Transfer of ownership of a small piece of garden land to a neighbour

GDB2222

MobileSaver said:

GDB2222 said:

MobileSaver said:

GDB2222 said:

 the neighbour may find another surveyor who has a different opinion. ... you don’t get to see the other side’s evidence until you are a considerable way through the process, by which time a lot of money has already been spent on legal and expert fees.

That is not correct, in small claims you have to file all documents/evidence with both the court and the other party at least 14 days before the trial - the neighbour cannot just turn up on the day and say "Aha, I have a new surveyor's report that says I'm right."

Boundary disputes are quite complex, ... This case is likely to depend heavily on expert evidence, and a lot of expense will have been incurred by the time that the parties have a handle on what that says. 

An application needs to be made to the court for permission for expert witness(es) to be appointed.

It would be unusual for expert witnesses to be allowed in small claims cases and I'm struggling to see why the court would allow such a thing when the claimant's own surveyor has already confirmed the boundary is correct.

That's the fundamental difference between this and other cases. It would be different if the neighbour had a second contrary opinion from another surveyor but that isn't the case here and if it was then the neighbour would be obliged to tell the OP in advance of any trial.

This case will depend largely on expert evidence, as the judge isn't going to go round and start measuring up the gardens himself. 

The neighbour says the surveyor didn't follow instructions, and it's highly unlikely the report is compliant with part 35, so I have little doubt the judge will order a new report to be obtained.

The fact that one surveyor has looked at this and decided one way is, I agree, suggestive that a new report will say much the same, but I can assure you that opinions do differ!  

ThisIsWeird

GDB2222 said:
The neighbour says the surveyor didn't follow instructions, and it's highly unlikely the report is compliant with part 35, so I have little doubt the judge will order a new report to be obtained.
The fact that one surveyor has looked at this and decided one way is, I agree, suggestive that a new report will say much the same, but I can assure you that opinions do differ! 

"The neighbour says the surveyor didn't follow instructions, and it's highly unlikely the report is compliant with part 35"

Where does it say this, GDB?

An informed fellow on the Gardenlaw forum replied; "The solicitor's code of conduct states that a solicitor must not mislead, or attempt to mislead their clients, the court or others, either by their own acts or omissions or by allowing or being complicit in the acts or omissions of others (including their client).

This means that inter alia a solicitor must not threaten others, on behalf of their clients, with actions that a solicitor ought to know are not legally proper. So if there is no basis upon which the client of the solicitor can bring a claim through the courts to get their costs paid due to abortive negotiations, then the solicitor is guilty of professional misconduct and the person on the receiving side of the threat can complain to the regulator. (I think I confused the issue there for the poster, as I'd assumed that the solicitor's threat of 'court proceedings' was to do with trying to reclaim their client's ongoing legal costs. It ain't - the action is seemingly to determine the already-determined boundary.)

The solicitor might claim that the anticipated action relates to the alleged boundary dispute, but if there is no realistic chance of there being one due to expert reports and the concession of the solicitor's own client that they do not own the sliver of land, then the solicitor might well be on shaky ground."

On the surface, then, with their client having had a survey carried out that 'proves' they were wrong about their claim over this land, and to then follow this up with an attempt to purchase this land from the rightful owner - when you simply can not purchase land from someone who doesn't own it - to threaten proceedings would appear to be a breach of the solicitor's code of conduct.

I wonder if we'll ever hear back... :-)

GDB2222

Well, fortunately the OP is going to get legal advice.