Things being thrown in to my garden from a neighboring property

[steampowered]

I think the letter looks good, well done. The only thing I would be tempted to change is 'if any further incidents of items are thrown into my property' to 'if you fail to now take proper steps to prevent further items from being thrown into my property'.

 

I would also add a line at the bottom asking them to respond confirming whether or not they will be taking steps to alleviate the problem within 14 days.

[BankFodder]

1. This claim is for trespass/nuisance
   
2. The claimant is the owner of XXX address XXX
   
3. The defendant is the party responsible for XXX care home at XXX address and which adjoins the back garden of the claimant's home
   
4. The residents of the care home are persons with various learning disabilities. They are the responsibility of the defendant for the purposes of this claim.
   
5. For over two years the residents at the care home have been throwing objects on two the claimant's back garden and despite being made fully aware of the problem and despite admitting the problem the defendants have taken no action or no adequate action to prevent this.
   
6. As a result of this trespass and/or nuisance the claimants rights over her property being undermined and she is also being prevented from the peaceable enjoyment of her property. In particular the objects which are thrown onto her land are a danger to her young child in that there is a risk they might strike him or that he might play with dangerous items.
   
7. The claimant seeks nominal damages not exceeding £100.
   

[mrpenguin]

Hi there,

 

Many thanks for the additional comments and feedback. I hand delivered the updated letter just the other day and received an acknowledgement letter back. Interestingly the acknowledgement stated that the residents were in domicile care, and after a little further research it seems all residents are renting a place in the property, with the organisation responsible for coming into the property to provide their care. Would this impact who I direct a claim to - the care provider or the property owner?

 

The response also said that I would receive further communication in due course but nothing has been received as yet.

 

Unsurprisingly I received some more rubbish over the fence yesterday and so I do need to now go ahead and submit the claim - could you advise me on the advise question?

 

Many thanks

 

Mr P

[Amazinglyso]

The letter you received from the organization, write back asking if they are the property landlord, as it would appear to me that they are from what you have said. Yet to be completely certain, best just to write back to the acknowledgement letter saying that:

 

 

'further to your correspondence with them, because the littering still an ongoing matter, I need to escalate my original letter of complaint to that of the managing director of the housing scheme, so that appropriate action can be sought, and a 'nuisance neighbour prevention' case be filed. For myself to do this, I therefore need confirmation from yourselves, that you are indeed the landlord of the property my complaint raised.'

 

 

Once you have done this, then you can make an informed decision as to who you should file a 'nuisance neighbour prevention' case. Ammend the letter above as I have written it as a template for you to work with - I wrote this same kind of letter when I had the same issues with my neighbours, but still have to chase them up as problems resurfacing a year later.

 

 

Hope this helps.

[mrpenguin]

After a bit more investigation, the property is owned by a couple. The same couple (or at least one of them) runs the care company (they also both run a training firm which it seems actually recruits workers for the care facility). So the landlord and care provider are the same person/people - does it make a difference if they are not the same legal entity, i.e. the house registered to the owners as individuals or to the business they own?

 

All in all, the relevant parties are entirely aware of the situation as care providers and also landlords.

 

Should I therefore address the claim to the care provider, who in my opinion are the negligent party (if that is the applicable term)? If I need to address the matter to them as landlords (although they are already fully aware) I'm not sure what this would achieve having ignored/failed to act for 2 years already. It is unfortunate that the residents could not necessarily respond positively to a threat of eviction or warning on their behavior.

 

More rubbish again yesterday and 10 weeks away from baby no2, I need to act now

[steampowered]

There are three potential claims here - trespass, nuisance, and negligence.

 

Taking each in turn, trespass requires a 'direct interference' with your property. I think that would only apply to the residents not the care firm or the landlord.

 

Nuisance requires you to claim against an 'occupier' of land. This basically means the person that is using the land to operate a business. You couldn't claim against the landlord if they are just the land owner, but on the other hand you couldn't claim against the care firm if the landlord runs the business and they are just subcontracted to provide certain limited services. You need to try and identify who is actually operating the business here - who actually collects rent? who liaises with the local authority? who is ultimately responsible for the residents? whose name is on the website? I suspect it is probably the care service but you would probably want to try and clarify this if possible.

 

Negligence lets you claim against anybody who owes you a 'duty of care' who has caused you harm through their negligence. I think you should refer to negligence in failing to prevent steps from the litter being thrown in your particulars of claim, as a back-up in case any technical legal arguments are raised about who is the 'occupier' for the purposes of nuisance.

 

It doesn't matter that the same couple are behind it. Companies have separate legal personality. If there are multiple companies involved you need to claim against the correct company or the claim will fail.

 

Finally, before issuing a court claim I think you should write one more 'letter before action' giving a clear timeline of 14 days for a full response or promise that appropriate steps will be taken to prevent this from happening again, else proceedings will be issued. The first letter left the timing open so I don't think you want to issue a claim and then risk them coming back with a response afterwards, and then say you were unreasonable for issuing the claim too quickly.

