number of examples encountered in practice which can usually be grouped into three general categories:
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- Public nuisance
  
  Where the affected land is public, or the nuisance affects the public at large, the usual course is for the local authority to bring an action for statutory nuisance under the Environmental Protection Act 1990. Statutory nuisance differs from common law nuisance in that the local authority has a ...
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- Letter to local authority reporting statutory nuisance
- Letter to defendant giving notice of complaint for statutory nuisance
- Private nuisance
  
  Private nuisance relates to the lawful use of land which has negative consequences on a neighbour. A general duty of care is owed by one neighbour to another and each should do what is reasonably expected of them. This doctrine encompasses inactivity as a source of nuisance, for example where a ...
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- Letter to defendant warning of high hedge complaint
- Letter to local authority making complaint about a high hedge
- Alternatives to court action
  
  Abatement Where possible the opportunity to abate the nuisance should be explored. This may involve either party doing some work to rectify the situation. The cost of doing so could be claimed from a defendant who knew, or ought to have known, about the nuisance and was given the opportunity to ...
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- Pre-action conduct and protocols
  
  There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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- Letter to defendant before action - Private nuisance
- Practice direction - Pre-action conduct and protocols
- Letter to client confirming initial demand letter before action has been sent
- Letter to court filing documents
- Claim form (CPR Part 7)
- Claim form (CPR Part 8)
- Clause - Particulars of claim - Private nuisance
C. Trespass
- Criminal offence
  
  Where any of the below offences may be relevant clients should be directed to the police in the first instance, particularly if in danger and requiring immediate assistance, using 999 or 101.
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- Civil claim
  
  A civil claim for trespass can be brought whether or not the claimant has suffered any damage or loss, unlike other causes of action. This reflects the history of the claim where it was assumed that trespass would eventually lead to a breach of the peace and early intervention was encouraged. In ...
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- Pre-action conduct and protocols
  
  There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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- Practice direction - Pre-action conduct and protocols
- Interim possession order
  - Interim possession order procedure
    
    Applications should be made in the county court which has jurisdiction over the land in question. The relevant court can be found by using the Court and tribunal finder.
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  - Letter to court filing documents
  - Claim form for possession of property
  - Clause - Particulars of claim - Possession after trespass
  - Application for an interim possession order
  - Letter to defendant serving interim possession claim
  - Witness statement of the defendant to oppose the making of an interim possession order
  - Letter to process server with instructions to serve interim possession claim against unknown occupier
  - Letter to process server with instructions to serve interim possession order against unknown occupier
  - Certificate of service
  - Letter to process server with instructions to serve final possession order against unknown occupier
- Possession order
  - Possession order procedure
    
    Applications should be made in the county court which has jurisdiction over the land in question. The relevant court can be found by using the Court and tribunal finder.
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  - Letter to court filing documents
  - Claim form for possession of property
  - Clause - Particulars of claim - Possession after trespass
  - Particulars of claim for possession (trespassers)
  - Letter to defendant serving possession claim - Trespass
  - Letter to process server with instructions to serve possession claim against unknown occupier
  - Certificate of service
  - Letter to process server with instructions to serve possession order against unknown occupier
- Injunctions
  - Injunction procedure
    
    The application An application for an injunction may be made in the County Court using an N244 Application Notice with an accompanying witness statement if the evidence is too long to insert into the application form. A draft of the injunction order can be attached using an N16 Injunction Order ...
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  - Letter to court filing documents
  - Application notice
  - Injunction order
  - Letter to process server with instructions to serve injunction claim against unknown occupier
  - Certificate of service
D. Boundary issues
- Boundary issues
  
  The boundary between two properties is usually denoted by a red line on a Land Registry filed plan. In the absence of registration the line will be on the most recent plan forming part of the title deeds. However, disputes arise for a number of reasons, including:
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- Boundary disputes protocol
  
  While it is not legally binding in the same way as the pre-action protocols set out in the Civil Procedure Rules The Boundary Disputes Protocol provides a best practice route to early resolution of boundary disputes. It is advisable for parties to consider alternative dispute resolution methods as ...
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- Letter to client proposing boundary dispute protocol
- Letter to defendant setting out boundary issue
- Letter to other side's solicitor proposing boundary dispute protocol
- Letter to other side's solicitor with initial title documents
- Letter to other side's solicitor exchanging title evidence
- Letter to expert requesting report
- Settlement reached
  - Letter to client enclosing boundary agreement and transfer of part
  - Boundary agreement
  - Transfer of part registered title(s)
  - Letter to other side enclosing boundary agreement and transfer of part
  - Letter to lender enclosing boundary agreement and transfer of part
  - Letter to Land Registry enclosing AP1 to change the register and supporting documents
  - Application to change the register
- Settlement not reached
  - Letter to the other side’s solicitor suggesting alternative dispute resolution
  - Pre-action conduct and protocols
    
    There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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  - Practice direction - Pre-action conduct and protocols
  - Exact line of boundary - registration
- Adverse possession
  - Adverse possession
    
    Where land is occupied by someone other than the registered proprietor – or where there is no documentary evidence of the occupier’s unregistered ownership – adverse possession can be claimed by application to the Land Registry with appropriate evidence. The basic requirements are similar no matter ...
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  - Letter to defendant's solicitor addressing adverse possession claim and discussing next steps
  - Letter to Land Registry enclosing FR1 for first registration and supporting documents
  - First application - registration
  - Documents list
  - Statement of truth in support of an application for registration based upon adverse possession
  - Application for registration of a person in adverse possession under Schedule 6 to the Land Registration Act 2002
- Party walls
  
  ‘Party walls’ are defined in the Party Wall etc. Act 1996 as the parts of buildings which stand on boundaries. ‘Party fence walls’ are defined as walls which are not attached to buildings. This definition does not include wooden fences. Floors and ceilings between flats, party walls and party fence ...
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- Access to Neighbouring Land Act 1992
  
  This Act provides a building owner with a right to access an adjoining owner’s land to carry out work in specific circumstances. An access order may be applied for in accordance with s 1 of the Access to Neighbouring Land Act 1992 if access has been refused. The application should be made ...
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- Scaffolding licence
- Crane oversailing licence
E. Breaches of covenants
- Covenants
  
  Covenants are, in simple terms, promises made between parties. The performance of the covenant by one or more of the parties has some effect on the land involved. The land which benefits from the covenant is usually referred to as the dominant land and the land which bears the burden is referred to ...
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- Tax implications
  
  Chargeable interests for both stamp duty land tax and land transaction tax purposes are defined in s 48 of the Finance Act 2003 as ‘an estate, interest, right or power in or over land … or the benefit of an obligation, restriction or condition affecting the value of any such estate, interest, ...
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- Where restrictive covenants are found
  
