Newcastle Solicitors

What can be done if a neighbour’s tree overhangs my garden?

• ask them to cut it back
• If they won’t, record the position in a polite letter
• Ask the council to visit if you believe the tree is causing a danger
• Possibly ask your insurers to visit if you believe the tree roots are damaging your property
• Inform the neighbour that you will cut any overhanging branches back to the boundary line
• Be careful that the tree is not protected by a preservation order

Access to neighbouring land

• Always seek permission first and explain what you need access for
• Record everything
• If the neighbour will not co-operate, take legal advice on applying to court for a Order
• Be aware that you may need to pay fees as well as any repair costs for any works carried out on a neighbours land

Boundary disputes

• Always check property deeds
• Be aware that land Registry title documents are not always helpful, so check through all paperwork you have including any historical deeds there may be
• Possibly ask your conveyancing solicitor when you bought to retrieve your file and check this
• Try to avoid court and document any attempts to resolve the dispute but be careful of what you say in correspondence and possibly take legal advice early

Noise nuisance

After polite attempts to resolve the situation, if you have to report the noise to the local council and the Council thinks noise is a “statutory nuisance”, they will serve an abatement notice on the neighbour to stop. This may be an Order to stop a certain kind of noise completely or reduce it or limit the noise to time periods. Failure to comply can result in fines of up to £5,000 for individuals or up to £20,000 for a business.

What is an unfair contract term ?

Under The Unfair Contract Terms in Consumer Contracts Regulations 1999, an unfair contract term is defined as:

“a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer”

What legislation applies to unfair contractual terms?

There are three pieces of legislation:

•             Unfair Contract Terms Act 1977 (UK)

•             Consumer Transactions Restrictions on Statements Order 1976

•             Unfair Terms in Consumer Contracts Regulations 1999 (naturally this only applies to consumer contracts)

What are unfair exclusions and limitations under the Unfair Contract Terms Act 1977 ?

Under the Unfair Contract Terms Act, liability cannot be restricted or excluded altogether for:

•             Personal injury or death resulting from negligence

•             Negligence, unless the term is drafted according to a standard of reasonableness (see below)

•             Breach of the contract, unless the change in the way the contract is performed satisfies a reasonableness test.

What is an indemnity clause?

An indemnity clause is used to compensate the other party where there is a breach of contract.  If the term does not award a sum which is a ‘genuine pre-estimate of loss’ then the term will be classed as a penalty clause.  Penalty clauses are automatically invalid under the Unfair Contract Terms Act.

Further tell-tales signs of penalty clauses are clauses that apply to any breach of the contract.  Different types of breaches of different terms will result in different amounts of loss and a single catch-all term is unlikely to be a ‘genuine pre-estimate of loss.’

Can liability be excluded for defective goods?

Liability for defective consumer goods cannot be excluded or restricted regardless of whether the goods were supplied directly by the manufacturer, distributor or retailer.  Liability for product defects is strict meaning no element of fault on the part of the product supplier needs to be shown i.e. negligence.

Can businesses restrict their liability under the Sale of Goods Act 1979 or Supply of Goods (Implied Terms) Act 1973?

No it cannot.  Terms under these Acts are implied into both business to business and business to consumer contracts.

Under the Sale of Goods Act, implied terms require that the goods or services supplied are according to any description given, the goods and services are of ‘satisfactory quality’ and are ‘fit for purpose’.

There are, however, some exceptions.  The Unfair Contract Terms Act 1979 does not apply to insurance contracts, contracts used in land transfers, the creation of any intellectual property right, the formation and dissolution of companies and the creation or transfer of security rights.

What is the reasonableness test for unfair contractual terms?

Test of Reasonableness

The Time of Assessment of Fairness

Contract terms are unfair where in the event that, at the time the contract was formed, the term would not have been considered to be fair and reasonable having regard to the circumstances which were known or should have been known to the parties.

In some situations where a B2B contract has been called into question, court may take into account, amongst other factors:

1.            the strength of the bargaining positions of the parties relative to each other

2.            whether an inducement was offered to the customer

3.            the opportunity for the customer to obtain similar goods or services with other persons, without having to   accept the term of contract in question, and

4.            whether the term was brought to the party’s notice.