Conflict avoidance, management and dispute resolution

Question 1

How do you reach agreement between parties?

Question 2

How do you manage conflict through effective communication?

Question 3

How do you use internal escalation procedures?

Question 4

How would you use Alternative dispute resolution?

Answer 4

• Dispute resolver: A surveyor appointed, either privately or by RICS, to resolve a dispute, whether as arbitrator, independent expert, mediator, adjudicator or in any other capacity.
• Surveyors may be appointed as dispute resolvers either by private agreement between the parties in dispute, or via RICS or other formal appointing parties, such as the Law Society or the Chartered Institute of Arbitrators (CIArb). A dispute resolver will typically be chosen to resolve a dispute because of their expertise and experience in the relevant field.

Question 5

When would you use an independent expert?

Answer 5

Independent expert determination, 2016
GN, 1st ed

• majority appts commercial rent reviews (separate guidance)
• construction-related matters
• dilapidations
• service charge disputes.
• Most disputes are, in fact, capable of being resolved by independent expert determination and ad-hoc agreements to refer a dispute to an independent expert are common.
• Where parties to an agreement intend that disputes shall be determined not by arbitration but by a surveyor exercising their own professional expertise and judgment, they may call the surveyor an ‘independent expert’.

Tendency for modern lease to provide for an Independent Expert to determine the rent rather than an Arbitrator.

Expert pro:
- not constrained simply to deciding the case on the basis of the information provided by the parties, but can call the market where it is either rising or falling and the evidence is yet to catch up
- quick and cheap
- very useful in determining disputes where there is a single issue which a particular professional is well qualified to determine
- can be less adversarial

Question 6

When would you use an arbitrator?

Answer 6

• suitable for disputes where the evidence is less straight forward or legal issues are more complex

Question 7

What is the difference between an independent expert and an arbitrator?

Answer 7

Tendency for modern lease to provide for an Independent Expert to determine the rent rather than an Arbitrator.

An Expert is charged with deciding the rent based upon their own professional experience.
Arbitrator can only reach a decision based upon the evidence put before them.

Procedure:
Arbitration Act 1996 v Ind Expert contract

Timescale:
18-24 months
v 3 months

Evidence:
Disclosure, witness statements, expert evidence oral hearing
v agreed statement of facts and parties’ submissions

Liability:
Immune from suit
v no immunity

Costs:
Can be allocated by tribunal
v costs of referral borne by each party

Challenges:
Limited to points of law
v contractually binding unless set aside

Question 8

What is an expert witness?

Answer 8

Surveyors acting as expert witnesses, 2014
PS & GN, 4th ed, effective from April 2014, amended August 2020
- Principal message: Your primary duty as an expert witness is not to a client but to the tribunal where your expert witness report and evidence given
- Dual role: The roles of advocate and expert witness are very different, requiring distinct skills, and cannot normally be carried out by the same person. However, in certain circumstances some tribunals, usually lower order tribunals, do allow surveyors to act in the same case both as surveyor-advocate and as expert witness where it is in the public interest, and where not allowing such a dual role would limit access to justice by certain parties.

Principal message:
Your primary duty as an expert witness is not to a client but to the tribunal where your expert witness report and evidence given:
• must be, and must be seen to be, your independent and unbiased product, and fall within your expertise, experience and knowledge
• must state the main facts and assumptions it is based upon, and not omit material facts that might be relevant to your conclusions; and
• must be impartial and uninfluenced by those instructing or paying you to give the evidence.
In those instances when you may adopt a dual role of surveyor-advocate and expert witness (limited circumstances where appropriate) it is also imperative that you differentiate at all times clearly between the two roles

• Conflict of interest check
• Terms of engagement
• Must carry out instructions to extent necessary to produce opinion professionally competent
• Distinguish between facts you believe to be trye and those you have assumed (specifying those instructed to assume)
• Make clear if matter falls outside expertise or insufficient info to reach opinion
• When addressing questions of fact and opinion, keep separate
• May be instructed to communicate with other party to agree facts and clarify/narrow/resolve differences between parties, may require a joint inspection; may be ordered to do this by tribunal
• Even where not instructed, must raise with client poss pros and cons and appropriateness of such communication
• Single Joint Expert (SJE) can put parties on equal footing and minimise costs
• Should not undertake on any form of conditional/success-based fees

Question 9

How should dispute resolvers manage conflicts of interest?