[mrpenguin]

Hi there, thanks for the recent inputs.

 

The care providers website advertises the property in question as states the following:

 

"[address]...is a supported living service, comprising of two houses, with accommodation available for [number] individuals under a private tenancy agreement."

 

From this the rent is collected by the landlord and not the care provider, although the care provider it would seem are responsible for all aspects of care.

 

So from what you have said, am I only able to direct a claim of trespass only against the residents and not those who are responsible for their care - i.e. the care provider - but negligence can be direct to the care provider?

 

I am slightly confused but want to be clear which element I should direct towards whom to ensure I get the best net result. I think a claim towards a resident is not morally correct and wouldn't want to do this.

 

Thanks, MrP

[steampowered]

The care providers website advertises the property in question as states the following:

 

"[address]...is a supported living service, comprising of two houses, with accommodation available for [number] individuals under a private tenancy agreement."

 

From this the rent is collected by the landlord and not the care provider, although the care provider it would seem are responsible for all aspects of care.

If the care provider is advertising the property, it sounds like the care provider are actually operating the business rather than simply being outside contractors mandated to do a set of very specific tasks.

 

Once we have established that the care provider is the 'occupier' of land, for a nuisance claim you can only claim against them. You could potentially claim against both the care provider and the landlord for negligence, but to be honest a negligence claim against the landlord would be more difficult.

 

So from what you have said, am I only able to direct a claim of trespass only against the residents and not those who are responsible for their care - i.e. the care provider - but negligence can be direct to the care provider?

Correct. Trespass to land is known as an 'intentional' tort. It can only be committed by a positive, intentional action. Therefore I do not think it cannot be relied on against either the care provider or the landlord.

 

I am slightly confused but want to be clear which element I should direct towards whom to ensure I get the best net result. I think a claim towards a resident is not morally correct and wouldn't want to do this.

My instinct is that you should proceed against the care provider only. If it becomes necessary to issue proceedings you structure your Particulars of Claim by clearly and briefly laying out the factual situation, then you mention both (1) that the defendant is the occupier of the land for the purposes of running a care business and that their failure to take steps to prevent rubbish being thrown constitutes an unreasonable interference with the enjoyment of your property (i.e. nuisance), and (2) that the defendant owes you a duty of care to take reasonable steps to prevent rubbish from being thrown and that it has breached this duty of care.

 

I think you need to be very clear in your correspondence with them that they cannot just fob this off to the landlord, and if they do not act to at least try to resolve this problem they will be sued. You need to put in place a very clear paper trail which demonstrates that you gave them a proper chance to resolve this ... if you are suing someone like a care provider you need to be able to prove that litigation was a last resort.

[mrpenguin]

Many thanks again, Steampowered. I'll write an amended letter outlining the nuisance and duty of care points you have raised. In order to establish the land occupier, how can I do this or is it a question that can be put to the landlord/care company that they would be obligated to answer?

[steampowered]

It is a tricky balance. You do need to raise the question, but you do not want to put yourself in a situation where both sides say it is the other one who is responsible.

 

 

I would approach it by working out who you think is the occupier first, and explaining in your letter that the occupier is liable and putting down brief reasons why you have identified the recipient as the occupier. This then shifts the burden on them to put forward good reasons why they are not the occupier if they wish to avoid liability.

[mrpenguin]

I've received information today confirming that the care company are managing the property. As previously I advised of trespass as the action which will change, I'm going to issue a letter advising of the nuisance and how I perceive their duty of care to be negligent. Can I retrospectively state that I have already allowed a reasonable time frame for them to address the issues and respond or do I need to set a new time frame as the action has changed?

[stu007]

Hi

 

Just something else to consider have you actually done a search on the Care Quality Commission website to see if the Residential Home for adults with learning disabilities is listed?

 

Here is the link: http://www.cqc.org.uk/search/site/residential%20home%20for%20adults%20with%20learning%20disabilities?location=&sort=default&distance=15&mode=html

 

If they are listed then look at the contact area as you can report serious concerns to them as a member of the public.

 

Another avenue for you to consider.

[mrpenguin]

Hi Stu007, yes they are listed but unfortunately CQC do not deal with complaints or these types of problems. They only look at issues that they find upon inspection.

 

As an aside the items being thrown over made me take more notice in what was occurring at the property and as such I observed things which I would consider to be poor care & supervision. Just for example a lit BBQ being left with only the vulnerable adults in attendance, one of the adults trying to smash a window with his elbow for about 10 minutes and no one coming to stop him. These observations were shared with the local authority & CQC but no action it appears is being taken. I did begin to question my sense of perceived acceptable levels of care - maybe they are too high!

[steampowered]

I'm not sure the fact the action has changed affects the timescale. I would ask for a response in 14 days, since it is the timescale suggested in the Pre-Action Protocol to the Civil Procedure Rules.