Case summary
A homeowner wanted to bring an action against a large property developer claiming charges for the maintenance and upkeep of a public open space surrounding a housing development they had built.
- The homeowner no longer lived at the property, the maintenance charges were being backdated and the developer was claiming the charges as a debt to be paid.
- To challenge the payment of the debt, the legal avenue would be to seek a determination by the Lands Tribunal as to the validity of the restrictive covenant.
- The public open space was substantial but could not be clearly identified until the development had been completed. In the meantime, the requirements for maintenance and keeping the space tidy were onerous.
- The case was of importance to all the homeowners in the development as they were all legally bound to contribute to these maintenance charges.
Temple provided ATE cover for the client homeowner to make an application to the Lands Tribunal and seek a declaration that the developer was not entitled to enforce the restrictive covenant requiring the homeowners to contribute to the cost of maintenance of the public open space.
Outcome
The client homeowner was successful in the Lands Tribunal. It was determined that the covenant was invalid and unenforceable against the homeowner. Therefore the debt claimed by the developer against the homeowner was unenforceable and written off.
The homeowner may not have had the willingness to bring the case, with the concern as to the risk in their mind, that if they lost they would end up paying the other sides’ costs. This would be in the forefront of the mind for anyone taking on and challenging a large property developer.
With the benefit of the Temple ATE policy this ‘levelled the playing field’ so the homeowners were able to bring their case safe in the knowledge and confidence as to their financial liability if they either won or lost their case.
The Temple perspective
We were pleased to be able to support the homeowner. In these situations, it can be difficult as an individual to take on a property developer. The homeowner was aware that, if they were unsuccessful in their case, they would have to meet sizeable legal costs of the developer.
The ATE cover and solutions provided the policyholder with the peace of mind that, if they lost the case, the developer’s legal costs [known as adverse costs] were covered under the insurance policy and that we would step in and ‘pick up the tab’.
The client’s perspective
This knowledge and assurance gave the homeowner the confidence to bring the case safe in the knowledge that the cost of the ATE insurance premium providing the protection was both deferred and contingent upon a successful outcome. They also could have had assistance with disbursement funding to run the case.
If I can assist with any enquiry regarding a property dispute claim please send an email to or if I can assist with any other commercial litigation case do also please get in touch.
Jamela Collins
Senior Underwriter
Jamela Collins
Jamela qualified as a Solicitor specialising in litigation. She has extensive experience specialising in commercial, construction, inheritance and insolvency claims. She has also worked at RSA as a Team Leader.
Jamela has joined the commercial team as a Senior Underwriter in 2023 and is very much looking forward to using her litigation and insurance experience to support Temple’s customers with market leading products and services.
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