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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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A neighbour is disputing encroachment of 200 MM on the

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A neighbour is disputing encroachment of 200 MM on the boundary wall of our downstairs rear extension done in 2008 . We are looking to sell and offered 2k as compensation which she rejected . We believe the encroachment to be more like 50mm, but she is unwilling to pay jointly for a surveyor and we are not keen to pay unless the result is guaranteed. What can we do re the sale ? Can we put a clause in saying we will meet any future liability regarding the dispute . Is there a time frame by which she must resolve it . What are potential ranges of compensation we would need to pay be if a surveyor found encroachment of 200mm ?
Submitted: 5 months ago.
Category: Law
Expert:  F E Smith replied 5 months ago.

Why has this only cropped up now, 8 years later? Do you not get on with your neighbour?

You say that she’s rejected £2000 as compensation, what does she want?

On what basis is she maintaining it is 200 mm and on what basis are you saying it is 50 mm?

At this stage, I will tell you that the £600/£800 plus VAT for a boundary surveyor is going to be cheaper than going to court because if you both use solicitors, that’s going to cost £400 per hour between the two of you. The loser pays the winners cost so it’s risky.

In cases like this, the court would not order the extension pulled down and rebuilt purely because the neighbour has waited so long and as a result, it seems that it doesn’t really affect the neighbours enjoyment of the property much. Hence, if it did go to court, I think it unlikely that the neighbour would get more than £2000 in any event.

What you might want to do is get a solicitor to write to the neighbour making what is known as a Part 36 offer to settle for £2000. She is likely to take more notice of a letter from a solicitor. The effect of a part 36 offer is that if the matter goes to court and she gets compensation which is not more than £2000, she will have to pay all the legal costs of both her own advisers and your adviser from the date of your offer and that could be considerable and indeed, more than the £2000.

Can I clarify anything for you? Please rate the service positive so that I get paid. We can still exchange emails. Best wishes. FES.

Customer: replied 5 months ago.
Thanks - we issued the 2000 offer back in 2008 via a solicitor so that has been done . We rent the flat out so have no dealings with the neighbour she just seems to be bringing it up again because we are trying to sell . Does she have to do anything to register a formal dispute - our stance is there is no dispute as we don't believe there is encroachment and she hasn't provided evidence to the contry. We just want to sell the property and are looking for options to do this without potential buyers being put off by the dispute . We have already had a surveyor over and she wouldn't accept their verdict .
Expert:  F E Smith replied 5 months ago.

The offer may not have been done as a Part 36 offer and in any event, it expires after 21 days unless expressed to be for a longer period. I would reiterate the offer and make sure that it’s done as a part 36 offer. There are certain requirements with regard to part 36 offers . If it was done as a part 36 offer even back then, there is no need to remake it. The expiry only expires in respect of acceptance, not with regard to the costs issues in the legal proceedings.

Bringing these issues to the fore when the property is up for sale is extremely common because they think that they can try and screw some more money out of you. Surprisingly, I have had neighbours who don’t get on, and one of them was trying to sell is and the other then raises a dispute which stops the other names are selling. In effect, the complaining neighbours shoots themselves in the foot because it means that they cannot get rid of the neighbour that they don’t get only! Absolutely ludicrous.

Unfortunately, she can simply say that there is a dispute and that would in effect stop anyone buying the property unless they wanted it with that dispute. Your remedy is then to go to court for a determination of where the boundary really is.

The fact that you have had a surveyor over and she won’t accept the verdict obviously works in your favour and what you might want to do is threaten (get your solicitors to threaten) an application to court to determine the boundary and an application support for the legal solicitors and court costs and the surveyors costs if she will not agree to where the boundary is, because the court will then have to do it for her. It is the threat of the legal costs which could easily run into tens of thousands of pounds for this which is going to be the major put off for her in most cases. Check your house insurance to see if you have legal expenses cover would pay for the cost of the dispute.

Can I clarify anything for you? Please rate the service positive so that I get paid. We can still exchange emails. Best wishes. FES.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8975
Experience: I have been practising for 30 years.
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