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bedlington83
26-01-2009, 13:45 PM
Hello

I am currently in dispute with my former landlady and would appreciate any advice that you feel you can offer.

In September last year while I was working away from home at the opposite end of the country (England – I know it makes a difference legally) I responded to an advert for accommodation. It was placed by a woman who ran her own business and who had recently bought a three bedroom house. She had converted the open plan lounge/dining room into an office and one of the bedrooms into a lounge and was looking to rent the upstairs out. The third bedroom housed the server for the office downstairs and was almost always locked although I did see into it once when I moved in. The kitchen and bathroom were shared.

We signed an agreement and I moved in. It very quickly became clear that things were not going to work out due to her obsessive requirements over cleanliness. Things eventually came to a head after two weeks when I received this e-mail;
I am giving you 1 months notice from today 18th Sept to vacate <the premises>, if you wish to leave earlier then let me know.

This was followed by a few more e-mails where she repeatedly complained about "disgusting" and "filthy" marks like the faint coffee stain on the kitchen work top (I don't drink coffee, she does) that she ordered me to clean.

Then on Sunday 5th October I got this
You have continually ignored my requests for keeping the kitchen and bathroom areas clean, therefore, you have become a nuisance to me the owner.

I am informing you that your items and personal belongings have been removed, they are bagged and boxed and will be kept safe and available for collection on Monday.

After 5.30pm they will be placed outside, in front of the garage. (some of the food you have in the cupboard is rotten and stale, I have put this in a plastic carrier bag - items in the fridge will remain there until 5.30pm).

Also, in accordance with the obligations you have as a sharer, you will pay for damages etc. You neglected to inform me that you broke the Coffee Percolator - this will be replaced and charged to you. (You may have the broken one)

You will pay all costs incurred for cleaning the bathroom and kitchen again, also your bedroom. (£14 was paid to the cleaner for 2 hours previously and it will be paid again, totalling a £28 charge to you)

I will also retain £100 until the safe return of my back door key.

Deductions will be taken from the over payment you made for rent this month and I will forward a cheque for any monies owed to you in due course along with costings/deductions.

I will send you a cheque for the deposit of £550 on Monday.

I was unable to get there before the 5.30pm deadline. When I arrived at around ten o’clock my belongings were outside

I originally claimed £8k+ for illegal eviction on the basis that the agreement is an AST but, because of the doubt over whether it is or not, and the fear of the costs going via the fast track, I changed it to £4265.73. This is the amount that I claimed at the small claims court via money claim online and it is in relation to this that I have my first question.

I recently noticed via the money claim on line web site that a defence had been filed so I rang to ask for a copy of the defence and was told it would arrive in a couple of days. When it didn’t I rang up again and was told that there was a backlog and they couldn’t tell me when it would go out. I was also told that I had until 12th February to return the allocation questionnaire, which I also haven’t received. After being pressed they said that they couldn’t guarantee to get a copy of the defence to me before the deadline for the allocation questionnaire.

My questions are; does it matter if I don’t see the defence before I complete the allocation questionnaire? If so, how do I prevent the judge from striking my claim out for a failure to complete the questionnaire in time?

Obviously, in the absence of a copy of the defence I cannot know exactly what its going to say but I am fairly confident that she will claim that she lives at the house even though its completely untrue. (I say this because she always puts the address of the house at the top of letters rather than her home address) This brings me to my next question: If she had been resident would it affect my claim in any way and, if it would, will it be down to her to prove that she does live there or me to prove that she doesn’t?

I’d also be grateful for any advice those of you more experienced than me could give me about how I should play this in court.

Below is the text of the agreement, which I’ve been told is definitely an AST (from my first very expensive solicitor) is definitely not an AST (from my current, not quite so expensive solicitor) and that its borderline (from a barrister acquaintance of my wife).

Thanks in advance

Andy

House & Flat Share Agreement


Section 1 - The Parties

The Owner:

Dodgy Landlady


The Sharer:

Bedlington83

Section 2— The Premises

Address Of Premises to Let:

<the premises>

The Rental Period Shall Commence on the: 1st Sept 2008

The Deposit is: £550.00

The rent amount is £550.00

The Rent is payable in advance on the 1st of each month

The agreement shall end on the 28th February 2009


Section 3- Terms and Conditions

The Sharers Obligations Are:

1. Rent, to pay the rent on the appointed day.
2. Deposit, to pay the deposit as requested for security for any loss or damage to the premises or contents.
3. To pay interest at a rate of 2% above base rate upon any rent which is 7 days late, whether formally demanded or not.
4. The sharer is to be allowed, in conjunction with the occupation of the room to use the facilities and common parts of the property, as may be at the property.
5. Not to do or permit anything to be done which might make void or voidable the insurance of the owner, or occasion an increase in the premium. Any increase in the premium due to the sharer’s actions may be charged directly against them.
6. Not to carry on any profession, trade or business on or from the premises.
7. Not to assign, sublet, charge or part with or share possession or occupation of the room or any other part of the property.
8. Not to keep or do anything on the premises, which might cause a nuisance to either the owner, any other occupier or any neighbours. The sharer is responsible for his or her guests.
9. Not to have any drugs, or other illegal items on the premises other than over the counter drugs and drugs prescribed by a medical practitioner.
10. Not to keep pets at the premises without the consent of the owner.
11. Repairs, to keep the premises in good repair, and to pay for the replacement value of any damage done, either to the property or contents. Fair wear and tear excepted.
12. To Report to the owner and damage to the property or contents.
13. Not to make any alterations, or carry out any decorations without the prior written consent of the owner.
14. To allow the owner, or any duly authorised agent with the owner’s permission, after giving at least 24 hours prior written notice, to enter and inspect all areas of the premises, including the sharer’s room, for the purpose of inspection, repair and the taking of meter readings. (In cases of real emergency the requirement of notice need not be complied with.)
15. To pay to the owner all charges, costs and expenses incurred by the owner at any time during the let arising as a result of a breach of any of the terms of this agreement.
16. To leave the property at the end of the let in good repair and condition, upon the date so appointed and yield up all keys to doors, windows and any other items, for which the owner will provide the sharer with a receipt.
17. To pay for any cleaning costs and removal or rubbish that may be necessary after the let has come to an end in order for the owner to re-let the premises.

MrJohnnyB
26-01-2009, 13:50 PM
As a lodger you don't hold an AST (or that is my understanding) infact you have very few rights! I'm not a residential expert, but as far as I understand you cannot be in an AST

islandgirl
26-01-2009, 14:02 PM
I thought you could only be a lodger if the owner lives in the house - if she doesn't (and you can prove it) things may change?

Bel
26-01-2009, 14:04 PM
What the agreement says is nearly irrelevant. Its what happens in practice that counts.

My understanding is that for the tenant to be an excluded occupier (eg lodger); the LL has to be resident and sharing accomodation.

Normally I would expect the LL to be living there (sleeping and eating) and it to be their number 1 home.

If they are not there for more than 50% of the total time day or night, do not eat and sleep there, then I doubt if they are resident. Do you have another 'home' address for her?

Have you tried 'Shelter' helpline?

You need a solicitor who thinks it is an AST!! Does he have much knowledge of Landlord and tenant law? Have they not taken advice from a barrister?

You could try the landlordlaw.co.uk website; you can ask a question which MIGHT be answered, but you may need to join to get legal advice on the forum.

jeffrey
26-01-2009, 14:05 PM
I thought you could only be a lodger if the owner lives in the house - if she doesn't (and you can prove it) things may change?
Yes. If L is resident, OP is only a lodger. If L is not resident, OP is a tenant- with security of tenure.

MrJohnnyB
26-01-2009, 14:17 PM
Sorry i presumed that L actually lived there. Sorry if I have presumed wrong.

bedlington83
26-01-2009, 14:17 PM
What the agreement says is nearly irrelevant.
Why do you say this? Its a legally binding agreement.


