Boundary dispute, Heads of Terms

hamito

I signed a Heads ofTerms agreement to settle a vicious boundary dispute when I was unwell . It now appears that the evidence used to put pressure on me to sign, was inaccurate .  There may have also been a false claim that the other side had boundary insurance which I did not have and this added to the pressure. If there is now more recent evidence that the evidence used for the HOT was wrong, can it still be enforced or can I go to court to try and prove the HOT was signed on the basis of inaccurate information about the boundary?

davidmcn

Which jurisdiction are we talking about? "Boundary insurance" makes me suspect you're not in the UK.

hamito

I’m in the UK in the south - this was a term thrown at me after nearly ten hours in mediation at which point my solicitor advised me to sign - by doing so when I’ll and exhausted  I have lost my access to my own property. 

NewShadow

Anyone can bring any case - the question is the likelihood of success vs the likely cost; mentally and financially... which is something you'd need specific advice on by someone who can consider all the pertinent details and relevant documentation. 

hamito

Thankyou for that - I have very little money and will have to use my pension , I  just need to understand if this HOT based on wrong information can be enforced- to defend it will cost me everything I have, not to defend it makes my home uninhabitable- 

NewShadow

hamito said:

Thankyou for that - I have very little money and will have to use my pension , I  just need to understand if this HOT based on wrong information can be enforced- to defend it will cost me everything I have, not to defend it makes my home uninhabitable- 

My eyesight is a little bad... I can't see the terms of your HOT from here  

If drafted in specific enough detail, a HOT can be legally enforceable or, more commonly, can be a non-binding expression of intent.

Basically, HOT are generally nothing more than confirmation of the intent to draft a binding legal contract relating to a specific matter - but if they are drafted with sufficient detail or have terms which indicate the intent of the parties for the memorandum to be binding, they can be binding in their own right - The behaviour of both parties since the Terms were agreed can be enough to turn a non-binding agreement in to a binding contract; i.e. if you and the other party have been acting as if the terms are binding then they may well be...

Should any of the above be the case, the starting assumption will be that all parties carried out the required due diligence and understood the terms before signing. Meaning, should the other party seek to enforce the agreement, the onus will be on you to challenge it's validity/argue it was never intended to be binding or is invalid for another reason - which will be at your cost and your risk - hence you needing advice specific to your situation. 
 
Given your solicitor apparently advised you to sign - perhaps your first conversation should be with them to establish if the HOT is binding, what due diligence they carried out before recommending your sign, and why they thought it was the most suitable course of action in the circumstances?

hamito

You are absolutely spot on in terms of duty of care of me and my interests - I really appreciate your time in responding to me as I am in a desperate situation- the HOT still had areas to conclude but it’s the fact that the claimants evidence was based on land registry documents and I have since found the land transfer deeds which is in my favour and that’s what I need to know if I could possibly challenge.... 

NewShadow

Yes...
- you could possibly challenge;
- you could also possibly lose a challenge;
- you possibly don't need to challenge if the HOT is not binding;
- not sure how many times I need to say 'you need specific advice' before you realise that you're not going to get a different answer based on the information given... 

ETA: @hamito Sorry, I'm sat on a train and didn't get much sleep last night, so maybe being a little slow... are you suggesting you signed a possibly legally binding agreement relating to a boundary dispute without you or your solicitor getting a copy of the relevant deeds to see the specifics for yourself...? 

hamito

Basically yes because the documents were ‘ missing’  a new solicitor then  found it - the solicitor who was at mediation has not asked or been paid - after I questioned what he had done / not done does that mean I had no legal representation present ??
I am sorry you are tired and you are a voice somewhere and it makes a huge difference as there is so much at stake 😟

davidmcn

hamito said:

the HOT still had areas to conclude

Which in itself suggests it's not intended to be legally binding. Generally "heads of terms" are "subject to contract" details of what's been agreed in principle, and in theory everything is still up for negotiation. But as above, difficult for any of us to advise further without seeing what you're talking about.

And although probably too late to be relevant, if anyone does have title indemnity insurance then they are generally (a) prohibited from telling other parties that they have insurance and (b) any negotiation would effectively be made by the insurers rather than the insured.

hamito

Thankyou so much for your time and mental energy- I feel I have to fight and use my pension to do so -  Nothing to do with you but I am in total shock that I can lose my home and pension in having to defend myself against an inaccurate boundary claim , where the other side has no evidence other than the land registry document - I have already spent all my savings on legal advice and am  nowhere near a resolution - it’s a very scary place and I thank you from the bottom of my heart for at least listening and trying to answer me .