Answer 9

Conflicts of interest for members acting as dispute resolvers, 2020
GN, 2nd ed

• Surveyors may be appointed as dispute resolvers either by private agreement between the parties in dispute, or via RICS or other formal appointing parties, such as the Law Society or the Chartered Institute of Arbitrators (CIArb). A dispute resolver will typically be chosen to resolve a dispute because of their expertise and experience in the relevant field.
• The overriding principle of this guidance note is that every dispute resolver should be, and should be seen to be, impartial at the time of accepting an appointment.
• Actual bias and presumed/unconscious/apparent bias.

Question 10

What is an advocate?

Answer 10

Surveyors acting as advocates, 2017
2nd ed professional statement, 3rd ed guidance note, February 2017, PS 1st June 2017
- Principal message: When acting as a surveyor-advocate you owe duties to your client. However, you also owe an overriding duty to the tribunal to act properly and fairly as set out in this professional statement.

Question 11

When would you use mediation?

Answer 11

Mediation
ACRE Mediation
RICS DRS ACRE™ mediation service involves the facilitative role of a trained, neutral third party who will assist parties to come to and manage the settlement of their dispute.
- Analytical – our mediators help the parties to analyse the circumstances, law, evidence, strengths and weaknesses of the issue to empower them to make pragmatic commercial settlement decisions.
- Commercial - our mediation encompasses wide commercial as well as narrow legal realities and so can provide a flexible settlement that courts or arbitration cannot.
- Restorative - our mediation focuses on restoring the business relationship between parties and is completely confidential to limit further damage.
- Expert - our mediators have many years’ experience and expertise in the field of the dispute. They help parties reach a settlement, or narrow the issues in dispute, reducing court or arbitration costs.

Consumer Mediation Scheme
Boundary Disputes Mediation Service
Business Rent Mediation Service
Online Mediation

Question 12

What DRS services does RICS provide?

Answer 12

DRS services
https://www.rics.org/dispute-resolution-service/drs-services
Adjudication Services
Commercial Rent Review Appt Service
Construction and Engineering Arbitration Service
Commercial Rent Arrears Arbitration Service
Dilapidation Disputes
Expert Witness Referral Service
Ground Rent Assessment
Neighbour Disputes Service
Neighbourhood Planning Independent Examiner Referral Service
PACT – Lease Renewal Disputes
Pubs Code Adjudicator Service
Service Charge: Dispute Resolution
Simplified Arbitration Service – Rural Rent Review Disputes
Small Business Scheme for Rent Reviews
Dispute Resolution application forms
Mediation Services
ADR for Compulsory Purchase Disputes
Telecoms ADR service

Question 13

How do you apply for DRS?

Answer 13

How to:
- arbitration DRS1 form
- dispute resolver other than commercial rent reviews or construction adjudications DRS2
- mediation DRS2M form
- online mediation DRS2MO form
- PACT DRS2P
- dispute resolver service charge DRS2SC

Question 14

When would you use PACT?

Answer 14

PACT
Professional Arbitration on Court Terms (PACT) is a joint initiative set up by RICS and the Law Society as a form of alternative dispute resolution (ADR) for lease renewal disputes.
PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party who may act either as an arbitrator or as an independent expert.
PACT offers a viable alternative to litigation and can be used to resolve disputes in the following matters:
- Duration of a new lease
- Rent / interim rent
- Drafting
- Repair
- Service Charge
- Alienation
- Break clauses
- Other terms of the new tenancy
- Detailed drafting of the provisions to be included in the new tenancy
- Or a combination of the above

Question 15

What is RICS guidance in relation to surveyors involved in tenancy renewals under PACT?