If they are not there for more than 50% of the total time day or night, do not eat and sleep there, then I doubt if they are resident. Do you have another 'home' address for her?
Yes, and its her real home address that the court claim was delivered to

bedlington83
26-01-2009, 14:32 PM
As a lodger you don't hold an AST (or that is my understanding) infact you have very few rights! I'm not a residential expert, but as far as I understand you cannot be in an AST
My first solicitor said it was definitely an AST because it had all the elements of an AST; A fixed period, rent, and exclusive possession (by virtue of clause 14).

bedlington83
26-01-2009, 14:35 PM
Yes. If L is resident, OP is only a lodger. If L is not resident, OP is a tenant- with security of tenure.
Thanks for this. She definitely wasn't resident but my difficulty is in trying to prove that she wasn't. She will probably lie and say that she was so that she can get out of paying me. Then it'll be my word against hers

jta
26-01-2009, 14:42 PM
Have you got a copy of your Council Tax bill? Other Utilities in your name?

bedlington83
26-01-2009, 15:17 PM
Have you got a copy of your Council Tax bill? Other Utilities in your name?
I was only there for five or six weeks so no, I don't.

jeffrey
26-01-2009, 15:18 PM
I was only there for five or six weeks so no, I don't.
OK: so what evidence do you hold to show that:
a. L was not there; and
b. you were there?

bedlington83
26-01-2009, 16:59 PM
OK: so what evidence do you hold to show that:
a. L was not there; and
b. you were there?

Unfortunately I can't think of anything substantial. I wasn't there very long. My previous solicitor rang her to tell her that what she was proposing was both a civil and criminal offence and her non-residence was also mentioned. It might also be mentioned in the letter that I subsequently got from the solicitor. I'll try and find it.

I can prove that I was there easily enough - I have voluminous correspondence where she complains about the state that I've left the property. You know, disgusting things like failing to wash the underside of the washing up bowl and not standing it on its side to dry. That sort of thing. If I wasn't there I couldn't have done the things that she complains about.

In the correspondence (which I tried to post but there's too much of it) she doesn't gainsay my claim that the property is her office but my home. Its pretty weak I know but how can you prove that something didn't happen?

jeffrey
26-01-2009, 17:01 PM
A lot hinges on you proving that L was not a resident L. The onus of proof's on you, not on her.

Bel
26-01-2009, 23:36 PM
Why do you say this? Its a legally binding agreement.




Sorry to confuse the issue.

Just because your written paper doesn't say that it is an assured shorthold tenancy, doesn't mean that it can't be an AST. A court will look at your circumstances to decide what tenancy you have, and therefore what rights you have.

Many LL's have tried to take advantage by putting unfair terms and denying tenants their rights in written agreements; that is why circumstance is always looked at.

Bel
26-01-2009, 23:48 PM
Do you really think she would/could lie bearfaced to a judge and face cross examination from you that she was not resident?

Other ways to show LL is not resident:

Any chance you could find out the name of a previous tenant as a witness to the fact she does not actually live there?

Does LL have a spouse? Where do they live?

Draw a floor plan from memory to show that no bedroom exists.

Did you have a land-line contact telephone number to contact her (presumably her home number?)

Look at electoral roll for the property, and for her home address.

Try and get hold of council tax payments? (is there a single person discount?)

Was there parking outside? Did you notice if her car was there at night?

Evidence of toothbrush in the bathroom. Her food in kitchen area?

How did you hear of the place? Newspaper advert? Does it say anything to help you?

bedlington83
27-01-2009, 06:43 AM
A lot hinges on you proving that L was not a resident L.
Could you expand on this a little? Its just that I got the impression from my solicitor that it didn't matter - the protection from eviction act would still apply. She seemed to know what she was talking about but then she's more used to doing legal aid cases for people that have just been made homeless rather than (atypical) fee earning work like I'm giving her.

bedlington83
27-01-2009, 07:02 AM
Do you really think she would/could lie bearfaced to a judge and face cross examination from you that she was not resident?
Quite possibly. Why else would she put the office/rented accommodation as her address on every piece of correspondence, including the acknowledgement of service even though the claim was sent to her home address.


Any chance you could find out the name of a previous tenant as a witness to the fact she does not actually live there?
I was the first tenant


Does LL have a spouse? Where do they live?
She's divorced


Draw a floor plan from memory to show that no bedroom exists.
I could do this but doesn't it still leave it as my word against hers?


Did you have a land-line contact telephone number to contact her (presumably her home number?)
I don't have a land line number, but I do have her home address


Look at electoral roll for the property, and for her home address.
How do I do this? I've got copies of the documents held by the land registry for both houses. All these seem to show is that she owns both of them with a bank having a second charge (i.e it doesn't prove things either way)


Try and get hold of council tax payments? (is there a single person discount?)
Again I wouldn't know how to do this, but I agree that there may be some mileage in it, particularly if she's registered for business rates.


Was there parking outside? Did you notice if her car was there at night?
Hers was parked there during the day, mine at night


Evidence of toothbrush in the bathroom. Her food in kitchen area?The only toothbrush was mine. It isn't me that needs convincing - I know she wasn't there :)


How did you hear of the place? Newspaper advert? Does it say anything to help you?
From a letting web site (I can't remember which one). It would be very helpful if I still had the ad because it mentioned that I would have exclusive use of the whole place evenings and weekends and that she only required minimal use during the day. Unfortunately I no longer have it. I'll have a look through my archived e-mails (I never delete them). There may be something there

Mars Mug
27-01-2009, 07:59 AM
]I can prove that I was there easily enough - I have voluminous correspondence where she complains about the state that I've left the property. You know, disgusting things like failing to wash the underside of the washing up bowl and not standing it on its side to dry. That sort of thing. If I wasn't there I couldn't have done the things that she complains about.

How did you receive this correspondence from her? If it was by normal mail this would not only show that you lived there, but would also indicate that she did not. If it was by notes shoved under your door then this may actually work against you by suggesting that she possibly did live there.

bedlington83
27-01-2009, 08:49 AM
How did you receive this correspondence from her? Mostly by e-mail. There is at least one letter but she adressed it to me at my home address (i.e. where I am now) with her address as the place that I was staying (i.e. not her home address). She's been pretty cute about it with the benefit of hindsight

jeffrey
27-01-2009, 10:07 AM
A lot hinges on you proving that L was not a resident L. The onus of proof's on you, not on her.


Could you expand on this a little? Its just that I got the impression from my solicitor that it didn't matter - the protection from eviction act would still apply.
Section 3 of the Protection from Eviction Act 1977 explicitly does not apply to an excluded tenancy/licence: see that section, and s.3A, below.

3. Prohibition of eviction without due process of law.

(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and:
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,

it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.

(2) In this section “the occupier”, in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy.

3A. Excluded tenancies and licences.

(1) Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section.

(2) A tenancy or licence is excluded if:
(a) under its terms the occupier shares any accommodation with the landlord or licensor; and
(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

(3) A tenancy or licence is also excluded if:
(a) under its terms the occupier shares any accommodation with a member of the family of the landlord or licensor;
(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the member of the family of the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part; and
(c) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises in the same building as the shared accommodation and that building is not a purpose-built block of flats.

(4) For the purposes of subsections (2) and (3) above, an occupier shares accommodation with another person if he has the use of it in common with that person (whether or not also in common with others) and any reference in those subsections to shared accommodation shall be construed accordingly, and if, in relation to any tenancy or licence, there is at any time more than one person who is the landlord or licensor, any reference in those subsections to the landlord or licensor shall be construed as a reference to any one of those persons.

(5) In subsections (2) to (4) above:
(a) “accommodation” includes neither an area used for storage nor a staircase, passage, corridor or other means of access;
(b) “occupier” means, in relation to a tenancy, the tenant and, in relation to a licence, the licensee; and
(c) “purpose-built block of flats” has the same meaning as in Part III of Schedule 1 to the Housing Act 1988;

and section 113 of the Housing Act 1985 shall apply to determine whether a person who is for the purposes of subsection (3) above a member of another’s family as it applies for the purposes of Part IV of that Act.

bedlington83
27-01-2009, 11:19 AM
Section 3 of the Protection from Eviction Act 1977 explicitly does not apply to an excluded tenancy/licence: see that section, and s.3A, below.
Thanks for that Jeffrey. So all she needs to do is turn up at court and say I'm excluded from protection from eviction because she lived there and the emphasis is on me to prove that she didn't? This is a nightmare.

The only evidence I have, and its very flimsy, is from an e-mail she sent after I told her that if she didn't pay I would take her to court;
"Your were a lodger "House/Flat Sharer" - you shared various rooms with me, walking through my office to get to other parts of the house."

