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LondonlawyerJ
LondonlawyerJ, Solicitor
Category: Property Law
Satisfied Customers: 803
Experience:  Experienced solicitor
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I have a hearing date to retrieve costs incurred from the prior

Customer Question

I have a hearing date to retrieve costs incurred from the prior owner (The vendor) of a house I owned in regards XXXXX XXXXX verbal agreement he had with a neigbour that allowed him access over the neigbours land.

The fence at the property was 18" into the neighbours land and was erected by the neigbour once the verbal agreement was in place.

The property information forms completed by the vendor didn't disclose the verbal agreement and we assumed that the fence represented the boundary.

The Land Registry documents didn't show anything that would raise any concerns due to the scale represented.

The land over which access was allowed was sold in 2011 and the new owner contacted me in 2012 to discuss renewing the fence to represent the legal boundary and we came to an agreement where we had to buy the 'strip' from him.

One the land was sold to the new owner the verbal agreement ceased to exist hence having to buy it from him.

The neigbour is prepared to make a statement in court in relation to the above and I have some architects drawings which show the boundary where it legally was.

I am wondering if I have a valid cost to retrieve the costs I incurred in purchasing the strip of land.

If I had not bought the strip this would have meant I was not able to fill an oil tank in the back garden the would have only been accessible by trailing the fuel pipes through the house which is not allowed.

Thanks
Submitted: 3 years ago.
Category: Property Law
Expert:  LondonlawyerJ replied 3 years ago.

LondonlawyerJ :

Hello I am a lawyer with over 15 years experience. I will try to help you with this.

LondonlawyerJ :

When is your hearing date and in which court. If you are in the county court which track are you in (small claims, fast track or multi track)? Do you have solicitors acting?

Customer:

Hi

Customer:

The date is 13th June

Customer:

It is a small claim as under £5k

Customer:

I have no solicitor acting but have sought legal advice via the York Law Clinic which is a college of law.

Customer:

The hearing is in the County Court of York

LondonlawyerJ :

What you seem to be saying is that you were the victim of a misrepresentation by the vendor in the PIF about the size of the property you were buying. You are claiming the costs of purchasing the strip + consequential costs I think. Based on what you said you may well have a good claim here, if you purchased the property relying on a misrepresentation by the vendor. What is the vendor's defence?

Customer:

I am claiming the full cost of having to but the strip of land of £3476 + court fees to date.

Customer:

The vendors defence at the moment is that he didn't move the fence into the neigbours land. After speaking to the neigbour he has informed me that he actually moved the fence to allow the vendor access over his land and was on a verbal agreement only. I have recently put this to the vendor as his claim of not oving the fence is true. I am yet to hear from him.

Customer:

I am a bit anxious that I may not be fully aware of the legal position here and if I should have taken steps to ensure the boundary as per the sales particulars and possibly what the vendor told me, were true.

Customer:

There was no indication whatsoever that the legal boundary may not have been where it was when we viewed the house

LondonlawyerJ :

I am goign into a meeting now and wil answer later.

Customer:

ok, thanks

Customer:

if you would like me to email documents over that I am proposing to present at the hearing, let me know. Thanks

Customer:

Hi again

LondonlawyerJ :

Your claim as described sounds to me like it has merits and the vendor's defence sounds like a non-defence. You might think it is worth getting as statement from the neighbour if you don't have one, explaining how he came to move the wall and what was said by him and the vendor at the time he moved it. Get it done in the right form (The money claim website should have a precedent for a witness statement) and serve it on the vendor and file it at court. You might want to ask the neighbour if he is willing to come to court to give evidence.

Customer:

The neighbour has confirmed that he is happy to attend court. There was a discussion about payment for his time but I'm not sure how this would be viewed in court. Should I suggest payment is not made?

LondonlawyerJ :

You should not pay him to attend court. It is Ok to pay his fare to court but no money for attending.

Customer:

Ok. I will speak to him about paying only his costs to get to court. Would this need to be disclosed in court?

Customer:

With regards XXXXX XXXXX witness, should I get him to complete the witness statement you mention from the mcol site as well as him attending?

LondonlawyerJ :

Yes you should get a statement in writing in that way and file and serve it. I don't think you need to disclose that you paid hos travel costs but if asked you should agree that you did.