  The date of the creation of the restrictive covenant is important when investigating a title to ascertain whether a restrictive covenant exists.
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- Letter to Land Registry with enclosure - General
- Application for an official search (not applicable to registered land)
- Official copies of register or plan - registration
- Historical register or title plan - registration
- Official copies of documents - registration
- Enforceability
  
  Deciding whether a restrictive covenant is enforceable is no easy matter and depends on a number of factors.
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- Alternatives to court action
  
  Abatement Where possible the opportunity to abate the nuisance should be explored. This may involve either party doing some work to rectify the situation. The cost of doing so could be claimed from a defendant who knew, or ought to have known, about the nuisance and was given the opportunity to ...
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- Letter to client enclosing deed of release of restrictive covenants
- Letter to other side enclosing deed of release of restrictive covenants
- Letter to lender enclosing deed of release of restrictive covenants
- Deed of release of restrictive covenants
- Letter to other side enclosing signed deed of release of restrictive covenants
- Letter to Land Registry with enclosure - General
- Notice - cancellation
- Unilateral notice - application to remove
- Unilateral notice - cancellation
- Upper Tribunal (Lands Chamber)
  
  An application can be made to the Upper Tribunal (Lands Chamber) for the modification or discharge of a restrictive covenant if one of the following grounds in s 84 of the Law of Property Act 1925 applies:
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- Application under Section 84 of the Law of Property Act 1925 to discharge or modify a restrictive covenant
- Court
  
  There is no specific pre-action protocol relating to breaches of covenants so the Practice Direction – Pre-action conduct and protocols serves as guidance. Proceedings may be started under Part 7 of the Civil Procedure Rules or under Part 8 if there are unlikely to be substantial disputes ...
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- Practice direction - Pre-action conduct and protocols
F. Ownership disputes
- Ownership disputes
  
  A trust of the land is required to claim an interest if a person is not named as a legal owner on the title. A trust of land can be express, implied, resulting, or constructive and is governed by the Trusts of Land and Appointment of Trustees Act 1996. Although the Act came into force on ...
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- Letter to client enclosing notice of severance of joint tenancy
- Notice of severance of joint tenancy
- Letter to Land Registry with enclosure - General
- First registration caution
- Application for registration of a notice of home rights
- Application to enter a restriction
- Pre-action conduct and protocols
  
  There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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- Letter of claim to defendant - Trusts of Land and Appointment of Trustees Act 1996 claim
- Practice direction - Pre-action conduct and protocols
- Clause - Particulars of claim - Trusts of Land and Appointment of Trustees Act 1996
G. Settling the matter
- Alternative dispute resolution
  
  A court has discretionary power to order parties in court proceedings to engage in alternative dispute resolution (ADR), James Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Mr Churchill claimed against his council for damage caused to his property by Japanese knotweed. ...
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- Letter to the other side’s solicitor suggesting alternative dispute resolution
- Mediation service – Small claims track cases
  
  The Civil Procedure Rules provide for the referral of small claims track cases to the Small claims mediation service run by HM Courts & Tribunals Service: Practice Direction 51ZE – Small Claims Track Automatic Referral to Mediation Pilot Scheme. As with all forms of ADR this provides an ...
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- Mediation settlement agreement
- Offers to settle
  
  There are opportunities to settle disputes, even when the parties’ relationship has soured. Settling the dispute can reduce costs and stress for all parties.
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- Letter to defendant’s solicitor making Calderbank offer
- Part 36 offers
  
  Part 36 of the Civil Procedure Rules provides for making an offer which will be treated as without prejudice except as to costs. This means that the fact that a Part 36 offer has been made, and the terms of such an offer, must not be communicated to the trial judge until the case has ...
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- If required - Part 36 offers
  - Enclosure - Part 36 offers
  - Letter to client suggesting making a Part 36 offer
  - Offer to settle (Section I Part 36)
  - Letter to other side's solicitor making Part 36 offer
  - Letter to client enclosing copy Part 36 offer made
  - Letter to client enclosing copy Part 36 offer received
- Settlement agreement
- Letter to client with draft settlement agreement
- Letter to court confirming settlement
- General form of judgment or order
- Library of example consent orders
  - Clause - Consent order for judgment notation of agreement
  - Clause - Consent order payment inclusive of costs
  - Clause - Consent order judgment in favour of one party
  - Clause - Consent order for proceedings to be dismissed with no order as to costs
  - Clause - Consent order for acceptance of lesser sum
- Letter to other side's solicitor sending draft consent order
- Letter to court filing draft consent order on settlement
H. First-tier Tribunal practice and procedure
- First-tier Tribunal (Property Chamber)
  - Reference cases
    
    The tribunal will deal with the application that has been made to the Land Registry. There is no jurisdiction to order the sale of a property unlike a court. Compensation may only be ordered in the very limited circumstances described in the final point below. The tribunal may:
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  - Rectification cases
    
    If a direct application is made by an affected party, the tribunal has the power to correct or set aside documents in the same way the High Court can. The documents which may be rectified or set aside, as noted in s 108(2) of the Land Registration Act 2002, are:
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  - Process
    
    Applications Reference cases will be passed to the tribunal by the Land Registry so no separate application form is required.
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  - Letter to tribunal filing application
  - Application to rectify or set aside documents
  - Applications and requests for case management or other interim orders
  - Application to withdraw a case
  - Application for permission to appeal a decision to the Upper Tribunal (Lands Chamber)
- Upper Tribunal (Lands Chamber)
  - Discharge or modification of restrictive covenants
    
    Under s 84 of the Law of Property Act 1925 the tribunal may discharge or modify restrictions arising under covenants or otherwise which affect freehold land, or leasehold land where the lease was granted for more than 40 years and at least 25 years have already expired. They only ...
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  - Letter to tribunal filing application
  - Application under Section 84 of the Law of Property Act 1925 to discharge or modify a restrictive covenant
  - Notice of objection to an application to discharge or modify a restrictive covenant
  - Applications and requests for case management or other interim orders
  - Application to withdraw a case
  - Appellant's notice (all appeals except small claims track appeals and appeals to the Family Division of the High Court)
  - Example court bundle index - Appeals from the Upper Tribunal (Lands Chamber)
  - Skeleton arguments
  - Chronology - Civil matters
I. Court practice and procedure
- Limitation issues
  
  If a matter is close to its limitation date, then it is possible to issue the proceedings but not serve them, as a protective measure. This will allow further instructions or investigations where required, or further negotiation, if possible. When doing so, the claim form needs to be sent for issue ...
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- If required - Limitation issues
  - Standstill agreement to extend limitation
  - Standstill agreement to suspend limitation
- If required - Part 8 of the Civil Procedure Rules
  - Preparing the Part 8 Claim Form
    