Mind, if I use that she could also use the bit where she says "You were given every opportunity on various occasions to make clean the mess that you continually left in both the bathroom and kitchen and as you shared my house..." as evidence that she did live there. Yes I shared her house but she used it during the day as an office, nothing else

I suppose the only thing I can do is find evidence of her declaring her real address as her home but all the "search the electoral roll sites" want an extortionate fee - the most recent one I found wanted £150.

jeffrey
27-01-2009, 11:23 AM
Thanks for that Jeffrey. So all she needs to do is turn up at court and say I'm excluded from protection from eviction because she lived there and the emphasis is on me to prove that she didn't?
It depends.
If L takes you to Court and claims that you did not have security, L would have to prove that she was resident.
If you take L to Court and claim that you did have security, you would have to prove that she was not resident.

Bel
27-01-2009, 11:52 AM
Isn't the local electoral role a public document? I thought that it was accessable at the local library. Ring them up and see if they hold it. What I am hoping is that she is registered to vote at her HOME address.

Regarding council tax; you could try and blag it on the phone.

" I never paid council tax for period xyz do i owe you anything? I was the only person resident at the time. " ...and take it from there.

I know you are trying to get concrete evidence that she does not live there. But your testamony must count for something. By including the little details, it makes it more convincing.

I think that the council (rates) may hold floor plans for all properties; I dont know how accessible they are. I saw a plan produced by a surveyor who was assessing for a capital gain valuation once. If you can show what space is available; what you occupied, and what you witnessed it may just help with the overall picture.

You could try to contact the website to see if they will help you with the advert perhaps.

If you can show she owns the home address; ask the question why would she choses to live with a lodger at her offices. It doesn't seem to add up.

Does anyone live at the property now?

Best of luck.

bedlington83
27-01-2009, 12:14 PM
It depends.
If L takes you to Court and claims that you did not have security, L would have to prove that she was resident.
If you take L to Court and claim that you did have security, you would have to prove that she was not resident.
I'm taking her to court so it looks like I'm going to have to prove she didn't

MrJohnnyB
27-01-2009, 12:17 PM
I'm taking her to court so it looks like I'm going to have to prove she didn't

good luck with that, i think you're going to have a fairly difficult time doing that.

bedlington83
27-01-2009, 12:25 PM
Isn't the local electoral role a public document? I thought that it was accessable at the local library. Ring them up and see if they hold it. What I am hoping is that she is registered to vote at her HOME address. I believe there is a copy in the local library but I have two difficulties with this. The first is that the library is local to where I was staying, which is at the opposite end of the country to where I am now. The second is that it appears she has registered on the "don't make my details public" roll so it wouldn't help me anyway. I know she has been registered in previous years (and I'm hopeful that this includes her at her present address) but the web site that found her wants £150 for the info because it comes from a previous year.


I think that the council (rates) may hold floor plans for all properties; I dont know how accessible they are. I saw a plan produced by a surveyor who was assessing for a capital gain valuation once. If you can show what space is available; what you occupied, and what you witnessed it may just help with the overall picture.
[...]
If you can show she owns the home address; ask the question why would she choses to live with a lodger at her offices. It doesn't seem to add up.

At last some good news! I have somewhere (although I can't find them at the moment) all the land registry data on both properties. She is shown as owner of both. The key development though is that I've found, in an old folder of e-mails on my laptop, an e-mail I sent to my wife shortly after I moved in. Attached to it is a video tour of the whole house that clearly shows the office downstairs and the converted (to a lounge) bedroom upstairs. It isn't quite proof because the third bedroom isn't shown beyond the door (because it housed the server for the office and was permanently locked). It does however, make that question you suggest a particularly good one to ask.


Does anyone live at the property now?
I've no idea

Mrs Jones
27-01-2009, 12:26 PM
all the "search the electoral roll sites" want an extortionate fee - the most recent one I found wanted £150.

The electoral role is indeed a public document. If it is not available at the library it will be available at your local council offices. Ring and ask. Look at both addresses. She should only be registered at one - and it is likely to be her home address, not her business address.

Also, if she is running a business from the house you were living in, would she not have to pay business rates? If not, why not?? Perhaps the local council would like to know about this......

Stop worrying and start gathering evidence!!! Every little bit will help!

jeffrey
27-01-2009, 12:30 PM
Clarification:there are TWO versions of the UK Electoral Roll.
One is the full list of all registered to vote. No-one can copy it, although it is available for public inspection in person.
The other is a version which anyone at all can buy. It is edited (i.e. voters can opt-out of it, e.g. to avoid mailshots and suchlike spam).

gdturn
27-01-2009, 12:31 PM
There are two versions of the Register of Electors - Full and Edited.

The Full version lists everyone and can be viewed at your local council. This is the one you need to go and look at. Give the elections office a call to find out where they keep it.

Don't bother looking at the Edited register. It is sold for marketing purposes and voters have the right to have their name taken off it so they aren't bombarded with junk mail. If your landlady ticked the box to 'opt out' when she filled in her voter registration form she won't be on it.

Mrs Jones
27-01-2009, 12:32 PM
So the one available for public inspection in person should contain the information he requires?

bedlington83
27-01-2009, 13:03 PM
Unfortunately the one available for public viewing probably won't include her details. However, Companies House are much less reticent about publishing people's names and addresses. In her company's return is the list of all officers of the company with their home addresses. As a director and sole shareholder her name and address are there several times. The only slight fly in the ointment is that the latest return - due in July 2008 - still hasn't been filed, but at least I can now prove that she lived in the house in 2007 and that she still owns it.

Mrs Jones
27-01-2009, 13:06 PM
The electoral role is a list of addresses showing who is registered to vote at that address - so I think you will find that the one available for public viewing will show this information.

bedlington83
27-01-2009, 13:52 PM
My apologies - you're quite right. I didn't read your post properly and missed the "in person" bit. The trouble is that the office that contains the electoral roll for the area that we're talking about is in the South West of England and I'm in the North East. I'll try ringing them and see what they say

worzelgummage
27-01-2009, 14:32 PM
My apologies - you're quite right. I didn't read your post properly and missed the "in person" bit. The trouble is that the office that contains the electoral roll for the area that we're talking about is in the South West of England and I'm in the North East. I'll try ringing them and see what they say

where exactly in the SW? I'm down that way and if it wasn't too much trouble for me I'd pop in and have a nosey at the electoral roll.

I think you should contact the council as you potentially need to pay Council tax for the time you rented the property - if you can get a ct bill in your sole name for the property that helps your case.

Planner
27-01-2009, 19:29 PM
Hi bedlington83.

Nice to see you took my advice, and its helping a little on here?!

Keep us posted of your progress.

worzelgummage
28-01-2009, 06:56 AM
Is there any issue that the OP had another home during this time (I'm assuming that as you said you were working away from home in your 1st post)?

bedlington83
28-01-2009, 07:06 AM
Is there any issue that the OP had another home during this time (I'm assuming that as you said you were working away from home in your 1st post)?
Its an interesting question, but as far as I'm aware it doesn't make any difference. I certainly haven't considered it before now.

bedlington83
28-01-2009, 12:16 PM
Well despite what Northampton told me, I have received a copy of the defence. Its bewildering: The sort of thing that makes you shake your head and get a headache as you try to work out what they're on about. I was going to put an anonymised version of it up here but would I be jeopardising my claim if I did?

Paul Gibbs
28-01-2009, 13:30 PM
maybe post the relevant legal arguments?

bedlington83
28-01-2009, 14:29 PM
maybe post the relevant legal arguments?
There aren't any.

There's a resume of what happened prior to moving in that's fairly accurate. A couple of minor inaccuracies over what was said but nothing relevent to the claim (e.g. she said that one of the reasons I left the previous place I was staying was because the kitchen was always a mess. I didn't say that and it wasn't). She also says "I explained that as I am using the property for business during the day, 8.30/45am — 7pm, the bathroom and toilet had to be left clean at all times, as I have clients and friends that visit"

Then there's a couple of paragraphs about how much she charged me and how she worked it out, and how much of a bargain it was.

This is followed by a list of e-mails during which she (rightly) points out that I copied my wife in to one of them (I must've cc'd her in rather than my normal bcc) and that my wife works at a barristers chambers as a fee clerk. She does but its difficult to see the relevance. (The reason I copied her in at work was that the correspondence was amusing one of the civil barristers).

She then tries to justify her actions by my claiming its because I left the place in a "filthy" state "....the work tops left with splashes from food, the floor covered in splashes, something I was not going to continue living with. I gave him notice to leave my house."

