FAQ

Adverse Possesion

Boundary Disputes

Building Disputes

Contesting a Will and Inheritance Disputes

Wills and Probate

Professional Negligence

Adverse Possesion

What is adverse possession?

Adverse possession is the term used when a person becomes the legal owner of a piece of land that they did not originally own through their use or possession of the land. The person(s) claiming ownership of the land is/are known as a squatter(s).

How do I acquire land by adverse possession?

The rules concerning adverse possession are complicated and the facts of how the land has been possessed are often vital. If the land is unregistered possession can be acquired over a period of time, normally more than 12 years. If the land is registered possession can be acquired over a period of time, normally more than 12 years, where the period of time occurred before 13 October 2003. If the land is registered and the squatter hasn’t acquired 12 years of possession before 13 October 2003 then the Land Registration Act 2002 will apply.

What are the rules of adverse possession under the Land Registration Act 2002?

Under the Land Registration Act 2002 a squatter will need to be in possession of a piece of land for a period of 10 years or more, at which point, an application can be made to the Land Registry for the squatter to become the registered owner. After the application has been made the Land Registry will notify the registered owner who will be given the opportunity to oppose the application. If the application is opposed by the registered owner (sometimes known as the paper owner) then the application will be rejected unless it can be demonstrated that:

It would be unconscionable because of an equity by estoppel for the registered owner to seek to dispossess the squatter and in the circumstances the squatter ought to be registered as the owner
The squatter is for some other reason entitled to be registered as the owner, or
The squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.

If the application is rejected but the squatter remains in possession of the land for a further two years the squatter can reapply for possession which will be granted even if the application is opposed. If the application is not opposed by the registered owner, the squatter will become the registered owner.

If the application is not opposed by the registered owner, the squatter will become the registered owner.

What must you show to acquire land by adverse possession?

You have factual possession of the land;
You have the necessary intention to possess the land;
That possession is without the owner’s consent; and
The same is true of any predecessors through whom you claim were in possession of the land during the 10 or 12 years (see comments elsewhere as to length requirements) prior to the date of the application

What are examples of an intention to possess land?

Fencing off land
Barring access to the land to other people including the land owner
Repairing damaged fences
Trimming hedges
Clearing ditches
Ploughing or fertilising land
Granting a licence for others to occupy the land

What are our costs for making an adverse application?

It is entirely reasonable for clients and potential clients to want to know the likely costs that will be incurred in making an adverse possession application. Occasionally clients are surprised to hear what we expect the costs will be. We handle a significant number of these applications each year and so based on that experience including different types of such application both relating to residential, commercial and agricultural land we have a good feel for the time we expect an application to take. As this is a specialist area many firms handle these applications rarely, if ever. We strongly recommend that potential clients when shopping around ask firms they contact how many of these cases they handle per year and, indeed, whether they are currently carrying out other such work.

From time to time we hear that individuals have been given an estimate that making an adverse possession application can be done in two/three hours’ of work. Our view is that a realistic time estimate is ten/fifteen hours’ worth of work, and that it is simply impossible to carry out such an application in a proper manner in two to three hours.

Boundary Disputes

What is the Party Wall Act 1996?

The Party Wall Act 1996 helps prevent and resolve disputes over party walls, boundary walls and excavations near neighbouring buildings. Persons proposing work covered by the Act must give adjoining neighbours notice of their intentions. Where adjoining neighbours disagree with what is proposed the Act provides a mechanism for resolving disputes.

How can I work out who owns Land?

When trying to work out who owns land your first point of contact should be the Land Registry. The Land Registry keeps electronic registers that show the owner of a property or piece of land on a specified date.

It is rare that the Land Registry keeps information on where exact a boundary line runs. If you have a dispute over a boundary line contact us to see how we can help.

Building Disputes

What standard of work can I expect from my builder?

If you entered into your contract with your builder after 1 October 2015, the contract will be covered by the Consumer Rights Act 2015. Under that Act any building or decorating work must be completed with reasonable care and skill. This doesn’t mean perfection but you can expect the standard to be that of a reasonably competent builder. The builder must also use materials that are of satisfactory quality and fit for their purpose.

Can my builder charge me extra after I have accepted his initial quote?

You will need to check your paperwork to see whether you were given a quote or just an estimate. If you have a quote a bulider cannot charge more than the quote unless they have told you that they need to do extra work and you agree to it, or if it is obvious that the price in the quote was a mistake.