    The correct form is an N208 Claim Form (CPR Part 8). Rule 8.2 of the Civil Procedure Rules is clear that the claim form must include:
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  - Claim form (CPR Part 8)
  - Serving the issued Part 8 Claim Form
    
    If circumstances dictate the claim form can be issued without naming defendants. If so, it need not be served on anyone else: r 8.2A of the Civil Procedure Rules. Otherwise r 7.5 provides for service of the claim form, which is exactly the same as service of a Part 7 claim:
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  - Letter to defendant serving claim
  - Letter to defendant's solicitor serving claim
  - Acknowledgment of service by the defendant
    
    An N210B Acknowledgment of Service form should be filed by the defendant within 14 days of service of the claim form. The defendant does not file a defence to a Part 8 claim, so the rules as to the filing of statements of case, defence and reply do not apply here: r 8.9 of the Civil ...
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  - Evidence
    
    Under r 8.5, written evidence is to be filed with the claim form or acknowledgment of service, but either party may apply to the court for an extension of time to file and serve additional evidence. For more information see Evidence.
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  - Trial
    
    At the hearing the court may hear and dispose of the case or give directions. For more information see Final hearing.
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- Part 7 claims
  
  The issue of proceedings is governed by Part 7 of the Civil Procedure Rules, supplemented by Practice Directions 7A and 7E which deal with online claims and Part 56 and Practice Direction 56 which modifies Part 7 in the case of some of the more obscure claims. Most ...
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- Letter to client enclosing overview of court process
- Enclosure - Overview of the litigation process from a claimant's point of view
- Electronic filing
  
  Courts and tribunals are increasingly developing ways in which cases can be commenced and managed electronically. In the Royal Courts of Justice and Upper Tribunals, a digital electronic filing system called Courts Electronic Filing System (CE-filing) allows for the issue and management of cases ...
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- Online portals
  
  Damages Claims Portal The Damages Claims Portal is governed by Practice Direction 51ZB and is for legal practitioners to use when making a claim for damages.
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- Submit an application with MyHMCTS
- Paper proceedings
  
  Multiple claims and claimants Unlike an online claim r 7.3 of the Civil Procedure Rules permits any number of claims and claimants to be covered by a single paper claim form. The multiple claims which can be dealt with in this way are subject to the following criteria:
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J. Statements of case, filing and service
- Starting a claim online with MCOL
  
  See Practice Direction 7E for further information about starting a claim. Logging into MCOL opens a homepage that provides the option to start a new claim. To request a claim form, complete and submit the online form and pay the appropriate fee electronically.
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- Starting a paper claim
  
  In the County Court use the N1 Claim Form which requires the following information.
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- Letter to court filing documents
- Claim form (CPR Part 7)
- Service
  
  It is usual for the claimant to request that the court serves the claim. The claim will be issued within two working days from the date it is submitted online and the claimant will be posted a notice confirming the issue date. The issue date can also be checked online by accessing the claim ...
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- Claimant service
  
  It may be preferable for the claimant’s practitioner to effect service on behalf of the claimant but it should be noted that a failure to properly serve the claim form can be fatal to a claim. See Part 6 of the Civil Procedure Rules. If claimant service is required then the appropriate box ...
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- Letter to defendant serving claim
- Letter to defendant's solicitor serving claim
- Enclosures for letter serving claim - Response pack
  - Guidance for defendants replying to the claim form: N1C
  - Response pack
  - Admission (unspecified amount, non-money and return of goods claims)
  - Admission (specified amount)
  - Defence form
  - Defence and counterclaim (unspecified amount, non-money and return of goods claims)
  - Defence and counterclaim (specified amount)
- A defendant’s response
  
  The defendant’s options for responding are set out in Part 9 of the Civil Procedure Rules. They can:
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- Example content - Reply to defence
- Extension of time
  
  If the defendant needs more time to respond consent for an extension should be sought from the claimant before the time limits expire. Rule 2.11 provides some capacity for parties to agree on time limit variations between themselves. Rule 15.5 notes that the parties may agree to an ...
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- Letter to defendant's solicitor responding to request for extension of time
- Counterclaims and additional claims
  
  Part 20 of the Civil Procedure Rules sets out the requirements for counterclaims by the defendant against the claimant or a third party and other additional claims such as a defendant seeking contributions or indemnity from a third party. The overriding principle of the rules is to enable ...
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K. Interim applications
- Security for costs
  
  As part of a response the defendant may make an application to the court for security for costs under r 25.12 of the Civil Procedure Rules. This is an application to require the claimant to pay a sum of money into court for the purposes of protecting the defendant’s ability to claim their ...
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- Default judgment
  
  Where the defendant has failed to respond to a claim either at all, or in time, a claimant may apply for default judgment pursuant to Part 12 of the Civil Procedure Rules. This is a purely administrative procedure and does not require a court hearing: see Time limits for responding. The ...
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- Letter to client with advice about default judgment
- Request for judgment and reply to admission (specified amount)
- Summary judgment
  
  The court may give summary judgment when it believes that either the claimant has no real prospect of succeeding or the defendant has no real prospect of defending the claim, or that there is no other compelling reason why the case or issue should be disposed of at a trial. In these cases, the ...
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- Letter to client with advice about summary judgment
- Application notice
- General form of judgment or order
- Letter to court filing documents
- If required - Evidence
  - Letter to court filing written evidence
  - Letter to other side's solicitor serving written evidence
- Letter to client after summary judgment success
L. Case management and directions
- Transfer of claims
  
  Rule 26.2A enables the transfer of money claims to the defendant’s home court within the County Court if a court officer considers that the claim should be referred to a judge for directions or if the defendant is an individual. Otherwise, the claim will be transferred to any preferred hearing ...
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- Provisional allocation
  
  The parties will receive from the court a notice provisionally allocating the defended claim to one of four tracks. This occurs prior to the filing by the parties of their directions questionnaires. The four tracks are:
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- Directions questionnaires
  
  Directions questionnaires request information to assist the court in confirming the allocation of a case and enable active management of its progress through the court. Rule 26.8 provides that when deciding the track for a claim the court will consider a number of things including the ...
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- Directions questionnaire (small claims track)
- Directions questionnaire (fast track, intermediate track and multi-track)
- Enclosures for directions questionnaire - Disclosure and costs
  - Disclosure reports
    
    Rule 31.6 requires parties to a multi-track case to serve an N263 Disclosure Report verified by a statement of truth not less than 14 days before the first case management conference. Standard procedure is to do this when returning the directions questionnaire. The report is required ...
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  - Disclosure report
  - Costs budgets
    
    For most multi-track cases r 3.13 requires the filing of a costs budget. Unless the court otherwise orders costs budgets must be filed by the parties:
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  - Costs budget (Precedent H) and budget discussion report (Precedent R)
  - Precedent T - (budget variation summary sheet)
  - Using the automated app – Precedent H – Costs budget
  - Using the automated app – Precedent S – Bill of costs
- Letter to client confirming costs budget
- Letter to defendant's solicitor serving costs budget
- Directions
  
