Lee. P Posted July 28, 2011 Report Share Posted July 28, 2011 Hi Guys need some advice please - currently taking to long term tenant to county court for rental arrears (six months). It all seemed pretty straight forward until the first hearing where she claims she has not paid the rent because of outstanding repairs. Even though she could not provide any evidence that she had informed my property managers of the alledged repairs the judge gave her 4 weeks to provide the details of the repairs and a amount of money she would wish offset against the repairs. Not surprisingly the deadline passed and she did not provide any eveidence! we are now waiting for the possession hearing and I know she has legal aid and if the judge did fing against me (unlikely but you never know) would I have to pay the court costs and more importantly her legal costs??? I would really appreciate any advice or chat to someone who has gone through similiar circumstances. Thanks Lee Link to comment Share on other sites More sharing options...
Melboy Posted July 29, 2011 Report Share Posted July 29, 2011 Stupid judge and stupid legal system. Most AST contracts these days, if not all, have a clear and precise paragraph stating that rent cannot be withheld for outstanding repairs. This should have been shown to the judge. After 6 months of no rent paid it is clearly evident she had no intention of paying the rent and as for legal aid.......beyond belief isn't it? If she does win her legal case and these days who wouldn't be surprised that she did the answer to your question is yes you would if her brief asks for costs to paid by you but yet again that is down to the judge at the time of your case to award or not. Stories like this make you wonder why anyone would want to be a landlord these days. If she could not come to court with the evidence of her main complaint then then the judge should have dismissed her appeal there and then. What's up with these people? Mel. Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 29, 2011 Report Share Posted July 29, 2011 I would expect LAW to clarify this but, I believe where a T who has informed a L of defects, and given fair opportunity for the L to carry out repairs, it is the allowable for the T to retain the monies to carry out those repairs. This does not mean ALL rent. All very ambiguous as the T is rarely qualified to assess required works and understand legal responsibilities. Mel I would expect your contract term to be seen as an unfair term, this doesn't however destroy the value of the contract in whole, I had a similar discussion with a 'silly' Judge. To digress a little, I penalise T's in default at £30 per month and legally I'm not allowed to. This situation is clearly one where the S21 wins, serve it, you just want your property back, no reasons required. Worry about money claims separately, later. Where it is intended to serve a S8 and use it I would advise see intelligence in serving a S21 at the same time as a back up. Link to comment Share on other sites More sharing options...
LLAW96 Posted July 29, 2011 Report Share Posted July 29, 2011 Firstly no term in a tenancy agreement can overrided the provisions of s.11 Landlord and Tenant Act 1985. If there is relevant disrepair and you have had notice of the need for repair and you have failed to carryout repairs in a reasonable period of time your tenant can bring a counterclaim for damages and seek an order for specific performance. I take your point that you have had no notice of the need for repair. I am presuming that at the hearing the judge gave your tenant leave to file a defence and counterclaim after which time the court has set a date to give further directions. In relation to the legal aid position this would have only been granted to your tenant if she was on a low income and the case has sufficient merit for legal aid to be granted. In addition if she has been granted legal aid her solicitors would have sent you a notice of acting and a notice confirming that legal aid has been granted. This notice will tell you the terms and scope of the legal aid certificate and your rights to make representations to the legal aid area office in relation to your tenant being granted legal aid. If she has been granted legal aid then it is a loose loose situation for you as the certificate not only covers her legal costs but also means that even if you win you will not recover your costs. Right now you should be inspecting the property in order to ascertain the nature of any disrepair and then take steps to carry our repairs (if any). If she files a defence and counterclaim you will need to file a reply, if you have no experience in doing this then you need to see a solicitor. Link to comment Share on other sites More sharing options...
Lee. P Posted July 29, 2011 Author Report Share Posted July 29, 2011 Firstly no term in a tenancy agreement can overrided the provisions of s.11 Landlord and Tenant Act 1985. If there is relevant disrepair and you have had notice of the need for repair and you have failed to carryout repairs in a reasonable period of time your tenant can bring a counterclaim for damages and seek an order for specific performance. I take your point that you have had no notice of the need for repair. I am presuming that at the hearing the judge gave your tenant leave to file a defence and counterclaim after which time the court has set a date to give further directions. In relation to the legal aid position this would have only been granted to your tenant if she was on a low income and the case has sufficient merit for legal aid to be granted. In addition if she has been granted legal aid her solicitors would have sent you a notice of acting and a notice confirming that legal aid has been granted. This notice will tell you the terms and scope of the legal aid certificate and your rights to make representations to the legal aid area office in relation to your tenant being granted legal aid. If she has been granted legal aid then it is a loose loose situation for you as the certificate not only covers her legal costs but also means that even if you win you will not recover your costs. Right now you should be inspecting the property in order to ascertain the nature of any disrepair and then take steps to carry our repairs (if any). If she files a defence and counterclaim you will need to file a reply, if you have no experience in doing this then you need to see a solicitor. Thank you and, she to my knowledge has not filed a counterclaim by the date set by the judge. Can she file one after that date has expired?? as we are still waiting for the possession hearing date. Link to comment Share on other sites More sharing options...
Lee. P Posted July 29, 2011 Author Report Share Posted July 29, 2011 Stupid judge and stupid legal system. Most AST contracts these days, if not all, have a clear and precise paragraph stating that rent cannot be withheld for outstanding repairs. This should have been shown to the judge. After 6 months of no rent paid it is clearly evident she had no intention of paying the rent and as for legal aid.......beyond belief isn't it? If she does win her legal case and these days who wouldn't be surprised that she did the answer to your question is yes you would if her brief asks for costs to paid by you but yet again that is down to the judge at the time of your case to award or not. Stories like this make you wonder why anyone would want to be a landlord these days. If she could not come to court with the evidence of her main complaint then then the judge should have dismissed her appeal there and then. What's up with these people? Mel. Fully agree - almost laughable if I wasn't the one out of pocket!! Link to comment Share on other sites More sharing options...