Answer 15

Surveyors and lawyers involved in tenancy renewals under PACT, 2018
GN, 2nd ed

Professional Arbitration on Court Terms:
- provides LL, T/advisors efficient, flexible, cost-effective way of resolving disputes as to rent/other terms
- early example of ADR
- some relief to County Courts
- parties able to appoint an arbitrator or independent expert, whether surveyor or lawyer, with relevant expertise]
- able to control timing and location of proceedings to suit needs

Question 16

How would a surveyor deal with commercial rent review arbitration?

Answer 16

Surveyors acting as arbitrators in commercial property rent reviews, 2013
GN, 9th ed

Arbitration Act 1996

An arbitrator should act fairly and impartially between the parties; using their general knowledge of the subject matter, and skill and expertise as an expert tribunal, to understand and weigh the available evidence in reaching the ‘right’ result, based on the submissions and evidence upon which the parties have placed reliance.
In the first instance, the parties have the right to agree all procedural and evidential matters regarding the conduct of their arbitration. In the absence of such agreement, the arbitrator should make any direction they consider appropriate reflecting their duties

sources:
- terms of arbitration agreement (rent review clause or arbitration clause of a contract)
- AAct96
- legislation e.g. many rent review clauses ref s34 LTA54
- other matters agreed between parties
- principles of natural justice

Question 17

How would a surveyor deal with a commercial rent review which goes to independent expert?

Answer 17

Surveyors acting as independent experts in commercial property rent reviews, 2014
GN, 9th ed

a) independent experts are appointed in order to provide an impartial rental valuation based on their own investigations, knowledge and experience
b) independent experts may be liable for damages if either party is able to show that the independent expert has been negligent, either in the assembly of material relevant to the valuation or in the application of professional skill and judgment to that material
c) independent experts must ensure that they settle Terms of Engagement with the parties in writing before commencing the procedure (if any) that they have chosen to adopt, because later they will be unable to obtain support from statute; and
d) independent experts must deal with the specific issues referred to them: a failure to do so may result in difficulty in recovering their remuneration or, worse, lead to an action against them for negligence.

The first rule for independent experts is therefore to look at the expert determination agreement (in this context, typically the rent review clause or dispute resolution clause in the lease) to see what is provided. There is no statutory framework to rely on and little case law that is of assistance.

Question 18

What are the options for surveyors dealing with rent arrears recovery?

Answer 18

Contact, meet on site to discuss
Ask for accounts

• payment plan
• guarantor
• deposit
• CRAR
• statutory demand
• surrender
• forfeiture

Question 19

How would you use a payment plan to recover arrears?

Answer 19

• short-term
• agreed in writing
• personal to T

Question 20

How would you use CRAR?

Answer 20

• linked to Part 3 of the Tribunals Courts & Enforcement Act 2007 (TCEA)
• replacement of distress
• only available in “pure” rent arrears cases
• only rent, VAT and interest on rent (not s/c or insurance)
• s/c can be recovered under SCRAR
• if mixed use property, CRAR only applies to e.g. GF retail unit, unless whole resi property leased to commercial entity
• if rent inclusive, rent element must be stripped out
• min. 7 days rent arrears
• enforcement officer permitted to enter after serving 7 day warning letter, then enters to take inventory, can remove and sell goods up to value of rent arrears and costs
• must be permitted to enter by T, must be occupying, can’t force in
• T’s can remove items and leave
• get court order if evidence that tried CRAR and T vacated, don’t need to give notice
• must wait 7 clear days before sale can take place and give 7 clear days’ notice of sale to the debtor unless the goods would otherwise become unsaleable or their value substantially reduced
• can’t take items necessary for operation of business
• items have to belong to the tenant i.e. nothing on hire (photocopier/computers may not be owned by T)

Question 21

How can you deal with sub-tenants under CRAR?