She then admits to packing my things up and leaving them outside and that she "covered and wrapped them in polythene to keep them dry, placed them at the side gate which protects them"

The only other things that might be relevant, in the sense that they might reveal where she's coming from is a sentence that starts "When I took Andy in as a lodger, it was just that" and a further sentence that says "I have enclosed a copy of the Contract I gave Andy — I would like to add that he did not fulfil his sharers obligations and as you have read I did email on numerous occasions and ask for him to apply some basic hygiene rules, but to no avail". Where I think she's coming from on the second point is that, when she e-mailed me to tell me my stuff was packed and out on the streets she "justified" it with the following sentence: "You have continually ignored my requests for keeping the kitchen and bathroom areas clean, therefore, you have become a nuisance to me the owner"

Bel
28-01-2009, 17:56 PM
So it seems that she is not actually saying that it is her home, (although don't be lulled into a false sense of security)

All the better for you. On the face of it, it seems encouraging.

What she basically says is that she doesn't know housing law. So she is not taking legal advice?

bedlington83
29-01-2009, 07:38 AM
I agree that it's moderately encouraging but don't worry - I'm not getting complacent. Throughout all the correspondence she seems to be trying to create the impression of living at the office without actually saying it. I think I might take your advice about the room plan and try and get her to agree it without a bedroom for her before I start on about protection from eviction. I'm not sure how effective that will be because my court bundle will contain a copy of the protection from eviction act and she's not so stupid as to ignore it (I don't think).

I have no idea about whether she's taken legal advice or not but if she has it doesn't seem to be very good. I suspect that its a combination of Google and her accountant that are advising her. She didn't respond when I suggested, prior to being evicted, that we should get our legal representatives together to sort it out.

Its puzzling because my solicitor spoke to her at length about what she was proposing to do and told her that she was breaking both criminal and civil law but she went and did it anyway. Ok, so you don't accept advice from the other side's legal team but when such serious allegations are made against you, surely you'd want a friendly opinion? I know I would.

It could be that her logic runs something like; I own the house, I use the house as an office, we both use the kitchen and bathroom, therefore we are sharing my house, therefore its a house share agreement, therefore he's a lodger without any rights. Its not an entirely illogical point of view. If she's then taken legal advice and gone in giving the clear impression that she lives there, her legal advisor will have had no reason to question it and told her that I don't have a leg to stand on.

bedlington83
29-01-2009, 10:40 AM
I've got the allocation questionnaire and I'm reasonably comfortable with completing it but I'm a bit concerned that I haven't yet had the opportunity to go into any detail about my case. Does that happen after the allocation questionnaire has been returned or should I have done it on the original claim form (I didn't - all I put was damages for illegal eviction and the speel about interest)?

worzelgummage
29-01-2009, 11:26 AM
I've checked out the electoral roll for you - the same lady is registered at both addresses you gave me.

bedlington83
29-01-2009, 11:56 AM
Many thanks Worzel. Is it legal to be registered at two addresses, I wonder? (Incidentally for others - the name that Worzel has given me by private message is my ex Landlady)

Bel
29-01-2009, 11:59 AM
I've got the allocation questionnaire and I'm reasonably comfortable with completing it but I'm a bit concerned that I haven't yet had the opportunity to go into any detail about my case. Does that happen after the allocation questionnaire has been returned or should I have done it on the original claim form (I didn't - all I put was damages for illegal eviction and the speel about interest)?

No experience here. You could always try phoning the court office for advice about this?


My impression:
She got cold feet in a big way about sharing her space with you. At the outset, she would rather have you out and take the risk of whatever the court might throw at her. Even though you look as if you could win, it may still be the right choice for her.

worzelgummage
29-01-2009, 12:06 PM
nope, you can register twice at different addresses but can only vote once. Students for instance usually register in their home location as well as where they are studying and then choose where to vote at the time (if they're not too busy drinking).

Well good luck - consider any offer she makes seriously. There was a case before christmas where a woman had illegally evicted a rapist who was in prison at the time. He sued and was awarded £750 and costs. Legal fees on her side were £5K or £10K and on his side were £8K or £13K (different figs in different reports of the event). I believe had she offered more than £750 early in the proceedings then costs would have been awarded against him leaving her only £750 out of pocket

bedlington83
02-02-2009, 12:29 PM
Section 3 of the Protection from Eviction Act 1977 explicitly does not apply to an excluded tenancy/licence: see that section, and s.3A, below.

3. Prohibition of eviction without due process of law.

(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and:
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,
As the agreement had not come to end (there were a further four and a half month to go) surely section 3 doesn't apply?

jeffrey
02-02-2009, 12:35 PM
By definition, s.3 does not apply to an excluded tenancy at all (whether the tenancy is or is not still running).

Bel
02-02-2009, 12:51 PM
By definition, s.3 does not apply to an excluded tenancy at all (whether the tenancy is or is not still running).

If you are found to be excluded occupier, it will not be illegal eviction.

But there may be contactual rights that have been breached as you were not allowed to enjoy the fixed term as per agreement, unless she complied with any early termination clauses

worzelgummage
02-02-2009, 13:03 PM
if it is an illegal eviction how does the amount the OP decide how much to claim through the courts? I see he initially asked for 8K but lowered it to keep to the small claims track.

If it is not an illegal eviction but a breach of contract same question?

jeffrey
02-02-2009, 13:05 PM
But there may be contactual rights that have been breached as you were not allowed to enjoy the fixed term as per agreement, unless she complied with any early termination clauses
Yes, I agree.

bedlington83
02-02-2009, 13:37 PM
By definition, s.3 does not apply to an excluded tenancy at all (whether the tenancy is or is not still running).
Sorry jeffrey, in my attempts to be brief and concise I seem to have totally lost the point I was trying to make.

My point was that section three is about what happens at the end of the agreement (i.e. the six months in my case). However, because I hadn't been there anywhere near the six months, section three doesn't apply.

Excluded tenancies and licenses are then defined in section 3A. It starts "Any reference in this Act to an excluded tenancy or an excluded licence...". I agree that the protection of clause three is not available to excluded tenancies but clause three is only about what happens at the end of the agreement. The only other part of the legislation where it would be relevent where the tenancy was excluded or not, at least as far as I can tell, is section five (which covers notice periods).

In other words, an excluded tenancy is not excluded from the whole act, just certain protections within the act.

Disclaimer: I am not a lawyer and have no legal training so everything I've put above might be complete rubbish.

bedlington83
02-02-2009, 13:41 PM
I see he initially asked for 8K but lowered it to keep to the small claims track.
Actually I sent the initial LBA while I was under the impression that the agreement is an AST and about half the amount is dependent on this. As I've subsequently learned this is far from certain, I submitted a subsequent LBA that doesn't rely on it being an AST. It is this second amount that I've claimed.

The amount is calculated as;
Costs following eviction

Hotel bills 30 nights @ £80.00 = £2,400.00
Meals 30 @ £15.00 = £450.00
Internet access 30 days @ £15.00 = £450.00

Total costs after eviction (A) £3,300.00

Costs had I not been evicted

Rent 1 month @ £550.00 = £550.00
Food 1 month @ £45.00 = £45.00

Total costs if not evicted (B) £595.00

Additional costs incurred = A - B = £2,705.00 (C)

Other amounts claimed

General damages £1,500.00 (D)
Incorrect deductions to rent £60.73 (E)

Total Damages = C + D + E = £4,265.73

bedlington83
02-02-2009, 13:52 PM
If you are found to be excluded occupier, it will not be illegal eviction.
You've probably seen my reply to jeffrey already but I'm querying whether an excluded tenancy is excluded from the whole act or (as I current believe) just certain sections of the act

jeffrey
02-02-2009, 14:22 PM
You've probably seen my reply to jeffrey already but I'm querying whether an excluded tenancy is excluded from the whole act or (as I current believe) just certain sections of the act
No, the whole Act except s.3 and s.5 applies to excluded tenancies/licences [defined in s.3A] as it applies to unexcluded ones.

bedlington83
02-02-2009, 14:29 PM
No, the whole Act except s.3 and s.5 applies to excluded tenancies/licences [defined in s.3A] as it applies to unexcluded ones.
I'm proper confused now. I thought you were saying that a lot depended on my being able to prove she was not a resident landlady because of section three?

jeffrey
02-02-2009, 14:44 PM
I'm proper confused now. I thought you were saying that a lot depended on my being able to prove she was not a resident landlady because of section three?
Let's go back a bit.

