What Is Property Litigation?

What Is Property Litigation?

Property litigation is a field of law that deals with disputes relating to property of all kinds.

Property litigation typically involves settling disputes between property owners and their tenants, but can also include a wide range of other matters involving the ownership of residential, commercial, industrial, and agricultural property. In other cases, property investors and owners may retain the services of a solicitor when they need legal advice; for example, for drawing up contracts, or simply for obtaining advice in order to prevent future disputes or problems.

Property Law, Litigation, and Dispute Resolution

Property law encompasses practices related to the buying, selling, leasing, and ownership of property. Within this category is a very wide range of issues that pertain to landlords and tenants, as well as owners of property of all kinds. Property law covers such diverse issues as landlord and tenant relationships; certain transactions between home-buyers and financial institutions; environmental issues; planning and development issues; as well as buying, selling, and leasing properties.

The terms “litigation” and “dispute resolution” are sometimes used interchangeably, but they actually refer to different processes within the practice of law. Litigation refers specifically to resolving issues within the court system, while dispute resolution pertains to alternative methods that don’t involve the courts. For the most part dispute resolution is the preferred method of solving legal problems, as it is typically a less expensive and less contentious alternative in comparison to litigation.

While litigation and dispute resolution involve different methods and processes, it’s common for property litigation solicitors to use both in the course of their work. Often, solicitors try to solve problems using dispute resolution first, and then may resort to litigation if those initial methods are not successful.

Who Needs Property Litigation?

Property litigation can benefit anyone who owns property, whether it be residential, commercial, industrial, or agricultural property. Example clients might include retailers, investors and developers, property managers, leaseholders, educational institutions, financial institutions, and commercial or residential landlords or tenants. In short, anyone who owns, rents, or leases property may at one time or another need the services of a solicitor or litigator who specialises in property law.

How Can Property Solicitors and Litigators Help?

For someone who has a property dispute or claim, solicitors and litigators can provide help in a number of different ways, including litigation as well as alternative resolution methods.

Property solicitors can also provide help for people and businesses who don’t have disputes, but who need advice relating to a property matter. For example, the owner of a residential rental property might consult a property solicitor about the legal steps involved in evicting a tenant, or the owner of a commercial property might need advice on structuring a leasing contract.

Property solicitors can also provide services for people with conveyancing needs. Conveyancing is the process in which property is legally transferred from seller to buyer. This process includes several steps, with checks and searches that ensure the property is legally owned by the seller, and that the property is not involved in any prior disputes or claims that might affect the buyer’s legal entitlement.

Examples of Property Matters

Some general areas in which property solicitors and litigators work include conveyancing, planning and development, regulatory compliance, finance and security, and leasehold matters.

Within these areas, property litigators can handle a very wide range of disputes, ranging from simple residential issues between landlords and tenants, to advising commercial property developers and investors. Examples of property disputes that might require litigation include:

• Securing vacant possession of a tenanted property
• Obtaining a court order to allow property developers to proceed with development
• Recovering rent arrears from a commercial leaseholder
• Enforcing continuation of a lease in a case where a commercial tenant attempts to exercise a break option but does not comply with the contractual requirements
• Acting for a property owner to remove unlawful tenants from a property
• A dispute between a landlord and tenant over payment of property repairs
• A boundary or right-of-way dispute between two residential neighbours
• Matters relating to conveyancing, such as title issues or easement disputes

In each case, property litigation solicitors will attempt to reach an agreement on behalf of their clients via dispute resolution methods. If an agreement can’t be reached, the dispute would then enter the court system.

Alternatives to Litigation

For a number of reasons, it’s often prudent to pursue alternative methods of settling property disputes, rather than seeking an outcome through the court system. The most common reason is typically that litigation is a more expensive process; however, litigation is often more time-consuming, contentious, and stressful, than alternative methods. For businesses and investors, another reason is that settling disputes via alternative methods avoids the possibility of publicity that may harm business reputations and relationships.

Collectively, the three primary alternatives to litigation are referred to as “alternative dispute resolutions”.

Arbitration: In this method, a professional arbitrator is assigned to the case. The arbitrator has the power to impose a binding decision, by which both parties must abide. Of the three methods, arbitration is the method that most closely resembles court proceedings, but it has the advantage of ensuring that the details of the dispute remain private.

Mediation: A trained mediator facilitates negotiation between the parties involved in the dispute. In contrast to arbitration, the mediator does not make binding decisions; rather, they help the parties involved come to an agreement. This method is useful because it provides a neutral forum for discussion, but as the mediator does not have the power to impose a binding decision there is the possibility that the dispute will not be resolved.

Negotiation: This method is less formal than either arbitration or mediation, as it simply involves parties negotiating before they start any legal processes. Negotiation might take place between the two parties directly, or between solicitors engaged by the parties involved. Again, negotiation may not necessarily result in resolution of the dispute, but it can help each party explain their position and clarify the nature of the dispute.

The Litigation Process

When alternative dispute resolutions don’t get the desired result, litigation is the last remaining option for achieving a resolution. In accordance with Civil Procedure Rules, the “overriding objective” of litigation is to deal with cases in a just fashion, in a way that limits expenses, and ensures the parties involved are able to participate on an equal footing.

Pre-Trial: Proceedings are instigated when a claimant files a claim form. This document includes basic information about the case and the parties involved. Another document, called the “particulars of claim” is filed with the claim form or as a separate document. The particulars of claim is a document which includes additional factual and legal information about the case. In some cases, certain specific items must also be included. For example, if the claim is made in relation to breach of a leaseholder contract, a copy of the contract must be included.

Property litigators can help claimants complete claim forms and particulars of claim requirements, and determine what supplemental information must be included with the documents.

Trial: During the trial, each party has the chance to state their case, and provide witnesses and/or evidence to back up their assertions. Each piece of evidence and each witness must be relevant to the case at hand. In civil cases, the burden of proof lies on the claimant to prove their case, and the standard of proof is described as a balance of probabilities, meaning that the defendant is more likely than not to be liable.

A litigator is an essential part of civil court proceedings in cases where a claimant or defendant chooses to obtain representation. Litigators argue in court on behalf of a claimant or defendant, explaining evidence, questioning witnesses, and stating the facts as they are known to the client. If a claimant or defendant chooses to represent themselves, a litigator may still be retained to provide legal advice.

Post-Trial: Court-judgements are not self-enforcing, meaning that the courts do not enforce the judgements it provides. As a result, claimants who win their case may sometimes need further legal advice in order to resolve a dispute to their satisfaction.

Depending on the circumstances of the case and the outcome, a claimant has a number of options they can pursue to ensure the judgement is enforced, and a property litigator can provide advice on the various options and help arrange for solutions such as attachment of earnings, or third-party debt order.

A claimant or defendant who doesn’t achieve their desired outcome can, in some circumstances, lodge an appeal, and therefore continue to retain the services of a litigator.

Legal Aid for Property Disputes

While most property disputes do not quality for legal aid, some kinds of residential disputes may be eligible. Eligible disputes are limited to those where a resident is unsafe or faces homelessness. Examples include:

• A homeowner who is at risk of losing their home
• A residential rental tenant who is at risk of eviction
• A residential rental tenant living in a home where their health or safety is at risk

Business, company, and partnership law are excluded, which means that matters relating to commercial and industrial property are not eligible.

In addition, matters relating to conveyancing are not eligible for legal aid.

Legal aid for property disputes is subject to the same rules and regulations as legal aid for any other purpose: there are different levels of legal aid available, and the kind of legal aid a person can receive depends on the nature of their legal problem, as well as their assets and income.