Answer 21

• Where the landlord has the right to exercise CRAR against his tenant and there is a sublease in place, the landlord may instead serve notice on the subtenant requiring the subtenant to pay its rent direct to the landlord.
• That notice will take effect 14 clear days after service on the subtenant and will transfer to the landlord the right to recover, receive and give a good discharge for the rent which is paid by the subtenant under the sublease.
• If the subtenant makes a payment under such notice then he may deduct that amount from the rent that he would otherwise pay to his immediate landlord.
• If the subtenant who has been served with notice fails to pay the amount claimed in the notice, the landlord may then exercise CRAR against the subtenant.

CHECK CORRECT

Question 22

How would you use forfeiture?

Answer 22

• aggressive tactic to take back possession of the property
• check to make sure forfeiture clause in lease
• rent must have been properly demanded or received
• lease would be forfeited by the LL entering the premises peaceably, 21 days then can change the locks
• s146 for breach other than rent must be served first
• the T has the right to apply to Court for relief from forfeiture and this can be delayed by 6 months

Question 23

How would you surrender a lease due to tenant arrears?

Answer 23

• does not have to be consideration (by LL), can be nil premium
• normally only done when LL is confident of reletting at higher rent/to better covenant or wants to redevelop (better than LTA s30 ground f)
• if T becoming insolvent

Question 24

How would you pursue a guarantor for rent arrears?

Answer 24

• s17 LTA95 LL claim within 6 months
• if G settles, can take an over riding lease
• new or old lease?
• terms of AGA only applies to 1 assignment and not sub-letting

Question 25

How would you draw down a deposit for rent arrears?

Answer 25

• rent deposit deed attached to lease, read
• T needs to top up (7 days)
• therefore not tended to be used until forfeiting lease

Question 26

How would you use a statutory demand to recover rent arrears?

Answer 26

• preliminary step to pursuing bankruptcy/winding up procedures
• advisable only where no dispute about level of arrears
• can be seen as aggressive tactic
• tenant has 21 days to pay the arrears
• used in debts excess of £750

Question 27

How would you deal with an insolvent tenant?

Answer 27

• check the lease
• is there a rent deposit to draw down?
• are there guarantors to pursue?
• contact the administrator and register a claim for arrears
• make sure the property is secure
• inform the insurers

Administration:
- LL must apply to court to forfeit (best to agree a surrender)

Compulsory liquidation:
- can forfeit by peaceable re-entry?

Voluntary liquidation:
- no bar on forfeiture by peaceable re-entry

Receivership:
- no bar on forfeiture

CVA:
- creditors’ voluntary arrangement?
- can come to a deal where you receive a proportion of the rent owed to you
- Company can enter when insolvent but believe business has future and can continue trading
- Company can agree a deal with creditors to pay back a % of the debt as long as 75% of the creditors agree

Question 28

What would you do if a tenant was going into administration?

Answer 28

Administration:
- LL must apply to court to forfeit (best to agree a surrender)
- due to be paid rent while business still using premises, but may be approached and asked to reduce or forgo rent to ensure business can continue trading/to assist sale
- if company in debt and can’t pay money it owes, can put into admin
- protected from legal action from creditors
- noone can apply to wind up company during admin
- but company can still be wound up
- administrator writes to creditors, Companies House, The Gazette
- can negotiate a CVA, sell business as going concern, sell assets and close company, close company if nothing to sell (has 8 weeks to create plan)
- legally obliged to act in best interests of creditors

Question 29

What would you do if a T was going into liquidation?