1. Most of the Protection from Eviction Act 1977 applies to excludeds. Sections 3 and 5 do not.

2. Even when s.3 can apply (i.e. to non-excludeds), it is relevant only if T is:
a. holding-over after a fixed-term tenancy; and
b. is not protected by:
i. the Rent Act 1977; or
ii. part I of the Landlord and Tenant Act 1954.

3. "Excluded" is defined in s.3A(2), with further material (not relevant here) in the rest of s.3A. It chiefly means that:
a. L shares accommodation with T; and
b. both when the Tenancy/Licence was granted and when it ends, L occupies (as only or principal home) premises of which the shared accommodation forms part.

4. If you can prove that L was not resident, the Tenancy is therefore not excluded. If you are holding-over [see 2a above], s.3 and s.5 would apply in your favour.

bedlington83
02-02-2009, 15:20 PM
1. Most of the Protection from Eviction Act 1977 applies to excludeds. Sections 3 and 5 do not.

2. Even when s.3 can apply (i.e. to non-excludeds), it is relevant only if T is:
a. holding-over after a fixed-term tenancy; and
b. is not protected by:
i. the Rent Act 1977; or
ii. part I of the Landlord and Tenant Act 1954.

3. "Excluded" is defined in s.3A(2), with further material (not relevant here) in the rest of s.3A. It chiefly means that:
a. L shares accommodation with T; and
b. both when the Tenancy/Licence was granted and when it ends, L occupies (as only or principal home) premises of which the shared accommodation forms part.

4. If you can prove that L was not resident, the Tenancy is therefore not excluded. If you are holding-over [see 2a above], s.3 and s.5 would apply in your favour.
So really, because I wasn't holding-over, the only benefit I get from proving she was non-resident is the four weeks notice provided for in s.5?

Earlier you said "If you take L to Court and claim that you did have security, you would have to prove that she was not resident". When I first read this I took "security" to mean protection from illegal eviction as provided by the Protection From Eviction Act. We've now got to the point where we agree (I think) that S.3 & S.5 are the only ones that are affected by a tenancy being excluded, the remainder of the act applies to all tenancies (and licenses). It follows from this that, even if I'm a licensee with the landlady resident, I have the security provided in the remainder of the act. Am I missing something or have I misunderstood?

jeffrey
02-02-2009, 15:41 PM
So really, because I wasn't holding-over, the only benefit I get from proving she was non-resident is the four weeks notice provided for in s.5?

Earlier you said "If you take L to Court and claim that you did have security, you would have to prove that she was not resident". When I first read this I took "security" to mean protection from illegal eviction as provided by the Protection From Eviction Act. We've now got to the point where we agree (I think) that S.3 & S.5 are the only ones that are affected by a tenancy being excluded, the remainder of the act applies to all tenancies (and licenses). It follows from this that, even if I'm a licensee with the landlady resident, I have the security provided in the remainder of the act.
Yes. The Housing Act 1988 does not apply if L is resident; the PfEA 1977 does, except its s.3/s.5.

bedlington83
02-02-2009, 16:33 PM
Yes. The Housing Act 1988 does not apply if L is resident
Ahhhh. That's the bit I was missing. It all makes sense now - thanks very much.

jeffrey
02-02-2009, 16:37 PM
Ahhhh. That's the bit I was missing. It all makes sense now - thanks very much.
See para. 10 in Schedule 1 to 1988 Act, below.

10(1) A tenancy in respect of which the following conditions are fulfilled:

(a) that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and

(b) that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which:
(i) in the case mentioned in paragraph (a) above, also forms part of the flat; or
(ii) in any other case, also forms part of the building; and

(c) that, subject to Part III of this Schedule, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which:
(i) in the case mentioned in paragraph (a) above, also formed part of the flat; or
(ii) in any other case, also formed part of the building; and

(d) that the tenancy is not one which is excluded from this sub-paragraph by sub-paragraph (3) below.

(2) If a tenancy was granted by two or more persons jointly, the reference in sub-paragraph (1)(b) above to an individual is a reference to any one of those persons and if the interest of the landlord is for the time being held by two or more persons jointly, the reference in sub-paragraph (1)(c) above to an individual is a reference to any one of those persons.

(3) A tenancy (in this sub-paragraph referred to as “the new tenancy”) is excluded from sub-paragraph (1) above if:

(a) it is granted to a person (alone, or jointly with others) who, immediately before it was granted, was a tenant under an assured tenancy (in this sub-paragraph referred to as “the former tenancy”) of the same dwelling-house or of another dwelling-house which forms part of the building in question; and

(b) the landlord under the new tenancy and under the former tenancy is the same person or, if either of those tenancies is or was granted by two or more persons jointly, the same person is the landlord or one of the landlords under each tenancy.

bedlington83
02-02-2009, 16:52 PM
I've just been ploughing my way through the act here (http://www.opsi.gov.uk/acts/acts1988/ukpga_19880050_en_1) and I can see now why you said a lot depends on being able to prove she's non-resident. It includes the following at 3A, which is remarkably similar to section three of the Protection from Eviction Act.


3A Excluded tenancies and licences

(1) Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section.

(2) A tenancy or licence is excluded if—

(a) under its terms the occupier shares any accommodation with the landlord or licensor; and

(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

Paul Gibbs
02-02-2009, 16:56 PM
As I recall if a T is illegally evicted they can clam statutory compensation which is the difference in the value of the freehold with and without the tenant in the property.

back in the days of rent act tenants this could have been near to 1/3 the value of the freehold.

Nowadays because tenants have less security of tenure the awards under the statutory claim will beless for an assured tenant and even less for an assured shorthold tenant.

I suppose the question is how much less would you pay for a property if you knew there was a tenant in there that would have been entitled to stay there for a further 4 months, and the risk of eviction proceedings.

Given that a T would still have to pay rent you may be looking at awards of around 5-10k (pure guess by me) but that would need to really be confirmed by a surveyor.

Preston
02-02-2009, 23:15 PM
Hi

I have come to this thread rather late, so apologies if these comments are not helpful.

Don't forget that the landlord must show that she lived in the building as her only or principal home at the start of the letting and, with some exceptions, for the duration of the letting. Its quite possible to have more than one home, but only one of them can be the principal one.

The issue of whether or not she is resident is clearly very relevant to your security, but even if she is resident (which seems very doubtful) then you do at least seem to have had a tenancy, for the reasons you gave in one of your earlier posts (exclusive possession, rent, period).

The following notes summarise the law in this regard.

Definition of resident

In law, a resident landlord letting is one where the landlord and the person he or she lets to live in the same building. This includes conversions where they live in different parts of the same property (however long ago it was converted).

For lettings started since 15 January 1989, the important point is whether you are using the property as an only or principal home, both at the start of the letting and throughout it.

Definition of excluded

Where the landlord (or a member of his or her family) shares any accommodation with the person he or she is letting, the letting is excluded. “Shared accommodation” means any part other than stairs, halls, passageways or storage space; so that while a tenant in a self-contained flat would not be considered to be sharing accommodation with the landlord, even someone who has most of their own facilities but shares a toilet would. However, even if the occupier only shares accommodation with a member of the landlord’s family, the arrangement will still be counted as a sharing one if the landlord himself also lives in the house.

Notice for non excluded tenancies and licences

For non-excluded tenancies and licences, notice must be of at least whichever is the longest of:
• four weeks, or
• the term of the let, if any (for example, a month if rent is
paid monthly), or
• whatever has been agreed between the parties
and, for a periodic tenancy, end on the last day of a period(usually the day rent is due). It must be served in writing; if itis served by the landlord, it must include certain specifiedinformation (see appendix A – pre-printed forms are available from law stationers). Notice to quit should be clear and accurate about the property and the tenant or licensee it is addressed to. While some minor errors that could not mislead
the recipient may be overlooked, defects in the content or timing of a notice will make it invalid.

For a non-excluded licence or tenancy, eviction must only be via a possession order from the court.

Notice for excluded tenancies and licences

For excluded tenancies, unless you and the tenant agree otherwise, notice must be at least the length of the period and end on a rent day. However, there is no four-week minimum (so, for example, a weekly tenancy could be ended with a week’s notice), and you and the tenant are free to agree in advance that notice should be shorter or longer. Notice does not need to be written (so there are no requirements for prescribed form), but it is a good idea to give it in writing anyway, in case of future dispute. However it is served, it must still be clear and be timed properly in order to be valid.

