How can I make my neighbour close his dispute?

How can I make my neighbour close his dispute?

Postby Drivingmissdaisy » Tue Jul 11, 2017 5:18 pm

Hello,

I will apologise now for this long winded rant but here goes....

I am at my wits' end and really don't know what to do with a fellow leaseholder (who owns a property in the same building as me), who is being intolerable.

I have owned my flat for over 14 years now and have always had sole use of a small garden at the back (it is a lower ground floor flat). There are 8 other flats within the building and we all bought the freehold about 10 years ago. The leaseholder who is causing trouble (I will call him Mr X) owns the property beside mine and is now randomly claiming my garden is his. I only found this out purely because he informed another leaseholder within the building, that he was going to erect a fence. Mr X also informed my tenant that the garden was his and that she no longer had to tend to it.

This all happened just over a year ago. He has never provided any documentation that supports his claim. He didn't even have a copy of my lease or my deeds before he he made his claim. I have sent him all the supporting documents confirming the garden is mine. He has the flat registry title & plan (both old and new - the latter was re-registered after we all bought the freehold) and copy of my lease. All of which are very clear garden belongs to me. His lease also is clear that he does not own it. I have even paid for two boundary dispute solicitors and two surveyors to check the paperwork, all have come back and said Mr X has no case.

I have informed Mr X that the documents have all been legally checked. He has written back basically saying 'I'm not closing the case and the dispute is on going and that it would be impossible for me to find a buyer, if I were sell'. I have been really patient and accommodating with him, this has caused me so much stress I feel so mad that someone, who is an educated professional behave in such a despicable way. Before I purchased the flat, I was told that Mr X was a bully and a very difficult man - all the other leaseholders in the building despise him as he is just AWFUL.

I am a level-headed person, all my emails have been very polite in response to his but I am now LIVID. Even now, after the supporting documents he has, he still refuses to back down! Last year he even said he was getting his surveyor to look at the paperwork and get back to me, but funnily enough he hasn't. I can only imagine his surveyor has told him he has no case. His emails are always rude and abrupt and quite frankly he is a nasty piece of work. Not that his matters, but he is also rather old - which just makes me sad to think that someone at this age can be so nasty.

So, my question is, without spending any more money on this and without going to Court, what can I do to close this dispute? Is there anything I can do?

Thank you in advance for any help, and I apologise for any typos, I am late to collect my kids from school.
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Re: How can I make my neighbour close his dispute?

Postby FrTed » Tue Jul 11, 2017 7:36 pm

https://en.wikipedia.org/wiki/Vexatious_litigation

I think further legal action is unavoidable sadly.[code][/code]
"No Dougal, these cows are SMALL, those cows are FAR AWAY"
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Re: How can I make my neighbour close his dispute?

Postby Drivingmissdaisy » Tue Jul 11, 2017 9:46 pm

Thank you for your reply frTed - I just find it extraordinary that someone can randomly open a dispute on your own property (even when supporting documents show they have absolutely no case) and then that's it - your property, over-night, is massively devalued and if you want to sell, you have no chance, as no one wants to buy a property with an unresolved neighbours' dispute.

So basically this, odious, little man gets away with it - how can that be right? Surely, there is something, I can do without going to Court?
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Re: How can I make my neighbour close his dispute?

Postby despair » Tue Jul 11, 2017 10:07 pm

If you can prove he is a vexatious litigant i believe all costs etc will land on his head

Is he well off because he might need to be
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Re: How can I make my neighbour close his dispute?

Postby MacadamB53 » Tue Jul 11, 2017 11:12 pm

Hi Drivingmissdaisy,

so is it that the land was included in the lease or use of the land as a garden was included in the lease?

your property isn't devalued if everything is as clearcut as you suggest.

Kind regards, Mac
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Re: How can I make my neighbour close his dispute?

Postby Collaborate » Tue Jul 11, 2017 11:17 pm

Nonsense. I think you've all failed to spot the word "litigation" after "vexatious".

There has been no litigation - merely a spurious claim that has not resulted in any court action.

What OP needs to do now is check their insurance policy for legal cover, and if the neighbour ever trespasses on the garden take action (start with a solicitors letter and work your way up from there).