  Directions are given to parties by the court to assist trial preparation. They are intended to:
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- Small claims track standard directions
- Small claims track special directions
- Fast track standard directions
- Multi-track standard directions
- Listing questionnaire
  
  Also known as the pre-trial checklist, these apply to both fast, intermediate and multi-track cases where considered appropriate. Effectively a second part of the directions procedure they seek information from the parties to enable the court to list the case and fill any gaps that might emerge in ...
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- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Application notice
- General form of judgment or order
M. Disclosure and evidence
- Disclosure
  
  Disclosure is the stage in a case when parties share with the other side and the court the information they are basing their case on together with anything else that affects the case. Disclosure is in keeping with the overriding objective of the Civil Procedure Rules which is to enable the case to ...
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- Letter to client regarding disclosure
- Procedure for standard disclosure
  
  A point that catches the unwary is that the Civil Procedure Rules only provide a process for standard disclosure. If the non-standard disclosure is ordered by the court the judge must give directions on the procedure the parties are to follow. The procedure for standard disclosure is set out in ...
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- Standard disclosure
- Electronic documents questionnaire (Civil Procedure Rules Practice Direction 31B)
- Disclosure reports and other provisions for multi-track cases
  
  Disclosure reports are referenced above in relation to directions questionnaires: r 31.5(3)(4). A disclosure report should briefly describe what documents exist that may be relevant to the matter, their location, and the costs involved in disclosing the documents. The report is required to be ...
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- Disclosure report
- Letter to other side's solicitor enclosing disclosure report
- Letter to court filing documents
- Other disclosure provisions
  
  See Part 31 of the Civil Procedure Rules and Practice Direction 31A.
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- Letter to other side's solicitor requesting to inspect documents
- Evidence
  
  Under r 8.5, written evidence is to be filed with the claim form or acknowledgment of service, but either party may apply to the court for an extension of time to file and serve additional evidence. For more information see Evidence.
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- Library of evidence documents
  - Proof of evidence
  - Witness statement - Civil matters
  - Example content - Witness statement for civil matters
  - Exhibit sheet to witness statement - Civil matters
  - General form of affidavit
  - Clause - Affidavit for civil matters
  - Exhibit sheet for affidavits - Civil matters
  - Notice of intention to rely on hearsay evidence
  - Notice to admit facts
- Letter to court filing written evidence
- Letter to other side's solicitor serving written evidence
- Vulnerable witnesses and parties
  
  The overriding objective of the Civil Procedure Rules is to deal with cases justly and at a proportionate cost, thus ensuring all parties are on an equal footing and able to participate fully in proceedings. However, a vulnerable party or witness may impede that participation and also diminish the ...
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- Expert witnesses
  
  Evidence from an expert who has been instructed to give or prepare evidence on any relevant matter in which they are qualified is admissible, notwithstanding the usual rule against opinion evidence being admitted: s 3 of the Civil Evidence Act 1972. See Part 35 of the Civil Procedure ...
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- If required - Expert witnesses
  - Letter to expert requesting report
  - Letter to client enclosing expert's report
  - Letter to court filing expert's report
  - Letter to other side's solicitor serving expert's report
N. Final hearing and costs
- Preparation for the final hearing
  
  Small claims track cases After the case has been allocated to the small claims track and the court has issued the standard or any special directions and held any preliminary hearings under r 27.6, the court will fix a date for trial. The court will give the parties at least 21 days notice ...
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- Letter to counsel enclosing brief
- Brief to counsel - Civil matters
- Letter to client advising of court hearing date
- Letter to court advising client will not attend
- Letter to witness advising hearing date
- Small claims track standard directions
- Small claims track special directions
- Fast track standard directions
- Multi-track standard directions
- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Court bundles
  
  A court bundle is an indexed collection of documents that the parties will rely on during the hearing. The bundle includes all documents filed in court, leaving out any irrelevant documents, even if disclosed in the proceedings. See r 39.5 of the Court Procedure Rules and paragraph 27 of ...
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- County Court, High Court and Appeal Court - Trial bundle cover page
- County Court, High Court and Appeal Court - Trial bundle index
- Case summary
- Chronology - Civil matters
- Letter to other side's solicitor enclosing index to trial bundle
- Letter to other side's solicitor enclosing trial bundle
- Letter to court filing trial bundle
- Costs for final hearing
  
  Small claims track cases Costs on the small claims track are governed by r 27.14 which provides the following are recoverable:
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- Costs budget (Precedent H) and budget discussion report (Precedent R)
- Precedent T - (budget variation summary sheet)
- Using the automated app – Precedent H – Costs budget
- Using the automated app – Precedent S – Bill of costs
- Final hearing
  
  Preparation for the final hearing
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O. Finalising the matter
- Land Registry entries
  
  Where matters were registered with HM Land Registry but have now been changed, steps should be taken to amend the relevant entries and close unnecessary titles.
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- Letter to Land Registry enclosing AP1 to change the register and supporting documents
- Application to change the register
- Letter to client confirming registration and enclosing copy title and documents
- Settled matters
  
  Practitioners are required to advise the court immediately a matter which is before them is settled. Until a settlement agreement, consent orders or a notice of discontinuance is filed the parties must attend before the court if the matter is listed.
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- Letter to court filing documents
- Notice of discontinuance
- Advising the client
  
  The client should be advised of the outcome in writing and any element of the judgment that requires them to take action. Ensure they are aware of any costs consequences associated with not taking the action and thereby breaching the court order. If the client has been successful be sure to provide ...
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- Letter to client advising successful outcome and enclosing invoice
- Letter to client advising unsuccessful outcome with advice about appeal and enclosing invoice
- Letter to client finalising the matter
- Example invoice
- Invoice recital - Freehold property disputes - Acting for the claimant
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Freehold Property Disputes - Acting for the Defendant
Reference materials
- Electronic Signing and Witnessing
- Looking to the Future
- Article: Alternative dispute resolution
- Article: Costs actually
Overview and limitation periods

This publication focuses on civil claims relating to freehold properties including nuisance, trespass, boundary issues, breaches of covenants, and ownership disputes. Covering each stage in the process of dispute resolution, including litigation. Interestingly the process follows a broadly similar ...
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Summary of the process

The usual steps in acting for a defendant in a freehold property dispute matter are:
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A. Getting the matter underway
- File cover sheet - Freehold property disputes
- To do list - Freehold property disputes - Acting for the defendant
- First steps
- Retainer instructions - Freehold property disputes
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Freehold property disputes - Acting for the defendant
  - A summary of the property dispute resolution process
- Funding
  
