Section 8 discretionary grounds hearing bad start - strategy advice required

[AGlandlord]

Hello,

I have had a difficult start to my case to evict my tenant (on discretionary grounds 10, 11, 17) with rental arrears of £300 (withheld by tenant for damages she believes landlord is responsible for).

The company (intermediary) whom I hired to manage my case has made two significant mistakes in my opinion:

1. They sent across private evidence statements and my case notes straight to the tenant. Whilst I understand the tenant is allowed sight of the defence, my notes and arguments is not that type of document. The intermediary never indicated that it would be sent to the tenant to me in conversation or in writing. Did they not have a duty of care to make me aware of this before sending the document across, particularly having seen the way that the content had been laid out informally?

2. The intermediary asked me to fill in a rent schedule and complete the particulars of claim form, except that I was asked only to sign 2 pages of the form and not fill in other content. When the hearing commenced, I learned that the form had been incorrectly filled in and the pasted rental arrears statement had only two lines on it for the wrong amounts, which the defence moved to strike off the claim (sensing that I had not filled in the form myself) - we successfully pleaded it was a clerical error.

As a result, the tenant's defence has had time to prepare their response (which they submitted to my advocate 1 day before the hearing, and not myself, and I still have not had sight of it – is this permissible?) and now put forward a counterclaim.

The judge ruled more time for me to amend the particulars of my claim, for the defence to prepare their response and counterclaim, and for me afterwards to prepare my response to the counterclaim, before the next hearing. The term 'case management' was also mentioned by the judge (which makes me wonder about the mounting legal costs now involved). The judge also hinted that he would not evict a mother and child on the basis of £300 rental arrears, which provided an insight for me.

I have several questions that now arise, having come out of the first hearing:

1. The tenant has definitely been in rental arrears, has paid the rent late and has obtained the tenancy under false pretences. I have reason to plead under grounds 12 and 13 (relating to contractual breaches and deterioration of property), but the intermediary advised me that these are harder to prove. I am wondering whether it is better to only plead 10, 11, and 17. If I do this would the tenant's counterclaim only be able to cover the scope of grounds 10, 11 and 17 - or could their counterclaim cover everything? If it can cover everything, maybe it is better to plead all grounds, and turn it into a financial claim for monies lost on my part?

2. I am questioning the wisdom of continuing the eviction, but want to avoid financial costs and even though I believe I am the mistreated party in this case, the tenant has engaged with her legal aid counsel and has submitted a housing disrepair claim which I refuted (and to date they have not pursued the matter further) - I think their counterclaim will stem from this. If the judge is not willing to evict on £300 arrears discretionary, is it technically possible for the judge to deny eviction, but order the costs of the counterclaim to be void or payable by the tenant? I am particularly concerned about the costs that the legal aid advisors might levy onto me as their legal fees. I will only be able to claim a token sum of legal costs if I win as the tenant is on legal aid and housing benefit.

3. The tenant's contract expires December 2012 (I was stupid not to include break clauses in the contract). By the time the next hearing takes place it will be around Feb 2012. I have become a new dad and want to focus on family during this time, and not the tenant; so I am considering dropping the eviction action. If I do this, do I become liable for the defence's legal costs and automatically responsible for their counterclaim - in other words do I effectively become the defendant? If i have to approach the subject of settlement, what is the best way to go about this?

4. In summary, the tenant is a single mum with baby who is £300 in breach of rental arrears (Ground 10), pays 4 days late on average (Ground 11) and used a friend at a company to write a false letter of employment for a job she never intended to take (Ground 17). How would you rate my chances of the judge granting the eviction / costs, considering the tenant will counterclaim on the basis of furthering the housing disrepair claim?

5. I am furious with my intermediary in all of this. They have been poor communicators throughout, and I have (stupidly) paid for their services already in full. Because they submitted my private evidence statements to the tenant and advocate (but not the judge) and submitted incorrect information on my behalf on the claim form, I feel that they have sabotaged my case. I am wondering whether I should:

a) Ask for a full refund and engage with a proper solicitor

sue them for the mistakes they have made, particularly if a counterclaim was avoidable had my claims form been correct in the first place

c) ask that they bear the full legal cost of action and (possibly) damages if we lose, as they have put my case into jeopardy in the first place

d) Put up with them in order to further my case, as I don't want to be fighting on two fronts.

6. I have noted that the tenant has returned to employment earlier this year from the internet (before seeking legal aid), and am wondering whether to challenge her eligibility to receive housing benefit or legal aid if she is now in employment and earning above the eligibility thresholds. This might be a poor thing to do, but I think I have been more than hard done by through what she's been able to get away with. What are the eligibility thresholds for housing benefit and legal aid, and how could I determine if the tenant is being paid above this limit?

I appreciate there's a lot of questions here, and you may have some questions in response to try to assist me, I will answer all I can, and thank you in advance for advice you can impart, especially where it helps me to determine my strategy.

Kind Regards,

________________

AG Landlord

[Guest caravanj]

Any Section 8 is fraught with difficulties because it's a T's classic defence ploy to use disrepair to justify not paying rent. Your intermediary should have discussed the pros & cons of a Section 8 & suggested that you considered a Section 21.

By intermediary I'm assuming you've used an eviction firm? They should not have sent any paperwork to your T except the Section 8 & any other statutory notices which tells your T the grounds of your case.

The only requirement is that any case-related or evidential papers that you want the court to consider are lodged with the court not less than 2 days before the hearing.

Regarding you T's employment I'd definitely report it, you'd be a fool not to, because whilst on legal aid she can spin out the case for as long as she wants & bankrupt you.

