Scotland - Boundary dispute - with a Difference

Scotland - Boundary dispute - with a Difference

Postby justjohn » Tue Oct 13, 2015 11:40 pm

I purchased a property last year. After looking at deeds there was an 8 foot difference in an extension that a neighbour had built the previous year(before I purchased). Also they had put drainage across our land.

I had informed them they admitted there was encroachment. I said sort the drainage quickly ill sign the land over. 3 months later they never sorted it.

I then get a lawyer involved again the admitted encroachment and said they would pay all my reasonable legal costs . They then said a few months later they could not afford to move drainage in a timely manner.(lawyer has stated it will be time consuming and costly to take them to court)

So encroachment admitted. Deeds and photos prove encroachment.

Can they be taken to the Scottish small claims court? Under 2 separate claims one for encroachment of there extension for 5k and one further claim for costs removing there pipe work and drains from our land.
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Tue Oct 13, 2015 11:55 pm

Hi justjohn,

here's a copy of the Gardenlaw disclaimer you've just read before making your first post:

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Kind regards, Mac
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Wed Oct 14, 2015 12:00 am

Yes I new this was mainly E&W. Hence I made it clear I was in Scotland.
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Re: Scotland - Boundary dispute - with a Difference

Postby Collaborate » Wed Oct 14, 2015 8:15 am

My knowledge of the law is restricted to England only - but there's no reason to think that in relation to my response, the situation in Scotland will be any different.

If there is a small claims court in Scotland I think it highly unlikely that it will deal with disputes over land. That, in E&W, would be dealt with by a higher type of hearing.

By the way, in E&W there is no such thing as a small claims court, It is the small claims procedure, and takes place within the county court. District Judges deal with most CC claims, including the small claims.

Here is a link to a guide to the Scottish small claims procedure. http://www.scotcourts.gov.uk/taking-action/small-claims Land is heritable property. I think you would be unwise to limit your claim, and should apply to court for possession. The Scottish procedure is not geared towards people acting for themselves (nor is the E&W system beyond the small claims procedure) so I suggest you get some legal advice. If it's as clear cut as you suggest then surely you'd expect an order for costs?

Check your home insurance for the legal cover it gives you.
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Re: Scotland - Boundary dispute - with a Difference

Postby COGGY » Wed Oct 14, 2015 11:36 am

Hi

I am a little confused about this. What did the Vendor tell you about the matter when you purchased?

Regards Coggy
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Wed Oct 14, 2015 7:08 pm

Vendor - property was bought at auction, vendor is not responsible. The property is a commercial property.(Deeds are 100% good and clean). Permission was never given for the encroachment. Encroachment is not disputed. (if permission was given then I could approach the vender, but that's not the case)

Because the encroachment is by a charity / trust our solicitor has said judge may not award costs to us.

if we do take them to court the trustees may resign, then we would take the trust to court. Which would be time consuming due to there being no one to represent the trust(well that was my understanding from the solicitor). If the trust was successfully taken to court the building would be sold.

Our solicitor has said taking them to court will be costly and time consuming.

I am just trying to do a bit of digging regarding my options.
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Re: Scotland - Boundary dispute - with a Difference

Postby mr sheen » Wed Oct 14, 2015 7:38 pm

Seems pretty clear...your solicitors have advised you.
Don't see what anyone here can add to the advice of your solicitors to a buyer whose responsibility it was to research the property fully before bidding or buying at auction and getting it 'as is'.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Wed Oct 14, 2015 7:47 pm

I was fully aware of the encroachment of the extension, hence my stance on giving them the land.

However I was not aware of the drainage issue, which is my main issue.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Wed Oct 14, 2015 8:03 pm

the solicitor has suggested I pay to get the drains moved and get a bond? from the trustees that they will be liable to pay me back. this sticks in my throat as I am already giving them land free. And in my opinion it just means I have someone else to sue.

I still have to go back to my solicitor regarding what to do next. My solicitor has given the trustee's a healthy discount on the legal fees. Although they have agreed to pay his costs, we have threatened to get the fee's independently assessed(eg no discount) they have pled poverty and said it will just drag things out.

We have also aske for a schedule/ action plan. But again we have had nothing from them.
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Re: Scotland - Boundary dispute - with a Difference

Postby stufe35 » Wed Oct 14, 2015 8:15 pm

mr sheen wrote:Seems pretty clear...your solicitors have advised you.
Don't see what anyone here can add to the advice of your solicitors to a buyer whose responsibility it was to research the property fully before bidding or buying at auction and getting it 'as is'.


So you knew about The extension but didn't know about the drains...Mr sheen has said it...it was your responsibility to research the property....you have bought it as is.
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Wed Oct 14, 2015 8:22 pm

Hi justjohn,

one for encroachment of there extension for 5k

where do you get the 5k from? (it doesn't cost that much to transfer the land and that is what has been agreed)

one further claim for costs removing there pipe work and drains from our land

have you removed their pipe work and drains from your land?

Kind regards, Mac
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Wed Oct 14, 2015 8:34 pm

MacadamB53 wrote:Hi justjohn,

one for encroachment of there extension for 5k

where do you get the 5k from? (it doesn't cost that much to transfer the land and that is what has been agreed)

one further claim for costs removing there pipe work and drains from our land

have you removed their pipe work and drains from your land?

Kind regards, Mac


the solicitor originally agreed to sign over the land PROVIDED they moved the drains in a timely manner and responded within 14 days. the value of the land is 5k+

no i have not removed the drains as yet however i may have too, either with agreement from the trustees via a payment plan. Or may remove drains if trustees resign(would have to see solicitor to find out the legalities of doing that)

i do not think the small claims court can be used for land disputes.
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Re: Scotland - Boundary dispute - with a Difference

Postby Roblewis » Wed Oct 14, 2015 9:29 pm

Is the drain simply serving the trusts property ? If it is I would simply accidentally block it off. I presume they had the money to divert it when the extension was built.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Wed Oct 14, 2015 10:02 pm

Roblewis wrote:Is the drain simply serving the trusts property ? If it is I would simply accidentally block it off. I presume they had the money to divert it when the extension was built.


I would say that was criminal damage the trustees could have me prosecuted, However I am not sure of the legal stance if I block it/rip it up if the trustees have resigned(the building would have no representative)


when extension was built they were sloppy and thought the land belonged to them. They never checked any deeds and there architect never checked. I understand how they may have thought the extra land for extension was there's. however the extra 2-3 ft they have come across with there drains just smacks of total disregard for land boundaries.

Thing is, I know its stupid but this is more about principle than money or land.
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Wed Oct 14, 2015 10:06 pm

Hi justjohn,

the solicitor originally agreed to sign over the land PROVIDED they moved the drains in a timely manner and responded within 14 days.

whose solicitor was that?

Kind regards, Mac
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