  Standard retainer Under a standard retainer, the solicitor’s costs and all disbursements and expenses are paid to the solicitor as they fall due.
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- If required - Conditional fee agreements
  - Conditional fee agreement
    
    A conditional fee agreement is a no-win, no-fee arrangement based on the premise that a client is not responsible for the solicitor’s costs if the case is unsuccessful. Section 58(2)(a) of the Courts and Legal Services Act 1990 defines a conditional fee agreement as:
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  - Letter to client explaining barrister's fees
  - Conditional fee agreement
  - Letter to client giving informed consent to conditional fee agreement
  - Enclosure - Conditional fee agreements explained
  - Notice of funding of case or claim
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Nuisance
- Public nuisance
  
  Where the affected land is public, or the nuisance affects the public at large, the usual course is for the local authority to bring an action for statutory nuisance under the Environmental Protection Act 1990. Statutory nuisance differs from common law nuisance in that the local authority has a ...
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- Private nuisance
  
  Private nuisance relates to the lawful use of land which has negative consequences on a neighbour. A general duty of care is owed by one neighbour to another and each should do what is reasonably expected of them. This doctrine encompasses inactivity as a source of nuisance, for example where a ...
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- Alternatives to court action
  
  Abatement Where possible the opportunity to abate the nuisance should be explored. This may involve either party doing some work to rectify the situation. The cost of doing so could be claimed from a defendant who knew, or ought to have known about, the nuisance and was given the opportunity to ...
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- Pre-action conduct and protocols
  
  There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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- Defending proceedings
  
  Reasonable use given the nature and established pattern of uses of the location Whether the use is reasonable, notwithstanding that some nuisance is being caused by that use, is a matter of whether an objective bystander would consider it reasonable. The granting of planning permission does not in ...
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- Letter to court responding to claim
- Response pack
- Admission (unspecified amount, non-money and return of goods claims)
- Defence form
- Example content - Defence - Private nuisance
C. Trespass
- Criminal offence
  
  Refer to the Criminal guide when clients have been charged with an offence.
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- Civil claim
  
  A civil claim for trespass can be brought whether or not the claimant has suffered any damage or loss, unlike other causes of action. This reflects the history of the claim where it was assumed that trespass would eventually lead to a breach of the peace and early intervention was encouraged. In ...
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- Pre-action conduct and protocols
  
  There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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- Practice direction - Pre-action conduct and protocols
- Interim possession order
  - Interim possession order procedure
    
    Applications should be made in the County Court which has jurisdiction over the land in question. The relevant court can be found by using the Court and tribunal finder.
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  - If required - Defending interim possession proceedings
    
    Letter to court responding to claim
    
    Response pack
    
    Witness statement of the defendant to oppose the making of an interim possession order
    
    Defence and counterclaim (specified amount)
    
    Defence and counterclaim (unspecified amount, non-money and return of goods claims)
    
    Example content - Defence and counterclaim - Trespass
    
    Notice of funding of case or claim
  - If required - Setting aside an interim possession order
    
    Application notice
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
- Possession order
  - Possession order procedure
    
    Applications should be made in the County Court which has jurisdiction over the land in question. The relevant court can be found by using the Court and tribunal finder.
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  - Letter to court responding to claim
  - Response pack
  - Defence form
  - Example content - Defence and counterclaim - Trespass
  - Defence and counterclaim (specified amount)
  - Defence and counterclaim (unspecified amount, non-money and return of goods claims)
  - Notice of funding of case or claim
- Injunctions
  - Injunction procedure
    
    The application An application for an injunction may be made in the County Court.
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  - Letter to court responding to claim
  - Response pack
  - Defence form
  - Example content - Defence and counterclaim - Trespass
  - Defence and counterclaim (specified amount)
  - Defence and counterclaim (unspecified amount, non-money and return of goods claims)
  - Notice of funding of case or claim
D. Boundary issues
- Boundary issues
  
  The boundary between two properties is usually denoted by a red line on a Land Registry filed plan. In the absence of registration the line will be on the most recent plan forming part of the title deeds. However disputes arise for a number of reasons, including:
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- Boundary disputes protocol
  
  While it is not legally binding in the same way as the pre-action protocols set out in the Civil Procedure Rules The Boundary Disputes Protocol provides a best practice route to early resolution of boundary disputes. It is advisable for parties to consider alternative dispute resolution methods as ...
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- Letter to client proposing boundary disputes protocol
- Letter to other side's solicitor proposing boundary dispute protocol
- Letter to other side's solicitor with initial title documents
- Letter to other side's solicitor exchanging title evidence
- Letter to expert requesting report
- Settlement reached
  - Letter to client enclosing boundary agreement and transfer of part
  - Boundary agreement
  - Transfer of part registered title(s)
  - Letter to other side enclosing boundary agreement and transfer of part
  - Letter to lender enclosing boundary agreement and transfer of part
  - Letter to Land Registry enclosing AP1 to change the register and supporting documents
  - Application to change the register
- Settlement not reached
  - Letter to the other side’s solicitor suggesting alternative dispute resolution
  - Pre-action conduct and protocols
    
    There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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  - Practice direction - Pre-action conduct and protocols
- Adverse possession
  - Adverse possession
    
    Where land is occupied by someone other than the registered proprietor – or where there is no documentary evidence of the occupier’s unregistered ownership – adverse possession can be claimed by application to the Land Registry with appropriate evidence. The basic requirements are similar no matter ...
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  - Letter to claimant's solicitor asserting adverse possession claim of registered land and discussing next steps
  - Letter to claimant's solicitor asserting adverse possession claim of unregistered land and discussing next steps
  - Letter to Land Registry enclosing FR1 for first registration and supporting documents
  - First application - registration
  - Documents list
  - Statement of truth in support of an application for registration based upon adverse possession
  - Application for registration of a person in adverse possession under Schedule 6 to the Land Registration Act 2002
- Party walls
  
  ‘Party walls’ are defined in the Party Wall etc. Act 1996 as the parts of buildings which stand on boundaries. ‘Party fence walls’ are defined as walls which are not attached to buildings. This definition does not include wooden fences. Floors and ceilings between flats, party walls and party fence ...
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- Access to Neighbouring Land Act 1992
  
  This Act provides a building owner with a right to access an adjoining owner’s land to carry out work in specific circumstances. An access order may be applied for in accordance with s 1 of the Access to Neighbouring Land Act 1992 if access has been refused. The application should be made ...
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- Scaffolding licence
- Crane oversailing licence
E. Breaches of covenants
- Covenants
  
  Covenants are, in simple terms, promises made between parties. The performance of the covenant by one or more of the parties has some effect on the land involved. The land which benefits from the covenant is usually referred to as the dominant land and the land which bears the burden is referred to ...
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- Tax implications
  
