Discharging rainwater

[horleyox]

Their litigator was sacked after I made an SRA complaint about his unprofessional conduct. My neighbour's have now agreed to mediation, but plan to barter their discharging responsibilities for my ownership of our first floor boundary land that their predecessors have built on. Mediation is therefore bound to fail. HMLR say their only option is to apply for rights of adverse possession (ie squatter's rights, not a right of prescription)if they want to claim ownership. Any advice?

horleyox

[horleyox]

My neighbour's solicitor is now quoting 13th century Latin to me " Cupid est solum, emus est usque ad coleus et ad infernos" in relation to their claim for ownership of my land at our boundary. Any suggestions on how I should respond (ideally in Latin). HMLR have already confirmed their only option is a right of adverse possession to the land in question.

Thanks, horleyox

[paulajayne]

"Cupid is the only way to the sky and her legacy" ???


"Illegitimi non carborundum"

[des8]

I stopped using Latin 50 plus years ago so a little rusty now

However if you have transcribed the quote accurately you could point out the word "coleus" is incorrect . The word is "coelum" a masculine second declension word meaning heaven.
"Coleus", derived from Greek to Latin, is another second declension word, and (besides being a plant)
in Latin means a bag and from there is used as a vulgar term for the scrotum or testicles (much to the amusement of fourth form boys and it obviously made an impression on me as I remember enough to go and look it up

On a more serious note you could go back and point out that property law professor, Bruce Ziff translated the maxim as:

"... whoever owns the soil, holds title all the way up to the heavens and down to the depths of the earth....

But adds:"The Courts have resisted applying the maxim literally. [I]t is so laden with qualifications that it is best regarded as a fanciful phrase of limited validity".

,
In Star Energy UK [2009] EWCA Civ 579. (http://www.bailii.org/ew/cases/EWCA/Civ/2009/579.html) Justice Aitkens of the Supreme Court of Judicature, Court of Appeal, Civil Division was even more outspoken:

"The owner can only claim title for so far beneath the surface as is reasonable to enjoy his ownership of the surface land. The 13th century Latin maxim cuius est solum, eius est usque ad coelum et ad inferos is not and never has been a rule of English law. It is ... so sweeping, unscientific and unpractical a doctrine as is unlikely to appeal to the common law mind and it has not done so."

[horleyox]

Thank you for correcting my Latin. I did actually mean 'cuius' and the solicitor used 'cujus ' I'll blame it on autocorrect when typing!

The solicitor is also quoting the principle of indemnity as the basis of only offering to pay the the value he perceives to be my economic loss (nominal), no other associated costs - surveys, advice, etc - because I did not ask for his clients' permission first, nor my legal costs because his clients will be bearing their own, and not my own time costs as LiP, replying to over 70 letters of correspondence and over 100 emails from them or their clients over a period of more than a year.

He he wants me to settle the claim for £1k plus his clients will pay to remedy their issue, but on the disputed land he is claiming they own under the 13thC maxim.

i have heard of the principle of indemnity in insurance but not in legal claims. I am not seeking betterment. Can anyone out me right on this and their derisory settlement offer. My costs now add up to nearly £50k to date.

In despair.

horleyox

[des8]

Forget about all the waffle.....
They have now shifted their position to wanting to negotiate
Sit back and work out exactly your aims, which I believe were (altho' open to correction):
1) correct discharge of water on a permanent basis
2) indemnify (you can use that word as well outside of insurance) you for the damage caused to your property.(altho you could claim for this on your household insurance)
3) sort out the boundary problem.

Your main problem seems to be the boundary.
Their building is some 45 cms over the boundary and you said "It effectively makes my upper stairs and 3 feet width of a top floor bedroom are flying freeholds." Does part of your building actually project over their building?
Obviously you are not going to get their agreement to knock the building down, and I doubt a court would order that either as it would seem to be an unreasonable course of action.
What are the possibilities of accepting the position and selling them that strip of land?
If you have a mortgage your lender will need to agree.

Don't forget the chances are they also will not want to go to court.
Court is a last resort for both sides as costs escalate and the outcome is uncertain

Regarding costs; even if you win in court there is no guarantee you would be awarded all or any of them

[horleyox]

The root of the boundary problem is that in the mid-1970s a single storey rear kitchen extension that infringed the recorded boundary for my property by up to 45cm over a distance of 5.2 metres. Nothing was recorded at the time, there was no neighbour to neighbour transaction and no claim since made for prescriptive rights (which I now understand are not relevant) or adverse possession to HMLR. There was also no neighbour objections to the proposals at the time, which makes me wonder if they were just filling a gap between the houses at ground floor level to avoid the gathering of rubbish, leaves, etc, without any claim to ownership of the land. The present owner moved in 2 years ago and has since instigated three disputes with me. Needless to say, we don't get on.