Answer 29

Compulsory liquidation:
- can forfeit by peaceable re-entry?
- “winding up”
- company stops doing business and employing people, no longer exists when “struck off” Companies House
- when your company cannot pay its debts and you apply to the courts to liquidate it

Voluntary liquidation:
- no bar on forfeiture by peaceable re-entry
- where company cannot pay debts and you involve creditors = “creditors’ voluntary liquidation”
- where your company can pay its debts but you want to close it = “members’ voluntary liquidation”

Question 30

What would you do if a tenant was going into receivership?

Answer 30

Receivership:
- no bar on forfeiture
- banks and secured creditors take priority and will be paid first
- LLs unsecured creditors and paid from remaining assets
- where a creditor, in response to the non-payment of a secured loan, appoints a receiver to 1 or more of company’s assets to give best chance of recovering amounts owed (if stipulated in the secured loan agreement)
- a “receiver” or trustee can step in to manage the entire company; the director’s directors remain in place but authority limited (in the case of a restructure or company in financial distress)

Question 31

What would you do if a tenant was entering a CVA?

Answer 31

CVA:
- creditors’ voluntary arrangement?
- can come to a deal where you receive a proportion of the rent owed to you
- Company can enter when insolvent but believe business has future and can continue trading
- Company can agree a deal with creditors to pay back a % of the debt as long as 75% of the creditors agree

Question 32

Can you charge interest on late payment of commercial debts?

Answer 32

Late Payment of Commercial Debts (Interest) Act 1998

for invoices that are not paid on time, it enables you to claim interest, compensation and your reasonable costs of collecting the debt where these exceed the compensation. Interest can be claimed at 8% over the Bank of England base rate together with compensation at the rate of £40 – £100 per invoice.

If you have a clause relating to late payment interest in your terms and conditions, you must charge interest in line with the amount stated.

You have up to 6 years to claim the interest.

You don’t issue an invoice for the interest, compensation or costs. You just write and tell your customer the amount due.

Late Payment Demand
Letter Before Action

Question 33

How would you deal with goods left behind by a tenant?

Answer 33

Torts (Interference With Goods Act) 1977

If the goods belong to the tenant, most modern leases will contain helpful provisions about how long the tenant has to collect them and what a landlord can do if the tenant fails to take action. Such provisions may override the concept of bailment (if, for example, the lease appoints the landlord as agent of the goods) but if bailment does apply then the lease should make determining what is ‘right and reasonable’ slightly easier in the context of your scenario.
Following the lease provisions usually keeps landlords out of trouble provided that clear evidence of compliance is kept (eg copy letters to the tenant and proof of delivery). However, where goods are particularly valuable, landlords may still wish to take advice

The landlord becomes an ‘involuntary bailee’, having acquired goods left at the property which belong to another. The Act permits landlords to dispose of goods left behind as long as the correct procedures are followed.

The Act requires landlords to take care of the tenant’s goods and make reasonable arrangements to trace the tenant so that their goods can be returned to them. Notice should be served in accordance with Schedule 1 of the Act, requiring the tenant (or the true owner of the goods) to come and collect them. The notice should be sent to the tenant if the address is known, and in any event attached to the property so that it can be clearly seen.

The notice will need to state the following:
- where the goods are being kept
- where sale of the items will take place
- if items are sold, sale and storage costs will be deducted from the proceeds of sale
- list the goods that remain

Reasonable time to collect the goods is dependant on the landlord, however 14 days or more is sufficient.

If all reasonable steps have been taken to contact the former tenant and the notice has expired, landlords can dispose of the goods. If the goods are sold, any proceeds of sale that remain - after deducting storage costs and debt owed to the landlord - must be returned to the former tenant.

If the steps outlined above are not taken, landlords may find themselves open to the former tenant bringing an action for conversion (a civil action for damages for selling or using another person’s property). This can be very costly and time consuming so it is important to ensure that the steps above are taken and evidence of doing so is carefully recorded.