  Chargeable interests for both stamp duty land tax and land transaction tax purposes are defined in s 48 of the Finance Act 2003 as ‘an estate, interest, right or power in or over land … or the benefit of an obligation, restriction or condition affecting the value of any such estate, interest, ...
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- Where restrictive covenants are found
  
  The date of the creation of the restrictive covenant is important when investigating a title to ascertain whether a restrictive covenant exists.
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- Application for an official search (not applicable to registered land)
- Official copies of register or plan - registration
- Historical register or title plan - registration
- Official copies of documents - registration
- Enforceability
  
  Deciding whether a restrictive covenant is enforceable is no easy matter and depends on a number of factors.
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- Alternatives to court action
  
  Abatement Where possible the opportunity to abate the nuisance should be explored. This may involve either party doing some work to rectify the situation. The cost of doing so could be claimed from a defendant who knew, or ought to have known about, the nuisance and was given the opportunity to ...
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- Letter to client enclosing deed of release of restrictive covenants
- Letter to other side enclosing deed of release of restrictive covenants
- Letter to lender enclosing deed of release of restrictive covenants
- Deed of release of restrictive covenants
- Letter to other side enclosing signed deed of release of restrictive covenants
- Letter to Land Registry with enclosure - General
- Notice - cancellation
- Unilateral notice - application to remove
- Unilateral notice - cancellation
- Upper Tribunal (Lands Chamber)
  
  An application can be made to the Upper Tribunal (Lands Chamber) for the modification or discharge of a restrictive covenant if one of the following grounds in s 84 of the Law of Property Act 1925 applies:
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- Application under Section 84 of the Law of Property Act 1925 to discharge or modify a restrictive covenant
- Court
  
  While there is no specific pre-action protocol relating to breaches of covenants the Practice Direction – Pre-action conduct and protocols serves as guidance. Proceedings may be started under Part 7 of the Civil Procedure Rules or under Part 8 if there are unlikely to be substantial ...
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- Practice direction - Pre-action conduct and protocols
F. Ownership disputes
- Ownership disputes
  
  A trust of the land is required to claim an interest if a person is not named as a legal owner on the title. A trust of land can be express, implied, resulting, or constructive and is governed by the Trusts of Land and Appointment of Trustees Act 1996. Although the Act came into force on ...
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- Letter to Land Registry with enclosure - General
- First registration caution
- Application for registration of a notice of home rights
- Application to enter a restriction
- Pre-action conduct and protocols
  
  There is no specific pre-action protocol relating to nuisance claims so the Practice Direction – Pre-action conduct and protocols serves as guidance. A letter of claim should be sent and alternative methods of dispute resolution explored with litigation as the last resort.
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- Practice direction - Pre-action conduct and protocols
G. Settling the matter
- Alternative dispute resolution
  
  A court has discretionary power to order parties in court proceedings to engage in alternative dispute resolution (ADR), James Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Mr Churchill claimed against his council for damage caused to his property by Japanese knotweed. ...
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- Letter to the other side’s solicitor suggesting alternative dispute resolution
- Cost consequences without ADR
  
  There are cost consequences if the case proceeds to litigation without ADR being considered. The Court of Appeal has clearly stated that ‘No dispute is too intractable to be mediated’: N J Rickard Limited v Holloway & Anor [2015] EWCA Civ 1631. The court’s position is summed up in Halsey v ...
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- Mediation service – Small claims track cases
  
  The Civil Procedure Rules provide for the referral of small claims track cases to the Small claims mediation service run by HM Courts & Tribunals Service: Practice Direction 51ZE – Small Claims Track Automatic Referral to Mediation Pilot Scheme. As with all forms of ADR this provides an ...
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- Letter to client with draft settlement agreement
- Mediation settlement agreement
- Settlement agreement
- Letter to other side's solicitor with settlement agreement
- Calderbank offers
  
  The case Calderbank v Calderbank [1975] 3 All ER 333 allowed, for the first time, a ‘without prejudice’ offer to be considered by the court when determining the liability for costs in a case. Calderbank letters, in which parties make an offer to settle the case, are commonly employed by parties in ...
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- Letter to claimant’s solicitor making Calderbank offer
- Part 36 offers
  
  Part 36 of the Civil Procedure Rules provides a format for making an offer which will be treated as without prejudice except as to costs. This means that the fact that a Part 36 offer has been made and the terms of such an offer must not be communicated to the trial judge until the case ...
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- If required - Part 36 offers
  - Enclosure - Part 36 offers
  - Letter to client suggesting making a Part 36 offer
  - Offer to settle (Section I Part 36)
  - Letter to other side's solicitor making Part 36 offer
  - Letter to client enclosing copy Part 36 offer made
  - Letter to client enclosing copy Part 36 offer received
  - Settlement agreement
  - Letter to client with draft settlement agreement
  - Letter to court confirming settlement
  - General form of judgment or order
- Library of example consent orders
  - Clause - Consent order for judgment notation of agreement
  - Clause - Consent order payment inclusive of costs
  - Clause - Consent order judgment in favour of one party
  - Clause - Consent order for proceedings to be dismissed with no order as to costs
  - Clause - Consent order for acceptance of lesser sum
- Letter to other side's solicitor sending draft consent order
- Letter to court filing draft consent order on settlement
H. Tribunal practice and procedure
- Tribunal practice and procedure
  
  Property disputes are more often heard by a tribunal than a court as it is usually more efficient and cost-effective than pursuing the matter through the County Court. Tribunals are orderly but informal, and parties often represent themselves.
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- First-tier Tribunal (Property Chamber)
  - Reference cases
    
    The tribunal will deal with the application that has been made to the Land Registry. There is no jurisdiction to order the sale of a property unlike a court. Compensation may only be ordered in the very limited circumstances described in the final point below. The tribunal may:
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  - Exact line of boundary - registration
  - Rectification cases
    
    If a direct application is made by an affected party, the tribunal has the power to correct or set aside documents in the same way the High Court can. The documents which may be rectified or set aside, as noted in s 108(2) of the Land Registration Act 2002, are:
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  - The process
    
    Applications Reference cases will be passed to the tribunal by the Land Registry so no separate application form is required.
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  - Letter to tribunal filing application
  - Application to rectify or set aside documents
  - Applications and requests for case management or other interim orders
  - Application to withdraw a case
  - Application for permission to appeal a decision to the Upper Tribunal (Lands Chamber)
- Upper Tribunal (Lands Chamber)
  - Upper Tribunal (Lands Chamber) practice and procedure
    
    The rules set out in the Upper Tribunal (Lands Chamber) Rules are often applied lightly with Practice Directions only published intermittently. The Upper Tribunal deals with appeals from the First-tier Tribunal (Property Chamber) as well as applications relating to:
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  - Discharge or modification of restrictive covenants
    