I'm not willing to sell the land to them and only willing to let them carry out their proposed remedy if they make no claim to ownership of the land they plan to implement this on. The alternative is I put my own remedy in place on my own land and at my expense and consider Court action, which I agree would be a mug's game in terms of costs and lack of reimbursement. But that probably risks an injunction being served in me.

One other point made in most recent correspondence from the solicitor was for precise details are of the barrister I employed to provide an advice on my claim for nuisance. In my schedule of Claimant Costs I only described it under the name of the chambers. Do Counsel's details come under the umbrella of legal privilege, so I am under no obligation to disclose? I have no idea why they would need the name of the barrister unless they were going to approach him to argue about the validity of his advice or wanted to tell him I had not told the truth when I briefed him or just want to gauge his abilities, experience and professional standing.

Still in despair

horleyox

[horleyox]

Oh, on the subject of indemnity, they argue the damage caused to my property by their clients only amounts to £1k (excluding my legal costs and other professional expenses I have incurred) and so my actual costs of almost £50k (including my own time costs) can be rejected because a) this does not reflect a reasonable time, rate or sum b) is disproportionate to the claim for material damage and c) offends the indemnity principle in any event.

Any advice or response?

Thanks again

horleyox

[des8]

Regarding the schedule of costs I imagine this guy is used to negotiating over costs, and automatically will try and obtain as much info as he can.
Ask him why he wants the name of your adviser,

If you are adamant in not disposing of the land, what are your intentions?
Retain ownership but relinquish possession by giving the neighbours a licence to occupy, or do you want to charge rent?


I must admit I find your refusal to sell difficult to understand.
Your neighbours have only lived there for two years, so were probably unaware their building encroached on your land.
You purchased the property as it stands, and were unaware their building encroached on your land
In some ways they are innocent, or at least inadvertent, trespassers
.
As the encroachment took place nearly 40 years ago, it was possibly done with agreement, although nothing in writing


.
The amount of land is de minimis (2.3 square yards in old money) so presumably only of nominal value.
Your main aim surely is to have them to rectify their drainage.
Damage to your property can then be sorted by your insurers , who may or may not pursue your neighbours.
Your costs, on the face of it, do seem excessive for what you expect to gain, and you should be prepared for the defendant to challenge them vigorously
.

[horleyox]

When I bought my property my conveyancing solicitor stated the boundaries were regular and in accordance with the electronic copy of the title plan held by HMLR. A first floor balcony and railing was in place on the flat roof above a 1960s kitchen extension with the decking and railing installed 8 years earlier in line with the infringed boundary, but noting in the associated planning application drawings that the boundary was some 45cm beyond this proposed railing. As my architect says, sensible people don't build right up to boundaries because inevitably this results at some point in a neighbour dispute. So I was under the impression when I bought the property that the area you calculate beyond my railing belonged to me. Then my neighbour demanded screening of their property by me via the Council and I obliged not wanting to cause a fuss by putting screening plants on the flat roof beyond my railing. This is what started it all off.

i already own a flying freehold room over the same neighbour's property. It's been a nightmare. They refuse to make any financial contribution whatsoever to maintenance and repairs of the roof above this room. If they gain control of the boundary land, I may be giving up a small area of space there, but I would also be turning my second floor staircase and part of my master bedroom into another flying freehold. So no, I am not going to sell or give in to their intransigent position unless they can provide evidence or lodge a successful claim.

Does my stance make more sense in this context?

As for my costs, these have spiralled simply as a result of more disputes being propagated by them and more threats or assertions being made by their solicitor. A large part of these costs are my own time costs, which I appreciate I shall not recover, but reflect the time, hassle and opportunity cost of responding to disputes that have now gone in for over a year.

The barrister's advice has had the benefit of allowing me to agree a CFA with a regional firm should the case for nuisance end up in court. This is worth tens of multiples of what they are currently offering in settlement, but I am not sure when or if I should disclose this to the neighbour's' solicitor.

horleyox

[des8]

Sorry, but seemed to have missed your last post

In post 30 you said you weren't going to take any action over the water damage or discharge matter, but you seem to have continued with the claim, which they are offering to settle for £1000 plus they do what they should always have done and dispose of rainwater correctly.
As your insurers will repair the damage when appropriate drainage has been constructed (or have you already repaired the damage?) that offer could conclude that problem.
If you were to go to court with that claim you are most unlikely to recover your costs, and could well land up paying their costs as you declined what might seem to be a reasonable offer.
That leaves your dispute over the boundary.
Sorry, but I can't envisage what building bits are where!
I take it tho' that part of your building is over and supported by part of the neighbouring extension?
So yes, in that case I can see why you would not want to compromise over the land, but also why you would not want to see their extension removed!
However they have not actually made a claim with Land Registry for the land so I don't see there is anything for you to do at this stage.
Of course if they withdraw their offer if it is dependent on you conceding over their land claim it becomes a new ball game.
Was the offer made WP?