In theory pestering the tenant may amount to harassment under the 1997 Act, but from the information contained in this thread it seems like it hasn't reached that stage yet.
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Re: How can I make my neighbour close his dispute?

Postby SwitchRich » Wed Jul 12, 2017 7:08 am

Miss Daisy, would you be OK with posting your deeds and any plans on this thread? You can mark over any names etc so your identity is not revealed. It allows the guys here to have a deeper look at your claims. Also if you have then your nasty neighbours claim too.
Also, is it that you actually want to sell at present?
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Re: How can I make my neighbour close his dispute?

Postby arborlad » Wed Jul 12, 2017 7:46 am

Drivingmissdaisy wrote:I have owned my flat for over 14 years now and have always had sole use of a small garden at the back (it is a lower ground floor flat).





'Sole use' is a bit of a strange term to use in circumstances where 'exclusive possession' would be better.

How is the neighbour able to enter your garden?

It's more normal for a garden to be in the possession of the ground floor flat owner.
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Re: How can I make my neighbour close his dispute?

Postby arborlad » Wed Jul 12, 2017 10:17 am

Drivingmissdaisy wrote: The leaseholder who is causing trouble (I will call him Mr X) owns the property beside mine and is now randomly claiming my garden is his.




'Slander of Title' would seem to be the most appropriate course of action here, but, if two lots of solicitors have viewed all relevant documents and not suggested it - what are we missing?
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Re: How can I make my neighbour close his dispute?

Postby Collaborate » Wed Jul 12, 2017 11:34 am

arborlad wrote:
Drivingmissdaisy wrote: The leaseholder who is causing trouble (I will call him Mr X) owns the property beside mine and is now randomly claiming my garden is his.




'Slander of Title' would seem to be the most appropriate course of action here, but, if two lots of solicitors have viewed all relevant documents and not suggested it - what are we missing?


I don't think slander of title would work here.

This is what Practical Law has to say about it:
A claim for malicious falsehood is usually made to protect economic interests. It is sometimes brought as an alternative to a claim for defamation. However, for malicious falsehood there is no need to prove damage to reputation, and damages will usually be lower than in a successful defamation claim. It is usually more difficult to successfully pursue a claim for malicious falsehood than for defamation, but there may be tactical reasons for trying, for example, a desire to avoid the single meaning rule in defamation, which does not extend to malicious falsehood (see Meaning and malice).
Slander of goods and slander of title are particular applications of the general tort of malicious falsehood. The term "slander" in this context is not restricted to oral statements, but is used to mean "disparagement". Slander of goods extends to property generally, including land. There may be a case for malicious falsehood where a reference to a third party's goods has gone beyond comparative advertising. Slander of title can relate to real, personal or intangible property, such as intellectual property. However, where a defendant has made a threat in relation to title in intellectual property, it is likely to be easier to pursue this under specific statutory provisions (see Practice note, Threats actions and intellectual property rights), unless there is a very clear case of malice.
A claim for malicious falsehood may also be brought at the same time as a passing off action. In passing off, the defendant makes a statement about himself, whereas in malicious falsehood he makes a statement about the claimant.

Elements of malicious falsehood
The common law offence of malicious falsehood is made out by the malicious publication of false words that refer to the claimant, his property or his business, and give rise to special damage as a direct and natural result of their publication, or for which damages can be claimed under section 3(1) of the Defamation Act 1956.

Publication of false words

Publication

The statement must be communicated to third parties. The defendant must have published deliberately, that is, publication must not have occurred merely from an absence of due care. However, where there has been deliberate publication, the defendant may be liable for further publications which follow as a natural and probable consequence from the first publication (Cellacite and British Uralite v Robertson, The Times, 23 July 1957 (CA)).