Regarding the false employment reference I would report this to the police & ask them to investigate your T for committing fraud by false representation & both your T & her friend for conspiracy to commit fraud by false repesentation. ( Fraud Act 2006 Section 2 )

Who was your intermediary & how much have you lost to date by their negligence? I'd cut your losses & employ a new firm & concentrate on getting you T sorted out.

I used a specialist eviction firm who did a brilliant job with a very tricky case at an extremely reasonable price. A solicitor will be very expensive & not necessarily the best option.

If you want details then please send me a message & I'll put you,in touch with them. Their advice is free & you can talk as long as you want to them before you decide.

[Richlist]

I have no experience of eviction but raise the following points/ questions:

* £300 in rent arrears doesn't seem to amount to very much. Wouldn't the best approach have been to use an S21 instead of an S8 and then to follow up with court/ baliff action as necessary ?

* Presumably there is a deposit from which you could have claimed the £300 arrears at the end of the tenancy ? Surely the costs of the work to date are likely to exceed the amount claimed ?

* Raising an issue over rent being received 4 days late seems to me to be overly critical. Late rent receipts of 4 days or more is not out of the ordinary and a little flexibility on your part might be better.

* What are the details of the disrepair counterclaim ? Many landlords fall foul of their statutory obligations in this respect.

[Mortitia]

I agree with what Richlist states.

I have successfully evicted under Section 8 recently using a solicitor to send notices and advise me initially. He immediately pointed out the possibility of the tenant claiming 'disrepair' but I reassured him that the property was in very good condition. I also issued Section 21 at the same time just in case the 8 failed for some technical reason. Don't forget that with the Section 8 you get your legal costs paid by tenant (if working?)

Seems that some of the firms that offer S8 and S21 services are very flakey to say the least. I might be tempted to carry on without the intermediary and demand my money back!

Mortitia

[Carryon Regardless]

I hope your T has lots of dosh.

You're putting great expense and effort into recovery of a small amount, is it likely you will recover any costs the Court 'MAY' award.

I've said before and agree with others comments,

S21 and get the place back, concern of outstanding amounts is a later consideration.

S8 is generally far toooooo discretionary, your feeding the vultures.

[AGlandlord]

Thank you all for your replies - which have given me good steer.

In response to the questions made:

1. I can claim on the deposit for the rental arrears, so this is an option - I issued the section 8 as the tenant has been causing difficulties under grounds 12 and 13, but as these are harder to prove (and more discretionary), I waited until she withheld rent to make ground 10 eligible.

2. The housing disrepair claim has followed initial stages of the ELN and pre-action protocol. I have responded to the tenant's two letters, which were issued prior to the eviction notice. None of the claims is substantiated and I have never neglected my obligations as a landlord.

I now have the following questions:

1. What is the best way to back out of the eviction action, without incurring legal costs from the tenant or their solicitor?

2. What is the best way to find out the tenant's employment thresholds?

3. Should I consider compensatory or legal action against my existing intermediary?

Many thanks for your replies in advance, once again.

Kind Regards,

AGlandlord

[Carryon Regardless]

1. I can only think of staying with the offensive (call em ugly) but negotiate with a style that is letting them off with some of their responsibility.

But it's a judgement call based on too many things that we are unable to understand here.

2. ??

3. Argue for fee waivers, long legal battles just feed other vultures and take your life away.

[Chestnut]

I agree with all previous advice offered. Was all your effort just to recover £300?

If deciding to use Section 21 I wouldn't risk adding further potential harrassment.

Suggestions

1)Avoiding incurring tenants legal costs? I don't know - but bear in mind you brought on the eviction case to its present stage so be prepared to accept some T's costs as you withdraw.

2)T's employment threshhold? Why bother? Risk of more potential harrassment and costs.

3) If you had a contract with intermediary, have a close look at it. You might be able to sue, at least for any costs incurred as in 1 above.

[Richlist]

1. What is the best way to back out of the eviction action, without incurring legal costs from the tenant or their solicitor?

Virtually impossible. You initiated the action so, I can't see them doing anything other than look to you for their costs. You have a legal representitive......they should be able to provide you with a definitive answer.

2. What is the best way to find out the tenant's employment thresholds?

Thats an easy one......always, always BEFORE you commence any action that will require them to pay you some money. Its a bit late wondering if they have enough income to pay your claims now.

3. Should I consider compensatory or legal action against my existing intermediary?

Given the content of your post and the questions being asked ......I have to ask ......have you employed a qualified & experienced legal representitive ?

[fool_me_once]

Hello AGlandlord,

I am in a similar situation to you. What's the update on your case?

[pcbubba]

Hi Guys

I have been reading your post with interest, I am a landlord myself and struggle to come to terms with the way some tenants behave.

I was in a very simular situation a while back, and much to contrary belief most Landlords are not loaded with endless cash.

I could ill afford to go to solicitors, and looked online for advise, I came across a company called Landlord Assist, and I have to say they were so helpful, I just rang them with my problem and they offered me free advise over the phone, nothing was too much trouble and they gave me some good advise just like the guys on here, so not all these companies are bad, there are some good guys out there, why dont you give them a ring too !

Good luck

[LLAW96]

1. Depends whether your tenant has served a defence as yet, if not then you can discontinue your claim without any financial penalty. Discontinuance is a unilateral act and does not require permission of the court. Once you discontinue a claim you cannot rely on the same facts in any subsequent proceedings. If they have lodged a defence, then its up to you to negotiate with the Defendant on the basis that each party meets its own costs, if they have a legal aid certificate to defend then you can expect that they will want costs.

2. Credit check and then make your own mind up in relation to their circumstances.

3. If you are using a solicitor then complain to the SRA if you are using an agent then look to a claim for breach of contract your starting point should be The Commercial Agents (Council Directive) Regulations 1993, google it.