If you have an estimate and the final bill is a lot more, you can dispute it. The Consumer Rights Act states that the price of any work has to be reasonable. What is a reasonable price is not defined in the Act and it will differ depending on the facts of each contract.

What can I do if my builder continually delays in completing the job?

Under the Consumer Rights Act, any work must be completed within a reasonable time unless a specific timescale has been agreed. Failure to do this will entitle you to reduction in the price of the work or potentially it could give you the right to terminate the contract.

It is rare that the Land Registry keeps information on where exact a boundary line runs. If you have a dispute over a boundary line contact us to see how we can help.

Contesting a Will and Inheritance Disputes

Contesting a Will?

There are a number of reasons why the validity of a Will may be questioned or a why a claim may be made against an Estate. Some common reasons are listed below:

A person making a Will may have been coerced into making the Will against their wishes;
A Trustee may have acted negligently causing loss to those due to inherit from the Trust;
Disputes between beneficiaries of a Will;
The Will may not have been signed in accordance with the law;
A lack of necessary mental capacity when writing a Will;
A fraudulent Will

If you wish to contest a Will then please contact us to find out how we can help.

How to contest a Will

If you have an issue concerning a Will or you wish to contest a Will then please contact Hugh Davey on 0333 344 5012 to find out how we can help.

Contesting a Will after Probate

A Will can be contested after probate but for practical reasons it is always better to contest a Will before probate is issued to avoid the distribution of the assets of the estate.

If you wish to challenge a will a Caveat can be put on the estate that prevents probate being issued, this can provide time to allow a Solicitor to investigate your claim.

Wills and Probate

What is a will?

A declaration (almost always in writing apart from very exceptional circumstances) setting out who will administer your estate (the executor(s)) and who is to inherit your money and other assets. It can include your wishes like whether you want to be buried or cremated. Making a Will can these days be done in many different ways including the wide range of online will services available.

What is a Codicil?

A legal document that amends a Will.

What is an Executor?

The person(s) who has/have been set out in someone’s Will to act as Executor. Their role broadly is to collect in the assets of the deceased person, pay off liabilities and then to distribute the estate in accordance with the Will. This role is often carried out by a Solicitor.

Can Solicitors be Executors?

Yes, they can and are often appointed as such.

What is an Administrator?

If someone leaves no Will, or an leaves an invalid Will, then someone needs to sort out the deceased person’s financial affairs and that person is described as the “Administrator(s)”.

What is the deceased person’s “estate”?

This is the assets that they have such as house, car, caravan, cash etc. and any income received after death less liabilities such as tax, bills etc.

What is Probate?

If you are named as an executor in a Will then you may need to apply for a Grant of Probate. A Grant of Probate is an official document obtained from the Probate Registry that allows an executor to distribute the deceased’s estate.

If following a person’s death there is no Will the estate will pass under Intestacy Rules.

What is a Grant of Probate?

What is contentious probate?

Contentious probate occurs when a challenge is made to a Will or the administration of an estate.

What is a Living Will?

A Living Will is a written document that sets out your wishes, concerning your health care and how you want to be treated, should you no longer be able to take such decisions due to serious illness or incapacity.

What is meant by Last Will and Testament?

This is old fashioned language simply meaning what we today mean is a Will.

Do I need to use a solicitor to sort out someone’s estate?

It is certainly not obligatory. If the terms of the Will are simple and the size of the estate is small then often there is no need. However, for larger estates where there is tax to be paid and the terms of the Will are complex then it may in the long run save you a great deal of time, effort and possibly expense to employ a solicitor to help you. It is also worthwhile remembering that all Solicitors have to have insurance to deal with mistakes they make.

How do I write a Will?

These days there are lots of different avenues available from buying a simple form from a bookshop, using Will writing services online to the traditional route of using a Solicitor. For certainty that everything is right and bearing in mind that Solicitors have to have insurance to cover mistakes we always suggest that if a person’s financial affairs are at all complicated they use a solicitor.

Is a DIY Will valid?

Yes. But, apart from in a few exceptional circumstances, the Will must comply with the formalities as set out in Section 9 of the Wills Act 1837 as amended by Section 9 of the Administration of Justice Act 1982. Please note a Will does not need to be in legal language! However, whilst a Will may be valid in respect of the formalities such as that it is in writing it can be declared invalid because, say, the person making the Will (the Testator) lacked mental capacity. It is because of these complexities we always recommend people take legal advice before making a Will.