For excluded licences, the notice required is simply the longer of whatever has been agreed between the parties (if anything) and what is ‘reasonable’. Reasonableness can ultimately only be decided by the courts, but is a matter of fairness and common sense: for example, taking into account the licensee’s conduct, or how easy it would be for him or her to find alternative accommodation. Notice of the same length as would be required for a similar tenancy would normally be considered reasonable, but if there is likely to be a dispute it would be necessary to take legal advice. Again, there is no need in law for notice to be in writing, but it is recommended to do so.

For an excluded licence or tenancy, there is no legal requirement for you to get a possession order so long as notice has been correctly given. However, a landlord who finds him or herself with a former tenant or licensee who refuses to leave is still strongly advised to apply to the court for eviction. It is a criminal offence for a landlord – or someone working on his or her behalf – to use force to make an occupier leave against the occupier’s will, even where the tenancy or licence has been properly brought to an end (or expired, if a fixed term). It is also an offence to use threats of force.

bedlington83
03-02-2009, 06:20 AM
As I recall if a T is illegally evicted they can clam statutory compensation which is the difference in the value of the freehold with and without the tenant in the property.
You are not the first person to say this but the latest advice is that it no longer applies. In any event I believe it would need the agreement to be an AST and there is quite a bit of doubt as to whether the court would accept that it is.

bedlington83
03-02-2009, 07:09 AM
Don't forget that the landlord must show that she lived in the building as her only or principal home at the start of the letting and, with some exceptions, for the duration of the letting. Its quite possible to have more than one home, but only one of them can be the principal one.

As I'm suing her is it not for me to prove that she didn't live there rather than her having to prove that she did? Or is it not that clear cut?


The issue of whether or not she is resident is clearly very relevant to your security, but even if she is resident (which seems very doubtful) then you do at least seem to have had a tenancy, for the reasons you gave in one of your earlier posts (exclusive possession, rent, period).
The only slight difficulty I have is that I can't prove exclusive possession. Cluase 14 of the agreement suggests that I had it but that's all. (Clause 14 says "To allow the owner, or any duly authorised agent with the owner’s permission, after giving at least 24 hours prior written notice, to enter and inspect all areas of the premises, including the sharer’s room, for the purpose of inspection, repair and the taking of meter readings. (In cases of real emergency the requirement of notice need not be complied with.)")


Definition of resident

In law, a resident landlord letting is one where the landlord and the person he or she lets to live in the same building. This includes conversions where they live in different parts of the same property (however long ago it was converted).

For lettings started since 15 January 1989, the important point is whether you are using the property as an only or principal home, both at the start of the letting and throughout it.

Morally I don't think I can argue that it was my principal home - I live at the opposite end of the country and used the premises during the week rather than staying in a hotel. Legally I have no idea but I suspect that staying there for four nights a week as opposed to three nights in the house I jointly own with my wife is probably insufficient for the letting to be my principal home.

The way I see it is that I should accept defeat in respect of the housing act 1988 (which is where your point above came from, I think) and instead just rely on the Protection From Eviction Act. My reasoning being that the agreement is certainly not excluded from the Protection From Eviction Act whereas it may be excluded from the housing act on the basis of either her residency or it not being my principal home.



For excluded licences, the notice required is simply the longer of whatever has been agreed between the parties (if anything) and what is ‘reasonable’. Reasonableness can ultimately only be decided by the courts, but is a matter of fairness and common sense: for example, taking into account the licensee’s conduct, or how easy it would be for him or her to find alternative accommodation. Notice of the same length as would be required for a similar tenancy would normally be considered reasonable, but if there is likely to be a dispute it would be necessary to take legal advice. Again, there is no need in law for notice to be in writing, but it is recommended to do so.

In my more negative moments, this is where I see the wheels falling off big time. I can see the court agreeing that I was illegally evicted but reducing my damages to next to nothing on the basis that I was initially given reasonable notice (a month) and so my only loss is the remaining two weeks of that notice.

Bel
03-02-2009, 07:56 AM
Morally I don't think I can argue that it was my principal home - I live at the opposite end of the country and used the premises during the week rather than staying in a hotel. Legally I have no idea but I suspect that staying there for four nights a week as opposed to three nights in the house I jointly own with my wife is probably insufficient for the letting to be my principal home.



Is this the first time you have mentioned this in the thread? Or did I miss it?

worzelgummage
03-02-2009, 08:44 AM
Is this the first time you have mentioned this in the thread? Or did I miss it?

I asked something about this after I'd checked out the electoral roll as it occured to me he was using this instead of a hotel. (Post 37)

bedlington83
03-02-2009, 09:01 AM
Is this the first time you have mentioned this in the thread? Or did I miss it?
In my original post I put "In September last year while I was working away from home at the opposite end of the country"

Preston
03-02-2009, 11:15 AM
As I'm suing her is it not for me to prove that she didn't live there rather than her having to prove that she did? Or is it not that clear cut?

If he wishes to use the fact of her residence to establish your status, then she must prove it. However, if you seem my comments below on the issue of principal home, this issue may not be quite so relevant any more.

The only slight difficulty I have is that I can't prove exclusive possession. Cluase 14 of the agreement suggests that I had it but that's all. (Clause 14 says "To allow the owner, or any duly authorised agent with the owner’s permission, after giving at least 24 hours prior written notice, to enter and inspect all areas of the premises, including the sharer’s room, for the purpose of inspection, repair and the taking of meter readings. (In cases of real emergency the requirement of notice need not be complied with.)")

This clause does not undermine exclusive possession, rather it reinforces it. The fact that the landlord must give notice in this form is generally an indication that exclusive possession has been granted - otherwise why would notice have to be given at all. In any case, the issue will be determined on hte facts - in practice do you have control of the space and from what you have said so far, I think it would be held that you do.

Morally I don't think I can argue that it was my principal home - I live at the opposite end of the country and used the premises during the week rather than staying in a hotel. Legally I have no idea but I suspect that staying there for four nights a week as opposed to three nights in the house I jointly own with my wife is probably insufficient for the letting to be my principal home.

This issue would be decided on the evidence, but from what you have said I agree with you. And that having been said, your tenancy cannot therefore be assured or assured shorthold, because for this to be the case you must occupy the premises as your only or principal home. So, the issue of your landlady's residence becomes less significant - although still of some relevance in terms of potential notice periods, depending upon whether living accommodation is shared (see my earlier post).


The way I see it is that I should accept defeat in respect of the housing act 1988 (which is where your point above came from, I think) and instead just rely on the Protection From Eviction Act. My reasoning being that the agreement is certainly not excluded from the Protection From Eviction Act whereas it may be excluded from the housing act on the basis of either her residency or it not being my principal home.

Agreed.

In my more negative moments, this is where I see the wheels falling off big time. I can see the court agreeing that I was illegally evicted but reducing my damages to next to nothing on the basis that I was initially given reasonable notice (a month) and so my only loss is the remaining two weeks of that notice.

Like you, I doubt that you will get the amount you have claimed, but my guess is that you will be awarded a significant amount. Illegal eviction is a serious offence and, over the years, has gradually come to be seen as such by the courts.

Anyway, the real answer is, "who knows?", but in your position I think I would do exactly what you are doing.

Good luck and let us know how you get on.

Preston

Bel
03-02-2009, 11:29 AM
I asked something about this after I'd checked out the electoral roll as it occured to me he was using this instead of a hotel. (Post 37)

Ah yes I see now.

..........

Of course students living 'away from home' have AST's, but whether the OP fits in that category is less certain.

bedlington83
03-02-2009, 12:23 PM
in practice do you have control of the space and from what you have said so far, I think it would be held that you do
Its an interesting point. I argued that I did have control and that she wasn't allowed into them. She disagreed: "The Agreement is for a House & Flat Share, you are renting 2 rooms in a shared house, I being the owner and being here too gives me the right to go into these rooms, with regard to your bedroom I tend to shut the door if it's open, my Advert did say minimal use, I don't use the lounge, however, I will go in if I wish and I do expect it to be clean, i.e. crumbs, that could easily be flushed down the loo, hence I have a cloth under the sink in the bathroom. (as in the table wiped after use)."