In the vast majority of cases where items of low value or obvious rubbish have been left, the risk to landlords may be minimal if they were to unlawfully dispose of or sell these items.
Although most leases will have clauses that are intended to deal with this situation, if items are still left in the property at the end of a tenancy then generally these items will remain the former tenant’s property.
Where tenants are in arrears, it is unlikely that a landlord will be entitled to claim a lien over such goods.

Tips:
- If the landlord is concerned that the tenant may fail to remove their chattels at the expiry of the term, they should consider putting the tenant on notice that failure to do so would constitute continued occupation of the premises as a trespasser. The notice should demand possession on the expiry of the term and so warn the tenant that the landlord may be entitled to recover double value for the premises for that period of unlawful occupation. The risk of increased liability may incentivise the tenant to remove their goods before the lease expiry.
- Always attach a general goods notice to the door of the property after taking back possession.
- If in doubt, store all items, either at the property or in storage, pending the conclusion of your searches and communication attempts.
- When arranging collection of goods with third parties, always ensure that they either have paperwork evidencing their title or have express authority from your former tenant to collect on their behalf.
- Where goods are of or could be of significant value, seek professional advice from a solicitor on how to deal with them.
- Consider any counterclaim you may have against a tenant. If landlords are owed arrears, they may be less worried about a damages claim in respect of a tenant’s goods.

Question 34

What were the rules around CRAR during covid lockdown?

Answer 34

Taking Control of Goods & Cost of Enforcement Agents (Coronavirus) Regs 2020

prevent enforcement agents from taking control of goods from domestic premises or on the highway while the restrictions are in place. The government takes the view that it would be very difficult for enforcement agents to apply the social distancing requirements correctly in either scenario.’

The Commercial Rent (Coronavirus) Act 2022
The government (Coronavirus Act 2020) also extended the number of days rent that must become due before CRAR is exercised from 7 to 189 days, which was another blow to landlords.
As from 25th March 2022 these restrictions were lifted apart from restrictions on pandemic rent which needed to go to arbitration.
As of 23rd September 2022 all restriction are lifted and the lease forfeiture procedure is the same as before the pandemic.

Question 35

What were the rules around commercial rent arrears recovery during covid lockdown?

Answer 35

Commercial Rent (Coronavirus) Act 2022

ringfences outstanding unpaid rent built up whilst businesses were closed during lockdowns (these amounts will be known as Protected Rent Debts).

Landlords must make allowances for Protected Rent Debts from these specific forced periods of closure and share the financial impact with their tenants. An agreement should be sought between the parties and, if unsuccessful, there will be a legally binding arbitration process.

Code of Practice for Commercial Property Relationships Following the Covid-19 Pandemic:
The Code:
- states, that where it is affordable, a tenant should aim to meet their obligations under their lease in full.
- makes clear that the preservation of the tenant business’ viability should not come at the expense of the landlord’s solvency.
- explicitly states that tenants should never have to take on more debt – or restructure their business – in order to pay their rent.
- provides guidance on how parties should approach negotiation.

The moratorium period which restricted many of landlords’ remedies to recover “Protected Rent Debts”, came to an end on 23 September 2022.
The deadline for making a referral to an arbitrator was 23 September 2022.
This means that all of the landlord’s usual pre-pandemic remedies become available again, including enforcement against arrears which were previously ring-fenced under the Act as “Protected Rent Debts”.

In relation to forfeiture, under the Act, no conduct of the landlord was to be regarded as waiving a right to forfeit for non-payment of rent, unless the landlord gave an express waiver in writing. This means that until 23 September 2022, the right to forfeit for non-payment of ring-fenced “Protected Rent Debts” would not be waived, even if the landlord demanded and accepted further rent.

From 24 September 2022, landlords will need to ensure that they do not waive the right to forfeit, now that the remedy is available to them again e.g. demanding and accepting rent.

Question 36

What were the rules around forfeiture during the covid lockdown?