Falsity

The claimant must prove that the statement was false, regardless of any malicious intent on the part of the defendant. Mere puff, that is, one trader simply saying that their goods are better than those of another, is not actionable. The court will not normally adjudicate on the comparative quality of competing products, although it is possible that there could be exceptions to this. However, where a statement is not limited to a comparison of the goods but goes on to include an untrue statement about the rival trader's goods, malicious falsehood may be made out.
Words refer to the claimant, his property or his business
There must be "some reference, direct or indirect, ... to the claimant or to his business, property or other economic interests" (Marathon Mutual Ltd v Waters [2009] EWHC 1931 (QB)). In Marathon Mutual, it was enough that the reference was to the mutual protection fund, Marathon, managed by the claimant. In the same case, the judge rejected the existence of a claim where the reference was calculated to injure the claimant's economic interests but was to someone or something other than the claimant, his business, goods or property, as this could open up the risk of a tide of claims for secondary economic loss.
Meaning and malice
There will be liability where the defendant has an improper motive (Greers Ltd v Pearman and Corder Ltd (1922) 29 RPC 406 at 417). Knowledge or recklessness as to falsity will be virtually conclusive as to malice (Kaye v Robertson [1991] FSR 62 CA).
There is no liability for words published in good faith (Friend v Civil Aviation Authority [2005] EWHC 201 (QB)) or as a result of negligence, even if they are false.
Where the defendant, with the intention of doing harm, publishes words that he believes to be true but that turn out to be false, he could be liable.
However, where the defendant's intention was to benefit his own business, the mere fact that he injured another's business, was not evidence of malice (Dunlop v Maison Talbot (1904) 20 TLR 579 CA).
The single meaning rule that applies in defamation (see Practice note, Overview of defamation: Meaning) does not apply in malicious falsehood (Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609). The court will identify the reasonably available meanings and decide if a substantial number of, or many, people would reasonably have understood the words complained of in a damaging way.
Where a defendant did not intend a meaning which the court later finds his words to bear, it is the defendant's subjective understanding that matters when determining whether he knew the words to be false (Loveless v Earl [1999] EMLR 530 at 538-541).
Absolute privilege is a defence to malicious falsehood, as it is for defamation, for example, for a statement in Parliament or in judicial proceedings. However honest comment is not a defence (Thornton v Telegraph Media Group Ltd [2011] EWHC 159 (QB)); even in defamation, honest opinion will not succeed as a defence where malice is proved (see Practice note, Overview of defamation: Honest opinion).

Damage

To recover damages at common law, the claimant must allege and be able to prove that, as a direct and natural result of the publication, he has suffered loss that can be specified in monetary terms. There is no provision for compensation. Usually, the loss will be loss of trade.
A claimant who makes a successful claim may also be able to recover aggravated damages for injury to feelings, and the award can take account of the conduct of the defendant during the litigation. Section 29 of the Crime and Courts Act 2013, which is not yet in force, provides for aggravated damages to be awarded in a case against a defendant who is a "relevant publisher". This is, broadly speaking, one who publishes "news-related" material. For the background to this, see Legal update, Crime and Courts Act 2013 creates new rules on award of costs and exemplary damages against news providers.
Where the offence is actionable under section 3(1) of the Defamation Act 1952, it is not necessary to allege or prove special damage. The claimant can recover damages representing the loss that he is likely to suffer as the direct and natural consequence of the falsehood. For the section to apply, the words upon which the action is founded must have been either:
Calculated to cause pecuniary damage to the plaintiff and published in writing or other permanent form.
Calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.
"Calculated" means "more likely than not" (Tesla Motors Ltd v BBC [2013] EWCA Civ 152). To recover under section 3(1), all that needs to be specified is the nature of the loss and the mechanism by which it is likely to be sustained (Tesla Motors), not the amount of pecuniary loss.

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Re: How can I make my neighbour close his dispute?

Postby Drivingmissdaisy » Wed Jul 12, 2017 12:25 pm

Thank you all so much for your replies, I appreciate it so much.

MacadamB53 - the land is in my lease. It states ''basement flat together with the stairway and stairwell and passage leading thereto and sunken courtyard'. I forgot to say Mr X also thinks the staircase/passage way, may belong to him as well.

Collaborate - sadly my insurance won't cover this, I have checked. I'm about to write to him to tell him if he trespasses again or approaches my tenant I will take legal action against him. The trouble is, due to his profession (he makes a living out of going to court, has solicitors at hand - I won't tell you what he does for a living but he enjoys fighting people) so I want to avoid getting into a ping-pong ball match between my solicitor and his, as I just can't afford it - he can.