Customer:

Ok, is there anything else you could advise to do with regards XXXXX XXXXX I want to ensure I have all bases covered. Also, I was wondering if it was worth contacting the vendor to discuss settling out of court as I would prefer not to go. Is there anything worth saying to him to try and persuade him?

LondonlawyerJ :

It is nearly always worth trying to settle out of court. Maybe you could send him a letter enclosing the neighbour's statement. Are you willing to accept slightly thess than you are claiming in order to settle the case? If so you could agree to accept a payment of slightly less than the amount claimed just to bring things to an end. You should make it clear that if he doesn't agree you will go to court and seek full compensation and that the offered discount is simply an attempt to end things without having to have a trial. ie it is what lawyers call a without prejudice offer. You may well have to go to court and argue things out in front of the District Judge.

Customer:

Do I need to file all the evidence I currently have with court or can I just take it to the hearing?

Customer:

Do you know which form I need from the MCOL site as I can't seem to find the right one?

Customer:

Do I need to file anything with regards XXXXX XXXXX central point of the claim that has changed since I initially submitted the claim? I.e. I alleged the vendor moved a fence to falsely represent the boundary to the property, but I have now established the neigbour moved the fence and the verbal agreement was in place.

Customer:

Is there a legal term for what the vendor has done/hasn't done when selling the house to me? I am in the process of compiling an email to him to suggest an out of court settlement and as he has a litigation friend representing him (who I think has some law knowledge), and a bit of terminology to describe what he has done may show that I have sought legal advice on this and that I am not just trying to wing it!

LondonlawyerJ :

I would suggest you file and serve all the evidence. Follw this link http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#witness and go to para 17 for details of the correct format for witness statements. You should write to the court explaining the change in your case. This should attach the witness statement from the neighbour which evidences the new situation.

LondonlawyerJ :

He has made a misrepresentation to you about the extent of land he owned and was conveying to you.

Customer:

do i need to file this directly to the county court or to the northampton small claims court?

LondonlawyerJ :

Isn't your case being heard in York? if so that is where you should send it.

Customer:

Ok, thanks

Customer:

If I am unable to get the witness statement and the witness just comes to court, would that be sufficient? I am aware that I will be taking up this guys time and he can be a bit of a grumpy old man if caught in the wrong mood. I am confident he will come to court as he has said he will, but asking him to provide a statement might be a bit much to ask. In fact I remember him saying he wouldn't write a letter, but will speak in court.

LondonlawyerJ :

Then you should write to the court explaining that you will be calling the witness and what you expect him to say but that you haven't got a statement from him.

Customer:

Could I write it based on the information he has supplied me and then get him to sign and confirm he agrees with the information?

Customer:

Could I write it based on the information he provided me with and ask him to sign to confirm he agrees that what he told me?

LondonlawyerJ :

You could do but if he is willing to sign something why not get him to sign a statement?

Customer:

I will give him a call and ask him.

Customer:

I am just compiling the documents and in the survey there is a line that states our solicitor should ensure all boundaries are as stated and I wondered if this potentially would be a get out clause for them?

LondonlawyerJ :

Yes your solicitor should have and very well may have made enquiries but his negligence if any does not get the vendor out of his responsibilities. If there is a misleading answer in the PIF then that is the heart of your case.

Customer:

I have just spoken with the person who said he was prepared to go to court. He is now saying he can't see the point and is saying that the person I am claiming against knows he is in the wrong. I have tried to persuade him but it's not looking hopeful. I will try and get him to sign a statement instead but if not, am I in a bad position?

Customer:

I have just had a look over the letter I recived about the hearing on 13th Jun and it is to have the judgement set aside as the defendant failed to submit their evidence within the dedline. I have just spoken to York CC and they have confirmed that I can attend and speak if I want and wondered if there was anythign I could say to help with the judges decision?

Customer:

The defendant missed an earlier deadline (I can't remember exactly what it was) but because Northampton CC were behind with their processing my request for the next stage of the process (again I'm not exactly sure what this was) came in after their defense landed.

Customer:

Would I have grounds to insist it wasn't set aside and default judgement was made based on the fact that they had missed two deadlines? Their litigation friend acting on their behalf has some legal/law experience I think so should know that sending in documents late isn't best practise.....?