[horleyox]

I hope to avoid issuing Court proceedings but their solicitor is now urging me to do so "if I think I have grounds'" while still offer to mediate under his terms. The have persistently refused voluntary disclosure, have not worked to a reasonable time period and simply did not respond to repeated offers of mediation made by me between April and June. Their replacement solicitor (the first was sacked after a complaint I made to the SRA over his conduct) managed to get an instruction from them to enter mediation in July but there have been countless wrangles over what form this should take since.

The neighbour's have put forward proposals to deal with their discharging, but having recorded the conversation with the contractor, there will still be water "going down there" ie onto my property. Their principle aim is to remove my screening plants and reclaim the land at our boundary that they consider to be their own, all for the token settlement sum of £1k. Their solicitor states my priority should be getting this work done to stop the discharging irrespective of the boundary dispute and they plan to press on regardless with their proposals in 2-3 weeks even without my consent.

Please can someone explain the indemnity principle under CPR? Their solicitor appears to be arguing that I cannot claim for fees incurred that are disproportionate with what they are willing to accept as the cost of physical damage caused. So if it costs £4K to repair (insurance company said they wouldn't consider my claim until a verifiable permanent solution had been put in place to avoid recurring claims. They also tripled my renewal premium this year on the back of having just discussed the issue with them) but £6k in legal fees to bring them to task, and another £1k on an expert survey to prove liability and causation, their solicitor is rejecting my costs under the principle of indemnity and offering just £1k.

I have incurred another £4K in professional fees to a planning consultancy and architect to rebuff a complaint made by the same neighbour to the Council in retaliation to my dispute demanding I screen their property at my expense because of 'overlooking' and that in their opinion my balcony was illegal. This found traction with an enforcement officer I had previously undermined over a similar claim by the previous owner. If I had not spent the money on fees enforcement action would have been taken and my balcony declared illegal. All because of their malicious complaint. I therefore consider my neighbour's liable for these costs as they are intrinsically linked.

And then there is the boundary. They have switched tactic on this from a right of prescription (without the necessary evididence) to the Latin maxim, but I have pointed out they don't own the soil according to HMLR's record, so own nothing above. I commissioned a measured survey to work out exactly where the rightful boundary is and what was at stake. I don't intend to get them to knock it down, but just accept that they do not own the land even if I permit them to carry out their remedy to their discharging on this land.

Anyway, back to the indemnity principle - if I have actual costs associated with the damage of £4K, legal fees of £6k, specialist survey fees of £1k, then also £5k in other professional fees for other disputes they have initiated that are intrinsically linked, how much am I able to potentially recover under this principle?

horleyox

[des8]

That solicitor is pointing out that in his opinion your costs (legal and surveying) are out of proportion to the value of the issues at stake.
If you can't agree a solution, the court will impose one, but even if you win you will find yourself out of pocket as the court . will only permit a proportion of your costs to be recovered from the other party.
The court will give the benefit of any doubt as to whether the costs were reasonably incurred or whether they were reasonable in amount ie an indemnity costs order

The standard method for valuing disputed land is to ask a chartered valuation surveyor to value your property as it stands, and to re-value it on the assumption that you are able to repossess the disputed land. The difference between the two valuations is the value of the disputed land.

[horleyox]

No value of the disputed land has been made and they have not offered to buy it. The £1k is towards the damage caused to the fabric of my property from their discharging. That would hardly pay the decorator's bill, never mind the remedial works that needs carrying out first.

horleyox

[horleyox]

Thought I should post the outcome.

They failed to disclose, failed to mediate (despite their solicitor agreeing on a mediator and a date), failed to remedy and failed to act in a reasonable timescale (2 years). They just carried on lying and promoting their own agenda in order to take control of my land at our boundary.

So, I dropped my claim, re-claimed my boundary (with irrefutable evidence from HMLR and a former owner of the property), put my own remedy in place to their water discharging (an upstand costing £30) and warned the. of the costs of seeking an injunction to stop my action and the need for it to be followed by costly full proceedings. They chose to do nothing.

They are are now on their third solicitor (the first sacked, the second walked, the third engaged to answer correspondence to avoid contact) and now spend all their time after any rainfall scooping out the water that gathers around their kitchen roof light on the flat roof and that used to be allowed to pour onto my property and cause damage. Works out at about 10-15 litres per downpour, so you can imagine the damage caused over time.

A salutary lesson on how the legal route does not always work but is always expensive. Does anyone know of a regulated solicitor in England who will write a letter or respond to correspondence for less than £350 a time???

horleyox