Do I need to have anyone witness my Will?

Yes, two people need to do this. The legal requirements as to how a Will has to be witnessed are strict. It is best to take legal advice on this subject rather than risking the Will being invalid because the correct formalities have not taken place.

Do my spouse and I need to make Wills? Surely when one of us dies the other will inherit everything anyway?

If your estate is reasonably large (that is the net estate is over £250,000) then the Intestacy Rules set out that the surviving spouse will not inherit everything. But remember taking account of escalating house prices there are a great many people who have an estate over this sum who would not in any way consider themselves to be rich. And anyway it will make the whole process easier and you can set out your wishes such as whether you want to be buried or cremated. So yes in almost all cases it is sensible to make a Will. Also your finances may change over time.

What are the Intestacy Rules?

If someone dies without making a Will there is a set of rules laid down by Parliament that set out which family members get what.

Unclaimed Estates – what happens to Estates where there isn’t a Will and next of kin can’t be found?

The money and assets in the Estate pass to the Crown. Hardly the result that most of us would want for our Estate; however small! More details can be found on the Treasury Solicitor’s Bona Vacantia (literally meaning vacant or empty goods) website. See www.bonavacantia.gov.uk.

Professional Negligence

What is professional negligence?

Professional negligence is when a professional person, such as a solicitor or an accountant, breaches a duty of care owed to an individual or business leading to loss or damage. There is often a legal contract existing also. It can be an extremely complex area of law. If you believe you have a claim against a professional then contact our Managing Partner, Hugh Davey to discuss how we can help you.

What is a duty of care?

A duty of care is a legal obligation owed to another. The classic situation is when someone employs a professional person such as a solicitor, surveyor or accountant. It requires that a person adhere to a reasonable standard of care when carrying out the work they have been employed to do.

What is the tort of negligence?

An act of negligence arises when a person fails to meet the level of care reasonably expected of a person in similar circumstances.

What is public liability insurance?

Public liability insurance is a form of insurance taken out by businesses to provide cover against claims made by members of the public.

What is indemnity insurance?

Professional indemnity insurance is a form of insurance that covers professional people, such as solicitors, surveyors, architects and accountants, for negligence/breach of contract in the course of their profession.

Mediation

What is Mediation?

Mediation is a form of alternative dispute resolution. It is a voluntary, non-binding and without prejudice process, in which an impartial third party, the mediator, helps to bring the parties to a mutually agreed settlement.

Why Mediation?

Litigation can often be expensive and stressful and often cause irreparable damage to the parties’ relationship. Mediation is normally a less stressful process and offers a cheaper alternative outside the litigation process.

In over 85% of cases settlement is achieved on the day. Where a settlement is not reached on the day the issues in dispute are normally narrowed and it is not uncommon for these cases to settle shortly after.

How does the mediation process work?

The mediation will normally begin with a joint session where both parties will give a short statement concerning the dispute. The parties will then separate into individual rooms and private sessions will begin with the mediator. The mediator will move from one party to another to try and negotiate a settlement of the dispute. The mediator’s role is purely to help negotiate a settlement; he/she will not make judgments based on the information provided.

What if the opposition doesn’t want to mediate?

Mediation is an entirely voluntary process; if one party doesn’t wish to mediate they are not obliged to do so. However the court may impose costs consequences of not doing so.

What cases are suitable for mediation?

Mediation can be used in virtually all cases including commercial disputes, professional negligence, boundary disputes and contested Wills.

How much does mediation cost?

Costs can vary depending on the duration, location and complexity of the dispute. To discuss your needs please contact our Managing Partner, Hugh Davey, on 0333 344 5012.

Who pays for the mediation?

Upfront the costs of mediation will normally be borne equally between the parties, but as part of the process the costs as a whole are open for negotiation.

Where will the mediation take place?

The mediation will take place at a venue mutually agreed between the parties. This can be a neutral venue.

Can the mediator impose a settlement?

Unlike litigation the mediator has no power whatsoever to impose a settlement on the parties. Any settlement reached will be through the parties’ agreement.

What is the role of the mediator?

The role of the mediator is to guide the discussion and clarify the issues in dispute. The mediator is not there to make a judgment, form a view or impose a decision but he/she may play devil’s advocate by asking difficult questions.

Can an opponent use mediation as a way to obtain information about my case?

As the mediation process is a voluntary process you are in control of what information you disclose. The mediation will also be without prejudice which means any offers to settle made during the process cannot be relied on during litigation.