Customer:

The following is the transaction history from my MCOL account

Customer:


You submitted a claim on 20/03/2014 at 12:38:14






Your claim was issued on 21/03/2014






You submitted a judgment against Mr Glyn Goddard and Mrs Eleanor Goddard on 10/04/2014 at 08:41:00






Mr Glyn Goddard issued an acknowledgment of service on 10/04/2014






Mrs Eleanor Goddard issued an acknowledgment of service on 10/04/2014






Your judgment against Mr Glyn Goddard was rejected on 11/04/2014 at 19:38:40






Your judgment against Mrs Eleanor Goddard was rejected on 11/04/2014 at 19:38:40






Your judgment against Mrs Eleanor Goddard was issued on 30/04/2014






Your judgment against Mr Glyn Goddard was issued on 30/04/2014






You submitted a warrant against Mr Glyn Goddard on 01/05/2014 at 10:06:54






Your warrant against Mr Glyn Goddard was issued on 02/05/2014






Your claim was transferred to YORK on 08/05/2014



Customer:

I recall the judgement on 10/4/14 was because they failed to acknowledge the claim in time but was rejected once their acknowledgment came in before my request for default judgement

Customer:

Actually, they did submit their acknowledgement on time but it was incorrect and another was received on 11/4

LondonlawyerJ :

Ok that is a lot of new information. I will get back to you either this evening or tomorrow morning I am busy at the moment.

Customer:

I am just putting a witness statement together for the chap who won't come to court and looking at your link I am not sure what part 4 of 18.1 means

Customer:

18.1 The witness statement must, if practicable, be in the intended witness’s own words, the statement should be expressed in the first person and should also state:


(1) the full name of the witness,


(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,


(3) his occupation, or if he has none, his description, and


(4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case.

LondonlawyerJ :

I am busy at the moment but will get back to you later today.

LondonlawyerJ :

The hearing that is coming up is one to set aside a judgement. Is this because they have obtained judgement in default of a defence or acknowledgement of service? The hearing will not be a trial of the case but to determine whether the other party should be allowed to defend the case. The relevant rule is here. http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13.

LondonlawyerJ :

You will not need your witnesses for this hearing. It would be a good idea though to get the statement prepared and serve it either before the hearing or at the hearing. If his application is successful you can explain to the district Judge about the change in the details if not the spirit of your claim. Maybe your witness will be so relieved about not needing to go to court next month that he will sign the statement.

Customer:

Ok, with regards XXXXX XXXXX witness statement can you provide some clarity on the extract I sent you earlier, specifically item 4?

Customer:

Can I have a say at the hearing to set aside? I would like to put my point that they have been late on two occasions now. Surely once is allowable but twice is just sloppy?

LondonlawyerJ :

Sub (4) simply requires that if a witness is bringing the case or employed by the claimant he must declare it.

LondonlawyerJ :

This link takes you to a useful webpage about the correct form for witness statements.

LondonlawyerJ :

Yes, you have your say, and the Dist Judge has a discretion whether to allow the application. If the there appears to be a defence the application will probably be granted although the application should have been brought promptly. If not it is more likely to fail. See Part 13 CPR linked above.

LondonlawyerJ :

This is the witness statement link that I forgot to put in earlier. http://www.aboutsmallclaims.co.uk/witness-statement-example.html

LondonlawyerJ :

I hope these answers have been helpful. I would be grateful if you would rate the answers I have given you. I will not get paid unless you give me a positive rating. The question will not close and I will continue to answer your questions

Customer:

Ah Ok. I didn't realise this. Will do this now.

LondonlawyerJ and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi, will you be around today for any queries? Thanks

Expert:  LondonlawyerJ replied 3 years ago.
I will be on and off this site today.
Customer: replied 3 years ago.

Ok, I did have a couple of more questions but can't remember what they are. will fire them across once I remember. Thanks

Customer: replied 3 years ago.

The application to have the judgement set side was sent in reasonably promptly I think. Their defence at the moment based on the initial allegation (That they moved a fence) is photographic evidence which proves they didn't move the fence. Therfore, I am expecting the apllication to be granted. Should I then put my application to change the details of the claim in now or wait until the hearing n 13th Jun? I'm not sure if some tactics should be employed with regards to this.....?


 

Expert:  LondonlawyerJ replied 3 years ago.
I think you should write to the court and the other side explaining the position now and and then when you get to court for their application after that has been dealt with and if they are successful ask the District Judge to set some directions (eg for amended claim and defence etc to be filed) leading up to trial.

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