Answer 36

Coronavirus Act 2020

Section 82 of the Coronavirus Act was introduced to protect commercial tenants, by precluding commercial landlords from forfeiting commercial leases and evicting the tenant for non-payment of rent. From 26th March 2020 until 25th March 2022.
As from 25th March 2022 these restrictions were lifted apart from restrictions on pandemic rent which needed to go to arbitration.
As of 23rd September 2022 all restriction are lifted and the lease forfeiture procedure is the same as before the pandemic.

Rent Deposits
Landlords can draw down on rent deposits in the usual way and that will also include the obligation on the tenant to ‘top up’.

Guarantors
A landlord can continue to pursue a guarantor for payment (subject to restrictions on enforcement).

Break provisions
Leases may contain break provisions which can be exercised. The tenant may vacate if notice is served on them but they would still be contractually liable for all of the unpaid rent up until the break date. Serving a break notice could also be done as a negotiating tactic to agree new lease terms or force payment where you know the tenant wants to remain in occupation.

Change the payment terms
A landlord and tenant could agree to part payment now with the remainder at a later date, or agree to smaller more regular payments (i.e. monthly rather than quarterly).

Forfeiture based on other grounds
Forfeiture is still available to a landlord for grounds other than non-payment of rent. For example, the breach of a repair covenant. A s146 notice would have to be served in the first instance.

Question 37

How do you take a tenant to court to recover debt?

Answer 37

Civil Procedure Rules (part 7 or 8 debt proceedings/Part 56)

Part 7
Part 7 Civil Procedure Rules sets out the process for court claims for money only.

A claimant must follow the correct steps before court action and issue a claim form and particulars of claim correctly.

The defendant can decide whether they want to:
- admit the claim
- admit part of the claim, and defend part
- defend the claim

If the defendant does not respond to the claim, the claimant can apply for default judgment.

Where the claimant is a business (including landlords), the steps they must take before they can issue a money claim depend on the type of debt they want to enforce.

The pre-action protocol for debt claims is part of the Civil Procedure Rules. It applies to any business claiming payment of a debt from an individual. Businesses include public bodies and sole traders.[1]
The protocol requires the claimant to send a letter of claim to the defendant before starting court proceedings. The letter of claim must state
- the amount of the debt
- whether interest or other charges are accruing
- whether the debt is an oral or written agreement
- details of how the debt can be paid

If the defendant has offered to make regular payments, the claimant must explain why they are not acceptable.

The claimant must send a statement of account with the letter, showing what interest and charges have been added. They must enclose an information sheet and reply form.[3]

The court expects the parties involved in the case to exchange information, try to settle issues without court action, and avoid running up extra costs.

The claimant must complete Form N1 to make a County Court money claim.

The claimant can use the Money Claims Online (MCOL) service if the claim is:
- for a fixed amount of money less than £100,000
- against no more than two defendants
- served to a defendant with an address in England or Wales
- For all other claims up to a value of £100,000, the form must be posted to the County Court Money Claims Centre.
- The claimant can use a separate Money Claims Service for claims up to £100,000.

The claimant can apply for a default judgment once the time to respond to the claim has passed.

Part 12 of the Civil Procedure Rules sets out when a claimant can apply to court for a default judgment.

Part 8
Part 8 is an alternative procedure to the usual method of bringing a legal claim (Part 7) and is aimed at disputes where a claimant is seeking the court’s decision on a question which is unlikely to involve a substantial dispute of fact.

Part 8 procedure differs from Part 7 in that the witness evidence upon which the Claimant wishes to rely, must be served with the claim form and particulars. The Defendants do not have to file a Defence. However, they must file their witness evidence with their acknowledgement of service. Failure to file witness statements on time means that the non-serving party will not be permitted to make representations at any hearing unless the Court provides permission.

Part 56
??? Landlord and Tenant Act???

Question 38

How do you forfeit a lease?

