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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33523
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Clare, I have a 3 year battle over a right of way which

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Hi Clare, I have a 3 year battle over a right of way which was stayed in court with the neighbour from hell via a Tomlin Order. They put a charging order on our property because we haven't paid their final legal bill of around £17,000. Only issue is now we have a counter claim (over 200 pages of evidence) since they have continually breached the Tomlin order blocking the shared driveway too. Our hearing is on 15th September and we have a solicitor acting on our behalf. Question: if the NFH puts an application for an 'order of sale' of my second property (rented house), do you think the court will accept this or will our court hearing for the counter claim take priority first?
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
How much is the Counter Claim worth?
Clare
Customer: replied 1 year ago.

Hi Clare, including my own legal costs spent over the past 3 years defending the claim (i.e. almost £10K) and damages to my vehicle, damages for past nuisance caused by the Claimant, damages for moving my fence and post from the original boundary line into my garden by the Claimant and so on and including the costs for the counter claim itself, the schedule of loss my barrister hinted at would be at least £30K if not more! (thirty thousand pounds and rising).

So do you think any judge will take those costs into consideration first and also considering a hearing date for our counter claim has already been pencilled in by the court, do you think the Claimant can now willy nilly put in another hearing date to force an order of sale of my rented property which itself is worth almost £500,000 with 80% of the mortgage paid off so them to try and recover £17,000 seems insignificant under the circumstances.

Any feedback would be appreciated.

PS. You can follow the story if you Google "£40,000 wheelie bin" which was covered by the local media, BBC News and my MP for Hendon, Matthew Offord.

Kind regards,

Liaquat.

Expert:  Clare replied 1 year ago.
Hi
have you got an Order for Costs?
Clare
Customer: replied 1 year ago.

When you say "Order for Costs", yes by Order of the High Court but that was over a year and a half ago (December 17th 2013) but now since the Claimants are in breach of the Tomlin Order, the counterclaim has been filed by my barrister and he too will submit a schedule of loss to the other party for their misdemeanours.

Do you need to know anything else?

Expert:  Clare replied 1 year ago.
Hi
Sorry - you said that you are intending to claim your legal fees for dealing with the matter over the last three years.
You can only do that if he has been ordered to pay your costs - I assume he has not?
Clare
Customer: replied 1 year ago.

Thanks for the update. With regards ***** ***** costs, my solicitor has already written to the Claimant and their solicitor stating we will quote "seek recovery of our costs arising out of their conduct" and furthermore in the counterclaim, items listed include "damages", "losses", "interest" and "costs" so I think that is an issue that does not need to be looked at again.

Going back to my original question please (which with the greatest respect you haven't answered yet or do you still need more information):-

Question: if the NFH puts an application for an 'order of sale' of my second property (rented house), do you think the court will accept this or will our court hearing for the counter claim take priority first?

Expert:  Clare replied 1 year ago.
Hi
Right that is more understandable - it does not include the Costs of the former claim.
(I was about to ask you what the acronym meant but then I got it!)
I am afraid that the court would have no reason NOT to grant the Order for Sale as technically the issues are not connected
You can certainly argue that there should be a delay whilst your claim is considered - but this is NOT a valid reason for not paying the debt i am afraid and it is highly unlikely that it would lead to a stay in the Order UNLESS by that time Judgement had been awarded against your neighbour
Please ask if you need further details
Clare
Customer: replied 1 year ago.

Thank you again for your feedback. I checked and our counter claim court hearing is actually on 16th June 2015 at 10.00AM. So basically if the claimant wants to sell our property, he would not only have to put in an application for an order of sale, but that application hearing will have to be heard before the date of our counterclaim and if our counter claim succeeds and judgement is awarded against them.

Finally say an order of sale is awarded, do you know who would be managing the sale of my property and what say do I have, for example eviction of my tenants, time scale and so on? Whatever way you cut it, our counter claim hearing is very imminent, just weeks ago so I hope this throws a spanner in the works and highlights the misdemeanours of this claimant and his solicitor which my barrister has clearly documented in over 200 pages of evidence!

Expert:  Clare replied 1 year ago.
Hi
Just to check - there is no current applictaion before the courts - just threats that have been made?
Clare
Customer: replied 1 year ago.

Hi Clare,

Not that I'm aware of but I wouldn't be surprised if they are putting in an application as we speak!

If so, the time from any court hearing for an 'order of sale' to the actual sale could take months and months and we have sit in tenants who will need to be evicted too.

Considering the debt is possibly only 3% of the value of the property, do you think any judge would take a dim view of what this NFH is trying to do through his solicitor... as any order of sale and even court hearing for that matter is the discretion of the courts isn't it?

Any last comments most welcome.

Expert:  Clare replied 1 year ago.
Hi
It does indeed take months to achieve an Order for sale so you have plenty of time for your other case to proceed.
No the Judge would not see this as unreasonable unless you have already made acceptable proposals for payment
Clare
Customer: replied 1 year ago.

Thanks for your feedback again Clare.

I have savings to the same amount. I could transfer the money to the courts to act as an independent and impartial arbitrator so they can say hold the money pending the outcome of our counter-claim, thus avoiding the sale of the property... so if we loose the other party gets the money or if we win, we get monies from the NFH for the grief they caused.

Unless you say otherwise I would assume this is OK.

Expert:  Clare replied 1 year ago.
Hi
No that is not a possibility - at this stage wait until there is a hearing for an Order for Sale before making any offer at all
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33523
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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