Like you say, its probably less important now but I showed her defence to a friend and he picked up on a couple of phrases she used that I missed, which are indicative of it being her office rather than her home:
"During this time I stayed late 7pm ish hoping to catch [bedlington83]" and when she describes bagging my stuff up and putting the bags outside "they were removed by the time I came back to work the next day"

Anyway, thanks for the encouragement and advice. I'll post updates here as and when anything happens. There is just one question I'd be grateful for a reply to: I claimed via money claim online. When I made the claim I just put a very basic overview into the website because space is very limited. At the moment I only have the AQ to complete. When do I complete the Particulars of Claim?

bedlington83
05-02-2009, 14:22 PM
Ok, when I filed the claim online all I put was "Damages for Illegal Eviction". Its been suggested that I include a more detailed "additional particulars of claim" with the Allocation Questionnaire (and send the defendant a copy).

This is what I propose sending. I'd be grateful if anyone with experience of these things could give it the once over and flag up anything glaringly obvious. I'm not asking for a detailed analysis - I'd just like the reassurance that it won't be laughed out of court and I'm not making myself look daft.



1. The defendant is Miss Dodgy-Landlady of 1 Home Ave, Anytown

2. The defendant is the owner of a second property at 57 Residential Close (“the property”).

3. The property was originally built as a three bedroom detached house, the ground floor comprising an open plan combined lounge/dining room and kitchen and the first floor comprising three bedrooms and a bathroom.

4. The defendant has made the following alterations to the property
a) The ground floor lounge/dining room has been converted into an office for her business Company Ltd.
b) On the first floor, bedroom 1 is now a “server room”, housing the server for the office and other related electronic equipment and bedroom 2 is a lounge.

5. On 16/08/2008 the claimant arranged to meet the defendant at the property with a view to renting the lounge & bedroom with exclusive possession and shared use of the bathroom and kitchen.

6. On 19/08/2008 the claimant and defendant agreed to a six month rental at £550 per month.

7. On 01/09/2008 the claimant took residence at property.

8. On 09/09/2008 both the defendant and claimant signed an agreement relating to the rental of the property

9. On 18/09/2008 the defendant sent an e-mail to the claimant purporting to give one month’s notice to leave the property

10. On 04/10/2008 the defendant sent an e-mail to the claimant advising that the defendant had packed the claimants possessions and would place them outside unless they were collected by 5:30 pm on 06/10/2008. The e-mail also detailed a number of deductions that the defendant would be making from over payment of the rent for October.

11. The claimant disputes the defendant’s right to make these deductions.

12. The claimant contends that the eviction was illegal under the Protection from Eviction Act 1977.

13. On 06/10/2008 Ms Too Expensive of Sue Grabbit & Runne solicitors rang the defendant on behalf of the claimant and advised that the actions that the defendant was proposing was wrong in both civil and criminal law. This was followed up by an e-mail confirming the earlier telephone conversation

14. On 06/10/2008 at approximately 22:00 the claimant collected his possessions from the driveway of the property

15. On 10/10/2008 the claimant sent a letter to the defendant at 1 Home Avenue claiming £8,757.80 in damages within 14 days

16. On 11/10/2008 the defendant signed for receipt of the letter at 1 Home Avenue

17. On 15/10/2008 the defendant acknowledged receipt of the letter.

18. 0n 21/11/2008 the claimant sent a letter, mistakenly dated 05/11/2008, to the defendant offering to settle for the reduced amount of £4265.73

I believe that the contents of these particulars of claim are true

islandgirl
05-02-2009, 15:18 PM
point 3 - specify which property - sorry in a rush!

jeffrey
05-02-2009, 15:29 PM
point 3 - specify which property - sorry in a rush!
Point 2 does define "the property".

Ericthelobster
05-02-2009, 16:28 PM
I can't remember all the details from earlier in thread now, but when you collected your stuff from the drive were you physically locked out? And/or was the property empty because (ie as usual) the LL had gone home for the night (worth getting that in!). What happened then - were you forced to sleep in a cardboard box on the pavement? Or go and find a hotel? - whatever, maybe worth reinforcing how put out you were by the eviction.

islandgirl
05-02-2009, 17:22 PM
Jeffrey - yes it does - sorry - note to self - do not post when you are late for a school govs meeting

bedlington83
06-02-2009, 06:59 AM
I can't remember all the details from earlier in thread now, but when you collected your stuff from the drive were you physically locked out?
The house was locked but I had a key. In theory I could've put all my stuff back in but why invite all the grief? - it was painful enough living there with all the harassment and it was obvious she wanted me out.

And/or was the property empty because (ie as usual) the LL had gone home for the night (worth getting that in!).
She'd gone home for the night, but she almost says as much herself in her defence: "I removed his items on Mon 6th Oct, they were in the house until I left that day at 6pm..." and "...they were removed by the time I came back to work the next day".

What happened then - were you forced to sleep in a cardboard box on the pavement? Or go and find a hotel? - whatever, maybe worth reinforcing how put out you were by the eviction.
I went to the hotel that I had already booked in case she had gone through with it. I figured that £65 was a price worth paying for the insurance of having a bed to sleep in. I didn't really want to mention it though in case it invites the court to reduce my general damages (I've asked for £1500).

bedlington83
01-04-2009, 05:57 AM
There's been a bit of progress: A preliminary hearing has been scheduled for April 30th. Its a bit of a pain really as it means traveling the length of the country and spending a night away from home just to go to court for 10 minutes.

Bel
02-04-2009, 10:37 AM
Let us know how it goes.

Good Luck. :)

worzelgummage
06-04-2009, 15:31 PM
There's been a bit of progress: A preliminary hearing has been scheduled for April 30th. Its a bit of a pain really as it means traveling the length of the country and spending a night away from home just to go to court for 10 minutes.

Can you request to attend virtually by phone? Do courts have speaker phones?

bedlington83
07-04-2009, 07:22 AM
Can you request to attend virtually by phone? Do courts have speaker phones?
I've no idea, but I think it's probably better that I attend in person

bedlington83
01-05-2009, 08:27 AM
The preliminary hearing went a lot better than I dared hope and I barely had to say anything. Looking back it’s really quite funny the way my ex-LL stitched herself up. Prior to the hearing I was a bit concerned that she might claim that the permanently locked bedroom was actually her bedroom but in the end she told the court that it was locked and contained stationary. Why she felt the need to tell this lie – it actually contains the server and other electronics – is beyond me, but, given her accurate description of the other two bedrooms, leaves nowhere for her to sleep.

To make sure he understood the true nature of the situation I pointed out to the judge that, although she was saying that I shared her house, she didn’t actually live there and the downstairs was converted to an office. Her response was “I have two houses and I can choose to live in either one of them”
Judge: “Yes but do you live in that one”
Pregnant pause
Ex-LL: “I live there during the day”

Another highlight was when the judge asked why she thought it wasn’t a tenancy agreement
Ex-LL: “ It’s not an AST”
Judge: “There are other kinds of tenancy agreement, why do you think this is not a tenancy”
Ex-LL: “Well if your going to say a lodger is a tenant then it’s a tenancy”

The judge said that the preliminary hearing was to try to reach a compromise without the need to go to a full hearing and advised us of the risks of allowing it to go that far. For my ex-LL the risks were that the agreement could be found to be a tenancy, maybe an AST and, if so, then what she’s done may be illegal. My risk was that I may not get everything that I’m asking for. At the end he asked her if she wanted to continue and she said she did. He then turned to me, smiled and said “and I presume you are still wanting to press for the full amount?” I said yes, but it was the different way that he spoke to us that struck me. He was smiling and friendly towards me but serious and professional towards her.

I hope I’m not putting too much of a spin on things but I honestly got the impression that the hearing was all about her rather than me: A “stop fighting this now, you’ve got little prospect of success – you’d be much better off settling out of court” kind of thing. He even told her to get some legal advice before the full hearing. I’d love to be a fly on the wall for that meeting.

So we’re off to a full hearing, probably some time in June. I know I complained about having to do a 600 mile round trip, and it was a pain doing it, but now I’m really glad I went because I feel a lot more confident about two things; sitting in front of the judge telling my story with my ex-LL sat there and my prospects for success (not that I’m taking anything for granted).