    Under s 84 of the Law of Property Act 1925 the tribunal may discharge or modify restrictions arising under covenants or otherwise which affect freehold land, or leasehold land where the lease was granted for more than 40 years and at least 25 years have already expired. They only ...
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  - Letter to tribunal filing application
  - Application under Section 84 of the Law of Property Act 1925 to discharge or modify a restrictive covenant
  - Notice of objection to an application to discharge or modify a restrictive covenant
  - Applications and requests for case management or other interim orders
  - Application to withdraw a case
  - Appellant's notice (all appeals except small claims track appeals and appeals to the Family Division of the High Court)
  - Example court bundle index - Appeals from the Upper Tribunal (Lands Chamber)
  - Skeleton arguments
  - Chronology - Civil matters
I. Court practice and procedure
- If required - Part 8 of the Civil Procedure Rules
  - Part 8 of the Civil Procedure Rules
    
    Part 8 of the Civil Procedure Rules provides for a shortened version of the normal Part 7 process and which is unlikely to involve a substantial dispute of fact. Cases where there is no significant dispute on the facts may be brought under Part 8 and Section B of Practice ...
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  - Acknowledgment of service (Part 8 costs-only claim)
- Court practice and procedure
  
  The County Court The same law and procedural rules apply whether the issue in dispute is a small claim or a large claim that may eventually head to the High Court.
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- Letter to client enclosing overview of court process
- Enclosure to client giving overview of court process - defendant
- Electronic filing
  
  Courts and tribunals are increasingly developing ways in which cases can be commenced and managed electronically. In the Royal Courts of Justice and Upper Tribunals, a digital electronic filing system called Courts Electronic Filing System (CE-filing) allows for the issue and management of cases ...
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- Money Claim Online
  
  The County Court online service known as Money Claim Online (MCOL) is the HM Courts & Tribunals Service internet-based service for claimants and defendants. Users register for an account with the secure credential platform called Government Gateway, which is known to all businesses who report ...
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- Paper proceedings
  
  Multiple claims and claimants Unlike an online claim r 7.3 of the Civil Procedure Rules permits any number of claims and claimants to be covered by one paper claim form. Multiple claims which can be dealt with in this way are however subject to the following criteria:
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- Service
  
  It is usual for the claimant to request that the court serves the claim. The claim will be issued within two working days from the date it is submitted online and the claimant will be posted a notice confirming the issue date. The issue date can also be checked online by accessing the claim ...
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- If required - Request by defendant for service of claim form
  - Application by the defendant for a service of claim form
    
    Rule 7.7(1) of the Civil Procedure Rules provides:
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  - Letter to claimant’s solicitor giving notice regarding service
J. Responding to a claim
- How to respond
  
  The defendant’s options for responding are set out in Part 9 of the Civil Procedure Rules. They can:
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- Letter to court responding to claim
- Response pack
- Defendant admits the claim
  
  A defendant may admit the claim by filing a N9A Admission (Specified Amount) form. If the defendant requires time to pay the amount admitted they will need to complete the parts of the form that require details of their assets, income and outgoings, and then make an instalment offer.
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- Admission (unspecified amount, non-money and return of goods claims)
- Admission (specified amount)
- Defendant admits part of the claim
  
  The defendant who admits only part of a claim will need to file a defence to the part of the claim that is not admitted in order to prevent judgment being awarded for the whole claim. Once the defence is filed the matter progresses to the case management phase. The claimant will have the option of ...
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- Defendant disputes the claim
  
  Defence Where the defendant wishes to dispute the claim in whole or in part they must file a defence within 14 days of service of the particulars of claim or within 28 days if they have first filed an Acknowledgment of Service.
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- Guidance for defendants replying to the claim form: N1C
- Defence form
- Defence and counterclaim (specified amount)
- Defence and counterclaim (unspecified amount, non-money and return of goods claims)
- If required - Extension of time
  - Extension of time
    
    If the defendant needs more time to respond consent for an extension should be sought from the claimant before the time limits expire. Rule 2.11 provides some capacity for parties to agree on time limit variations between themselves. Rule 15.5 notes that the parties may agree to an ...
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  - Letter to other side's solicitor requesting extension for time to serve
  - Application notice
  - Clause - Extension of time
  - Letter to court confirming extension agreed between the parties
- If required - Counterclaims and additional claims
  - Counterclaims and additional claims
    
    Part 20 of the Civil Procedure Rules sets out the requirements for counterclaims by the defendant against the claimant or a third party and other additional claims such as a defendant seeking contributions or indemnity from a third party. The overriding principle of the rules is to enable ...
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  - Letter to claimant serving additional claim
  - Letter to claimant's solicitor serving additional claim
  - Claim form (additional claims - CPR Part 20)
  - Application notice
K. Interim applications
- Security for costs
  
  As part of a response the defendant may make an application to the court for security for costs under r 25.12 of the Civil Procedure Rules. This is an application to require the claimant to pay a sum of money into court for the purposes of protecting the defendant’s ability to claim their ...
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- Clause - Wording for Form N244 Application Notice, box 3 - Security for costs
- Example content - Draft order - Security for costs
- Default judgment
  
  Where the defendant has failed to respond to a claim either at all, or in time, a claimant may apply for default judgment pursuant to Part 12 of the Civil Procedure Rules. This is a purely administrative procedure and does not require a court hearing. See Time limits for responding.
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- Setting aside or varying default judgment
  
  Although there is no right of appeal when judgment has been entered in default, the parties have the right under Part 13 of the Civil Procedure Rules to apply to vary or set aside the order. Under r 13.2 the court must set aside the order if it was wrongly entered, for example, it was ...
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- Clause - Draft order - Setting aside default judgment on the basis of a real prospect of defending the claim
- Summary judgment
  
  The court may give summary judgment when it believes that either the claimant has no real prospect of succeeding or the defendant has no real prospect of defending the claim, or that there is no other compelling reason why the case or issue should be disposed of at a trial. In these cases, the ...
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- Letter to client with advice about summary judgment
- Application notice
- General form of judgment or order
- Letter to court filing documents
- Letter to client after summary judgment success
L. Case management and directions
- Transfer of claim
  
  Part 26.2A enables the transfer of money claims to the defendant’s home court within the County Court if a court officer considers that the claim should be referred to a judge for directions or if the defendant is an individual. Otherwise, the claim will be transferred to any preferred hearing ...
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- Provisional allocation
  
  The parties will receive from the court a notice provisionally allocating the defended claim to one of four tracks. This occurs prior to the filing by the parties of their directions questionnaires. The four tracks are:
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- Directions questionnaires
  