Lee. P Posted July 29, 2011 Author Report Share Posted July 29, 2011 I would expect LAW to clarify this but, I believe where a T who has informed a L of defects, and given fair opportunity for the L to carry out repairs, it is the allowable for the T to retain the monies to carry out those repairs. This does not mean ALL rent. All very ambiguous as the T is rarely qualified to assess required works and understand legal responsibilities. Mel I would expect your contract term to be seen as an unfair term, this doesn't however destroy the value of the contract in whole, I had a similar discussion with a 'silly' Judge. To digress a little, I penalise T's in default at £30 per month and legally I'm not allowed to. This situation is clearly one where the S21 wins, serve it, you just want your property back, no reasons required. Worry about money claims separately, later. Where it is intended to serve a S8 and use it I would advise see intelligence in serving a S21 at the same time as a back up. Wasn't aware you could issue a S21 and S8 at the same time!! Link to comment Share on other sites More sharing options...
LLAW96 Posted July 29, 2011 Report Share Posted July 29, 2011 She can lodge her defence/counterclaim at anytime, unless there is an order barring her after a fixed date or you have applied for an unless order and the time for complying has expired. You should certainly apply for an order now and ask for the judge to deal with the application without a hearing (use form n244). I am getting the feeling that your tenant does not have a solicitor acting for her. It is quiet proper for you to issue a s.21 notice then seek to recover on under the accerlerated procedure whilst having a rent claim active (or indeed include both s.8 and s.21 in the same proceedings), there is however an argument that such proceedings are an abuse of process however both claims are in effect based on different causes of actions. If the worse came to the worse you could ask for both claims to be consolidated, the court could then be asked for an order for possession based on your s.21 notice with the rent claim and claim for damages/counterclaim being allocated to the appropriate court track to be argued another day. Link to comment Share on other sites More sharing options...
Grampa Posted July 29, 2011 Report Share Posted July 29, 2011 LAW have you ever included both s8 & s21 at the same hearing and if so how do you go about it? Do you have to pay 2 fees or do you just spring the other notice on the judge at the hearing I have a horrible feeling that if I did that to a certain judge in my area I would get my fingers chopped off. Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 29, 2011 Report Share Posted July 29, 2011 Lee my way is designed to be the simplest for me, less complicated, less mistakes, more 'hope' of success. You are already close to the point here with the active proceedings. Best to go forward soonest and get it done with, hopefully. I don't usually consider S8's, they're more involved and depending on the clause/s used Judges have toooo much discretion, even when abuse is clear and obvious. My preference is a S21, these days Judges are fannying with what was designed to be straight forward . This is beside what I cynically look at as a confusing style as designed by Parliament, but let's not yet get into expiry of notice confusion, or if to use a S21 (4)a or S21 (4)b ....... We may serve notices as we feel and on 'expiry' effectively bank them for us to proceed further as we will. I have served S21's and acted on them years later the 2 months having expired, now we see how 'expiry of this notice' fits but only this week a forum participant wrote of a solicitor that understood that meant it should be binned, as it had expired . I have been known to serve a S21 and a S8, but this was to enforce my message. Also I have posted by hand, by cert of delivery and by recorded. Harassment NEVER . Link to comment Share on other sites More sharing options...
LLAW96 Posted July 30, 2011 Report Share Posted July 30, 2011 You can issue a claim which includes both s.8 and s.21 proceedings, there is only one fee to pay. When you complete the N5 claim form you tick the box for rent arrears and then at the box that states 'other grounds' you write termination of assured shorthold tenancy. The s.21 will just be added to the grounds you are relying on. When you complete the N119 you set out the claim as you would for arrears of rent at paragraph 4. At paragraph four there is a section which states 'other statutory grounds' here just write termination of tenancy by service of a notice under s.21 Housing Act 1988. The most common problem you encounter relates to the amount of notice you are required to give, 2 weeks in relation to s.8 for arrears of rent, and at least two months in relation to s.21. If you serve your s.21 notice just after the start of the tenancy then this problem should not arise. If you have not served your s.21 notice then you can issue as a s.8 claim after two weeks, if things do not go to plan for whatever reason you can then issue a further claim after your s.21 notice has expired and have the two claims consolidated, in this instance you would of course end up paying two issue fees. Link to comment Share on other sites More sharing options...
Grampa Posted July 30, 2011 Report Share Posted July 30, 2011 That is a very useful bit of information which i have never heard before, thank you. Just had a thought, can you also do it online? As it stands it costs £100 online for s8 £150 paper route and £175 for s21 which cant be done on line yet (i think). If it can be done on-line not only do you get a court hearing quicker but if the s21 added as well you could save £75. Link to comment Share on other sites More sharing options...
LLAW96 Posted July 31, 2011 Report Share Posted July 31, 2011 At the moment only rent claims can be issued on line, although I understand that this may change in due course. Link to comment Share on other sites More sharing options...
Mortitia Posted August 1, 2011 Report Share Posted August 1, 2011 That was a revealing piece of information LAW - thanks. Lee - Is there any disrepair at the property? This does seem a common way for S8 to fail - even if it is a fib. Judge sets case aside for 'reports' and tenant carries on not paying and having a laugh. Mortitia Link to comment Share on other sites More sharing options...
Recommended Posts
Archived
This topic is now archived and is closed to further replies.