Answer 38

For a lease of commercial property, a landlord can affect this right to forfeit a lease by peaceable re-entry or by issuing court proceedings. To peaceably re- enter, a landlord changes the locks and puts up notices to inform the tenant that the lease has been brought to an end.
The forfeiture is usually undertaken by a Bailiff (Certificated Enforcement Agent).
Forfeiture of Lease is a good tool if you can’t execute Commercial Rent Arrears Recovery (CRAR) because the Bailiff (Certificated Enforcement Agent) can’t gain entry to the property. It can also be used where there are little or no goods to seize, or the goods on the site all belong to third parties.

The landlord will need to consider whether it will effect forfeiture by either peaceable re-entry or court application.
Peaceable re-entry can be quicker and cheaper than court proceedings as it usually involves the landlord simply entering the property to take physical possession at a time when the tenant is unlikely to be present such as late at night or early morning. It is important to note that this option is not available to landlords where residential property is involved.
Court proceedings are usually more appropriate if there is a potential for dispute over the sums owed or if peaceable re-entry is not possible.

Once the landlord has re-entered the property, caution should still be exercised. The tenant, subtenant or a mortgagee can apply to court for relief from forfeiture to reinstate the lease.
The courts have wide discretion when offering relief and will usually grant it if the tenant has applied promptly and pays the arrears. Whilst there is no definitive deadline a tenant is generally expected to apply for relief within six months.

You should also carefully consider the merits of forfeiting before proceeding. Forfeiting a lease will end all future liabilities under the lease, including any guarantors and former tenants. It will also potentially expose you to empty rates liability if the premises cannot be re-let quickly.

Question 39

What does the Civil Procedure Rules Practice Direction 35 refer to?

Answer 39

Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by only one expert.

Question 40

What is adjudication?

Answer 40

What is Adjudication?
The objective of adjudication is to reach fair, rapid and cost-effective decisions on disputes arising under construction contracts, usually within a 28 day timeframe. The appointed RICS adjudicator is a subject-matter expert with years of experience in the construction industry, who will decide on matters brought to their attention by the parties using their own specialist expertise. Under UK law, all disputes arising out of building contracts can be taken to adjudication, whether they relate to prompt payment issues or the quality of work done. Whether or not they have an adjudication clause in their contract, clients, contractors and subcontractors are all entitled to take a dispute to adjudication simply by giving notice and contacting RICS to appoint an adjudicator for them

Question 41

What tribunals are you aware of? When might the Lands Tribunal be involved in a dispute?

Answer 41

First-tier Tribunal (Property Chamber)

We are one of 7 chambers of the First-tier Tribunal which settles legal disputes and is structured around particular areas of law.

Residential property disputes that we handle include:
rent increases for ‘fair’ or ‘market’ rates
leasehold disputes
leasehold enfranchisement
disputes about park homes
improvement notices and prohibition orders where your notice is under the Housing Act 2004
disputes about licences for houses in multiple occupation
the right to buy your council home being refused because it’s deemed suitable for elderly people
Land registration matters that we handle include:
disputes over a change to the land register
applications to correct or cancel certain documents relating to registered land

The Valuation Tribunal is an independent judicial body.
We provide dispute resolution for council tax and business rates.

You can appeal to the Upper Tribunal (Lands Chamber) if you think there was a legal problem with a decision made by the:
First-tier Tribunal (Property Chamber)
Valuation Tribunal in England

You can also apply to the tribunal if your case is about:
compensation for the compulsory purchase of land
discharge or modification of land affected by a ‘restrictive covenant’
compensation for the effect on land affected by public works
a tree preservation order
compensation for damage to land damaged by subsidence from mining
the valuation of land or buildings for Capital Gains Tax or Inheritance Tax purposes
a ‘right to light’ dispute
compensation for blighted land

Question 42

When is correspondence “without prejudice”?

Answer 42

Simply marking a letter
‘without prejudice’ does not protect it unless it contains an offer to settle.

Question 43

What is the tort of trespass?

Question 44

What is the tort of nuisance?

Question 45

What is the tort of negligence?