  Directions questionnaires request information to assist the court in confirming the allocation of a case and enable active management of its progress through the court. Rule 26.8 provides that when deciding the track for a claim the court will consider a number of things including the ...
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- Directions questionnaire (small claims track)
- Directions questionnaire (fast track, intermediate track and multi-track)
- Enclosures for directions questionnaire
  - Disclosure reports
    
    Rule 31.6 requires parties to a multi-track case to serve an N263 Disclosure Report verified by a statement of truth not less than 14 days before the first case management conference. Standard procedure is to do this when returning the directions questionnaire. The report is required ...
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  - Disclosure report
  - Costs budgets
    
    For most multi-track cases r 3.13 requires the filing of a costs budget. Unless the court otherwise orders costs budgets must be filed by the parties:
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  - Costs budget (Precedent H) and budget discussion report (Precedent R)
  - Precedent T - (budget variation summary sheet)
  - Using the automated app – Precedent H – Costs budget
  - Using the automated app – Precedent S – Bill of costs
- Letter to client confirming costs budget
- Directions
  
  Directions are given to parties by the court to assist trial preparation. They are intended to:
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- Small claims track standard directions
- Small claims track special directions
- Fast track standard directions
- Multi-track standard directions
- Listing questionnaire
  
  Also known as pre-trial checklists, these apply to fast, intermediate and multi-track cases where considered appropriate. Effectively a second part of the directions procedure they seek information from the parties to enable the court to list the case and fill any gaps that might emerge in getting ...
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- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Application notice
- General form of judgment or order
M. Disclosure and evidence
- Disclosure
  
  Disclosure is the stage in a case when parties share with the other side and the court the information they are basing their case on together with anything else that affects the case. Disclosure is in keeping with the overriding objective of the Civil Procedure Rules which is to enable the case to ...
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- Letter to client regarding disclosure
- Procedure for standard disclosure
  
  A point that catches the unwary is that the Civil Procedure Rules only provide a process for standard disclosure. If the non-standard disclosure is ordered by the court the judge must give directions on the procedure the parties are to follow. The procedure for standard disclosure is set out in ...
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- Standard disclosure
- Electronic documents questionnaire (Civil Procedure Rules Practice Direction 31B)
- Disclosure reports and other provisions for multi-track cases
  
  Disclosure reports are referenced above in relation to directions questionnaires: r 31.5(3)(4). A disclosure report should briefly describe what documents exist that may be relevant to the matter, their location, and the costs involved in disclosing the documents. The report is required to be ...
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- Disclosure report
- Letter to other side's solicitor enclosing disclosure report
- Other disclosure provisions
  
  See Part 31 of the Civil Procedure Rules and Practice Direction 31A.
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- Letter to other side's solicitor requesting to inspect documents
- Evidence
  
  Under r 8.5, written evidence is to be filed with the claim form or acknowledgment of service. Either party may apply to the court for an extension of time to file and serve additional evidence.
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- Library of evidence documents
  - Proof of evidence
  - Witness statement - Civil matters
  - Example content - Witness statement for civil matters
  - Exhibit sheet to witness statement - Civil matters
  - General form of affidavit
  - Clause - Affidavit for civil matters
  - Exhibit sheet for affidavits - Civil matters
  - Notice of intention to rely on hearsay evidence
  - Notice to admit facts
- Letter to court filing documents
- Letter to court filing written evidence
- Letter to other side's solicitor serving written evidence
- If required - Expert witnesses
  - Expert witnesses
    
    Evidence from an expert who has been instructed to give or prepare evidence on any relevant matter in which they are qualified is admissible, notwithstanding the usual rule against opinion evidence being admitted: s 3 of the Civil Evidence Act 1972. See Part 35 of the Civil Procedure ...
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  - Letter to expert requesting report
  - Letter to client enclosing expert's report
  - Letter to court filing expert's report
  - Letter to other side's solicitor serving expert's report
N. Final hearing and costs
- Letter to counsel enclosing brief
- Brief to counsel - Civil matters
- Letter to client advising of court hearing date
- Letter to court advising client will not attend
- Letter to witness advising hearing date
- Small claims track cases
  
  Directions questionnaire form N180 applies to small claims track cases. It is a simplified version of the questionnaire for the other tracks and is concerned with matters such as:
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- Small claims track standard directions
- Small claims track special directions
- Fast, intermediate and multi-track cases
  
  Directions Questionnaire form N181 applies to fast, intermediate and multi-track cases. It covers the following matters:
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- Fast track standard directions
- Multi-track standard directions
- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Court bundles
  
  A court bundle is an indexed collection of documents that the parties will rely on during the hearing. The bundle includes all documents filed in court, leaving out any irrelevant documents, even if disclosed in the proceedings. See r 39.5 of the Civil Procedure Rules and paragraph 27 of ...
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- If required - Defendant bundle
  - County Court, High Court and Appeal Court - Trial bundle cover page
  - County Court, High Court and Appeal Court - Trial bundle index
  - Case summary
  - Chronology - Civil matters
  - Letter to other side's solicitor enclosing index to trial bundle
  - Letter to other side's solicitor enclosing trial bundle
  - Letter to court filing trial bundle
- Letter to other side's solicitor responding to draft court bundle index
- Costs for the final hearing
  
  Small claims track cases Costs on the small claims track are governed by r 27.14 which provides the following are recoverable:
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- Costs budget (Precedent H) and budget discussion report (Precedent R)
- Precedent T - (budget variation summary sheet)
- Using the automated app – Precedent H – Costs budget
- Using the automated app – Precedent S – Bill of costs
- Final hearing
  
  Preparation for the final hearing
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O. Finalising the matter
- Land Registry entries
  
  Where matters were registered with HM Land Registry but have now been changed, steps should be taken to amend the relevant entries and close unnecessary titles.
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- Letter to Land Registry enclosing AP1 to change the register and supporting documents
- Application to change the register
- Letter to client confirming registration and enclosing copy title and documents
- Settled matters
  
  Practitioners are required to advise the court immediately a matter which is before them is settled. Until a settlement agreement, consent orders or a notice of discontinuance is filed the parties must attend before the court if the matter is listed.
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- If required - Discontinuance
  - Letter to court filing documents
  - Notice of discontinuance
- Advising the client
  
  The client should be advised of the outcome in writing and any element of the judgment that requires them to take action. Ensure they are aware of any costs consequences associated with not taking the action and thereby breaching the court order. If the client has been successful be sure to provide ...
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- Letter to client advising successful outcome and enclosing invoice
- Letter to client advising unsuccessful outcome with advice about appeal and enclosing invoice
- Letter to client finalising the matter
- Example invoice
- Invoice recital - Freehold property disputes - Acting for the defendant
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

Freehold Property Disputes

This publication guides practitioners through freehold property dispute resolution, including shared freehold and freehold covenant issues.

Overview

Precedents in this publication include:

2 Matter Plans Included

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