Who chooses the mediator?

The mediator is decided by both parties. Generally a short list of recommended mediators will be put forward by the parties’ legal representatives and one chosen on the grounds of expertise relevant to the dispute.

Partnership Law

What is a partnership?

A partnership is automatically created when two or more people set up a business with a view to making a profit. All partnerships are subject of the Partnership Act 1890 unless varied by a partnership agreement, which normally would be in writing.

What is a Limited Liability Partnership (LLP)?

An LLP is often referred to as a half-way point between a partnership and a company. Like a company an LLP is a legal person in its own right. It can buy and sell property, sue or be sued and do anything a natural person can do. Members of an LLP enjoy limited liability akin to that enjoyed by shareholders but also can benefit from the tax advantages of a partnership.

What is the Partnership Act 1890?

The Partnership Act is a set of rules that all partnerships are subject to unless a partnership agreement is created.

What is a partnership agreement?

A partnership agreement sets out how the partnership will be run on a day to day basis. It is a custom made set of rules that can cover partner equity, responsibilities, retirement, and expulsion. If there is no partnership agreement, or the partnership agreement is silent on a particular matter, the Partnership Act 1890 will apply.

Is there a maximum number of partners allowed in a partnership?

Under the Partnership Act 1890 there is no limit on the number of partners allowed in a partnership.

What happens if the number of partners falls below two?

A partnership will dissolve if it has less than two partners.

What is a silent partner?

A silent partner’s involvement in a partnership is normally limited to providing capital to the business. They will not generally participate in management meetings or be involved in the day to day running of the business. A silent partner may also be known as a limited partner since liability will typically be limited to the amount invested in the partnership.

Can a partner be expelled?

This will depend on whether the partnership has a partnership agreement and the terms of the agreement. If there is no partnership agreement a partner cannot be expelled.

I am a partner, can I leave the partnership?

This will depend on whether the partnership has a partnership agreement and the terms of the agreement. If there is no partnership agreement it is not possible for a partner to leave the partnership. In such circumstances the partnership has to be dissolved. The remaining partners could then reform the partnership.

I am a partner, how do I retire from the partnership?

This will depend on whether the partnership has a partnership agreement and the terms of the agreement. If there is no partnership agreement it is not possible for a partner to retire from the partnership. In such circumstances the partnership has to be dissolved. The remaining partners could then reform the partnership.

I am a partner, what happens to partnership debt if I leave the partnership?

If there is no partnership agreement it is not possible for a partner to leave the partnership without dissolving the partnership. In such circumstances each partner is joint and severally liable for all debts of the partnership.

Where a partnership agreement exists that allows a partner to leave, the rights of third parties against you and continuing partners for partnership debt are unaffected by your cessation. It is advisable to ensure that the partnership agreement provides indemnities for partnership debt prior to cessation.

I have a dispute with my business partner what can I do?

If you have a dispute with a business partner contact our specialist partnership dispute lawyers on 0333 344 5012 to discuss how we can help.

Shareholders

What is a shareholder?

A shareholder is a person, company or organisation that holds at least one share in a company. Shareholders are owners of the company and they have certain rights, for example directors must get shareholders to vote and agree on changes to the company.

What is a director?

A director is responsible for the day to day management of a company’s business.

Can I be a shareholder and a director of a company?

Yes, you can be both a shareholder and a director of a company. In most companies the directors are also shareholders.

What are the Articles of Association?

The Articles of Association are a single document, open for public inspection, which set out a company’s internal workings. A company may have model articles or bespoke articles specific to the company. If no articles are registered then model articles will apply by default.

What are the Model Articles?

The model articles are a default set of articles that apply in the absence of other articles.

What is a Shareholders’ Agreement?

A shareholders’ agreement binds members in matters beyond the scope of a company’s articles and can be used to impose extra obligations on its members. It is a private document that is not open for public inspection.

Can a Shareholders’ Agreement be altered?

A shareholders’ agreement cannot be altered without unanimous consent of all those who are party to it.

Injunctions

What is an injunction?

An injunction is a court order that prevents someone from doing something or compels someone to do something. There are five types of injunctions that can be obtained. Please see the Injunctions section on our website for further details.

How can I obtain an injunction?

Injunctions can be complex and expensive to obtain but extremely valuable for when you need to quickly stop someone from doing something. If you require an injunction contact our Managing Partner, Hugh Davey on 0333 344 5012 to discuss how we can help.