SwitchRich: I would post it on-line but I am too scared he will come across this and probably sue me for slander after I called him an odious little man :lol:. The ONLY thing I can think of, why he believes he has a case, is his patio area is stated on his lease as 'coloured red and hatched black' (which it is, but as they are old plans, it is slightly hard to see the hatching underneath the red - BUT IT IS THERE). My land on his plan is hatched black (which is outside his red boundary). So if one just sees just the red and not the hatching, it could be mistaken (if you're a real idiot) that the area 'coloured red and hatched black' is his patio and my garden. Gosh, hope that makes sense! I have raised this issue with him but he is still adamant the garden is his. I had planned to sell the flat this Summer but there is just no way, I can do that now without making a loss. Also, to be honest with you, I would hate to pass this onto someone knowing exactly what this horrible little man is like, I wouldn't be able to sleep at night.

arborlad - yes you are right, I should have said 'exclusive possession'. My garden is raised, there are stairs and pathway which go down to the basement a wall, then a raised flower bed (which I had planned, in time, to have excavated into a small patio area). Mr X's patio is on the ground floor next to my raised garden (which is the same level as his) - both divided by railings. The back of the raised garden has a small wall and bushes (so it is easy to access). I am now in the process of getting that fenced off.

I just wanted to add that the previous owner of the building who originally converted the flats, has also confirmed that the garden is not Mr X's and I have a much older documents proving this (just want to add he can't stand him either). On a different note, there is no way you could sell the basement flat without the raised garden/pathway. There are only windows to the back of the flat - none to the front, so if that garden belonged to someone else and was fenced off, the flat would be pitch black inside.

Sorry to go on and on, but I do massively appreciate that you have all taken time to respond x
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Re: How can I make my neighbour close his dispute?

Postby arborlad » Wed Jul 12, 2017 12:50 pm

Drivingmissdaisy wrote:arborlad - yes you are right, I should have said 'exclusive possession'. My garden is raised, there are stairs and pathway which go down to the basement a wall, then a raised flower bed (which I had planned, in time, to have excavated into a small patio area). Mr X's patio is on the ground floor next to my raised garden (which is the same level as his) - both divided by railings. The back of the raised garden has a small wall and bushes (so it is easy to access). I am now in the process of getting that fenced off.




A word of caution on that, something that is new will be instantly contested/disputed - something that is old and established has a much greater chance of being correct.

The law presumes you will fence to the fullest extent of your land but your timing of this has to be carefully considered.

Slander of Title is described as this: In law, slander of title is normally a claim involving real estate in which one entity falsely claims to own another entity's property. ..............and would seem eminently suited to your circumstances. Are you still in contact with either of the two teams of solicitors?.....a simple phone call could establish this.
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Re: How can I make my neighbour close his dispute?

Postby despair » Wed Jul 12, 2017 10:28 pm

would private contact with our brilliant Pilman be a solution here he may have ideas if he sees the plans
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Re: How can I make my neighbour close his dispute?

Postby SwitchRich » Thu Jul 13, 2017 1:01 pm

I second that! pilman has helped me out massively! He is retired now and usually just likes to be helpful if he believes in your cause, and it seems like you are genuine.
If you want to thank him afterwards then a donation to a cancer charity is a nice gesture to make :)
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Re: How can I make my neighbour close his dispute?

Postby arborlad » Thu Jul 13, 2017 1:24 pm

This is what Conveyancer had to say in a situation similar to yours:



Conveyancer wrote:Write back and say:

Dear Sir,

[Insert heading describing property]

Thank you for your letter of...

1. The land in question is entirely within my title as registered at HM Land Registry, as you will discover if you take the trouble to obtain office copy entries.

2. I have been in undisputed possession of the land for twenty years.

3. A legal title guaranteed by the state coupled with long term de facto possession gives me an indefeasible right to the land.

4. Your reference to aggravated and exemplary damages is made solely to frighten me into conceding some land.

5. Should proceedings be instituted they will be defended vigorously and the court asked to award costs on a full indemnity basis on the grounds that the claim is wholly without merit.

6. It cannot be coincidental that this entirely spurious claim comes at a time when your client wishes to construct an extension for which he has insufficient space.

7. If either you or your client persist in maintaining that I do not have title to the land I shall have no option but to begin proceedings for slander of title.

8. I shall not engage in any further correspondence in this matter.

I remain your obedient servant,

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