What is Property Litigation?

Property litigation deals with property-related disputes. The most common cases involve disputes between landlords and tenants, but property litigation can also include disputes in the commercial, industrial, and agricultural sectors as well as residential cases. Property litigation matters can involve anyone who owns, rents, or leases any kind of property.

Litigation and dispute resolution

All issues relating to buying, selling, leasing, and renting property, as well as property ownership, are covered by property law. These issues are typically resolved via one of two different methods: dispute resolution, and litigation.

  • Dispute resolution relies on methods that don’t involve the courts.
  • Litigation refers to methods that involve the court system.

Generally, dispute resolution is the preferred way to solve property disputes, as these methods are usually less contentious and less expensive than going to court. In most cases solicitors try to solve property issues via dispute resolution before resorting to litigation.

What kinds of property matters need litigation?

Property solicitors and property litigators are two connected but different specialities, which means that some property solicitors don’t work in litigation, and vice versa. However, they do often consult and work together to resolve property issues. Some examples of issues that property litigation can resolve include:

  • Matters relating to conveyancing, the transfer of a property title from one person to another.
  • A right-of-way or boundary dispute between two homeowners.
  • Acting for a landlord to remove tenants who are in a property unlawfully, or whom the landlord is attempting to evict.
  • A dispute between a landlord and tenant over property repairs or rent arrears.
  • Obtaining a court order to block—or prevent the blocking of—a property development.
  • Enforcing the continuation of a commercial lease when the tenant is attempting to break the contract.

In all of these cases, and others, a property litigator will first try to resolve the dispute out of court, via mediation or a similar method, before resorting to the court system.

Alternative methods of resolution

There are three main alternatives to the court system. For many reasons, it’s usually desirable to try one or more of these methods before involving the courts.

Arbitration is a method in which a professional arbitrator is appointed to hear the case. They can make a legally binding decision that both parties must honour. This is similar to what happens in court, but because the details of the case stay private it’s often preferred in commercial cases.

Mediation involves a trained mediator who is there to help the two parties come to an agreement. The mediator doesn’t make a legal decision, however, which means that this method doesn’t always resolve the dispute.

Negotiation is an informal method which is often the first step in any property dispute. During negotiation each party typically explains their position, with the objective of coming to an agreement of some kind. If negotiation doesn’t resolve the issue the next step is usually arbitration or mediation.

The litigation process

If none of the above methods allow the parties to reach an agreement, the last resort is to apply to the courts. There are three main phases in a court case: pre-trial, the trial, and post-trial.

Pre-trial phase: The claimant files a claim form. Meanwhile, both parties prepare their cases, with the help of their solicitors.

During the trial: Each party is allowed to state their case. They can also provide witnesses and supporting evidence if they wish, as long as the testimony they provide is relevant to the case. In these civil cases, the burden of proof is on the claimant, who must prove that their position is a valid one. The standard of proof in these cases is called a balance of probabilities. For instance, when the case is decided in favour of the claimant, it means the court has decided the defendant is more likely than not to be liable.

After the trial: Court judgements are legally binding, but are not enforced by the courts. This means that the claimant may be forced to take further legal advice to ensure the judgement is carried out by the defendant. For instance, if a landlord has won a case in which they attempted to secure rent arrears from a tenant, they may need to arrange for a third-party debt order to receive the money they’re owed.