I’ll post another update when I get the judge’s directions

bedlington83
01-05-2009, 08:35 AM
So it seems that she is not actually saying that it is her home, (although don't be lulled into a false sense of security)

All the better for you. On the face of it, it seems encouraging.

What she basically says is that she doesn't know housing law. So she is not taking legal advice?
Apparently not.

I found my first solicitor through a surgery they were having where I was working. In one of life's amusing ironies it transpires that the same firm is both personal and business legal advisor to my Ex-LL. When the judge asked her if she'd taken legal advice she told him she couldn't because I had approached the firm first and accused me of getting their name and contact number from a pen that she'd left at the office :)

Mars Mug
01-05-2009, 10:27 AM
Judge: “Yes but do you live in that one"

Pregnant pause
Ex-LL: “I live there during the day”

I suppose at the time of the hearing she lived in the court, and on the way there she lived in her car?

Was it a bit like a scene from The Apprentice?


I tried several times to stop that quote splitting into two, very odd?

Preston
01-05-2009, 11:43 AM
The preliminary hearing went a lot better than I dared hope and I barely had to say anything. Looking back it’s really quite funny the way my ex-LL stitched herself up. Prior to the hearing I was a bit concerned that she might claim that the permanently locked bedroom was actually her bedroom but in the end she told the court that it was locked and contained stationary. Why she felt the need to tell this lie – it actually contains the server and other electronics – is beyond me, but, given her accurate description of the other two bedrooms, leaves nowhere for her to sleep.

To make sure he understood the true nature of the situation I pointed out to the judge that, although she was saying that I shared her house, she didn’t actually live there and the downstairs was converted to an office. Her response was “I have two houses and I can choose to live in either one of them”
Judge: “Yes but do you live in that one”
Pregnant pause
Ex-LL: “I live there during the day”

Another highlight was when the judge asked why she thought it wasn’t a tenancy agreement
Ex-LL: “ It’s not an AST”
Judge: “There are other kinds of tenancy agreement, why do you think this is not a tenancy”
Ex-LL: “Well if your going to say a lodger is a tenant then it’s a tenancy”

The judge said that the preliminary hearing was to try to reach a compromise without the need to go to a full hearing and advised us of the risks of allowing it to go that far. For my ex-LL the risks were that the agreement could be found to be a tenancy, maybe an AST and, if so, then what she’s done may be illegal. My risk was that I may not get everything that I’m asking for. At the end he asked her if she wanted to continue and she said she did. He then turned to me, smiled and said “and I presume you are still wanting to press for the full amount?” I said yes, but it was the different way that he spoke to us that struck me. He was smiling and friendly towards me but serious and professional towards her.

I hope I’m not putting too much of a spin on things but I honestly got the impression that the hearing was all about her rather than me: A “stop fighting this now, you’ve got little prospect of success – you’d be much better off settling out of court” kind of thing. He even told her to get some legal advice before the full hearing. I’d love to be a fly on the wall for that meeting.

So we’re off to a full hearing, probably some time in June. I know I complained about having to do a 600 mile round trip, and it was a pain doing it, but now I’m really glad I went because I feel a lot more confident about two things; sitting in front of the judge telling my story with my ex-LL sat there and my prospects for success (not that I’m taking anything for granted).

I’ll post another update when I get the judge’s directions

Thank you for this update, it made me smile!

Good luck with the next stage.

Preston

Bel
01-05-2009, 14:02 PM
Good news. If she has any sense left, you should hear from her very soon.

Paul Gibbs
01-05-2009, 15:52 PM
Apparently not.

I found my first solicitor through a surgery they were having where I was working. In one of life's amusing ironies it transpires that the same firm is both personal and business legal advisor to my Ex-LL. When the judge asked her if she'd taken legal advice she told him she couldn't because I had approached the firm first and accused me of getting their name and contact number from a pen that she'd left at the office :)

Strange, if she has previously been a client of theirs then they should not have taken you on as a client (IMO)

bedlington83
01-05-2009, 18:04 PM
I suppose at the time of the hearing she lived in the court, and on the way there she lived in her car?

Was it a bit like a scene from The Apprentice?
LOL. It was a bit like the apprentice, but the judge was a lot less unpleasant than Sir Alan and the "apprentice" in this case was a lot more stupid/mad/ignorant/arrogant/deluded (not sure which) than the apprentices in the program

bedlington83
01-05-2009, 18:05 PM
Thank you for this update, it made me smile!

Good luck with the next stage.

Preston
You're welcome and thanks. It certainly made my wife and I smile lots on the way home

mind the gap
01-05-2009, 18:07 PM
LOL. It was a bit like the apprentice, but the judge was a lot less unpleasant than Sir Alan and the "apprentice" in this case was a lot more stupid/mad/ignorant/arrogant/deluded (not sure which) than the apprentices in the program

Don't be too sure of that last judgement! See this:

http://www.landlordzone.co.uk/forums/showthread.php?t=18469

bedlington83
01-05-2009, 18:13 PM
Good news. If she has any sense left, you should hear from her very soon.
Sense is something that she has in very short supply. I think it will all depend on whether she accepts the judges recommendation to take some legal advice. If she does, and she's honest in what she tells the solicitor, I think she'll be told pretty much what I've been told by the three different legal advisors that I've spoken to; her prospects in court are very very slim, and that may result in some sort of offer. If I do hear anything, I'll post the details here.

bedlington83
01-05-2009, 18:19 PM
Strange, if she has previously been a client of theirs then they should not have taken you on as a client (IMO)
I agree, and what makes it worse is that she has a very very distinctive surname so they should've picked up on it fairly quickly

Ericthelobster
01-05-2009, 20:02 PM
Good news. If she has any sense left, you should hear from her very soon.I do hope not, as I look forward to hearing about the next court hearing!

worzelgummage
05-05-2009, 09:10 AM
I do hope not, as I look forward to hearing about the next court hearing!

How vey selfish of you :D

Me too though!

bedlington83
09-05-2009, 11:25 AM
The directions arrived this morning. There's nothing out of the ordinary in there and the hearing is at 14:00 on 7 July.

I'm a little taken back at the hearing fee of £300, although I must admit that although I knew there would be a fee, I've never really given much thought to how much it would be. Assuming I win, what are the chances of my getting the judge to order that my ex-LL pay it? I seem to remember reading somewhere that costs are only awarded exceptionally when the defendant has behaved unreasonably.

bedlington83
30-06-2009, 17:16 PM
Court next week so I'm thinking through my arguments and I came across the following in the Protection From Eviction Act (at 5 Validity of notices to quit). The emphasis is mine


(1) [F1Subject to subsection (1B) below] no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless—

(a) it is in writing and contains such information as may be prescribed, and

(b) it is given not less than 4 weeks before the date on which it is to take effect.

Given that this clause was inserted by the Housing Act 1988, does this mean that a notice to quit a common law tenancy must be in the format of a section 21 notice? If not, are there any prescribed terms that a notice to quit a common law tenancy must contain?

jeffrey
30-06-2009, 17:21 PM
Court next week so I'm thinking through my arguments and I came across the following in the Protection From Eviction Act (at 5 Validity of notices to quit). The emphasis is mine:


Quote:
(1) [F1Subject to subsection (1B) below] no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless—

(a) it is in writing and contains such information as may be prescribed, and

(b) it is given not less than 4 weeks before the date on which it is to take effect.



Given that this clause was inserted by the Housing Act 1988, does this mean that a notice to quit a common law tenancy must be in the format of a section 21 notice? If not, are there any prescribed terms that a notice to quit a common law tenancy must contain?
The wording maintains the concept of a common-law NtQ.
The 'prescribed' refers to SI 1988 no. 2201: see http://www.opsi.gov.uk/si/si1988/Uksi_19882201_en_1.htm

bedlington83
30-06-2009, 18:18 PM
Thanks very much for that Jeffrey and its a top link. It means that the notice to quit that she gave me was invalid so she's evicted me without any notice at all. Hopefully that will count in my favour when it comes to damages.

jeffrey
30-06-2009, 18:34 PM
Thanks very much for that Jeffrey and its a top link. It means that the notice to quit that she gave me was invalid so she's evicted me without any notice at all. Hopefully that will count in my favour when it comes to damages.
Well, it should have been reasonably obvious to L that a letting entirely outside the 1988 Act would not be susceptible to a Notice under s.21 of that very Act. On the other hand, a common-law NtQ is valid (but only if containing the prescribed information, of course).

Bel
30-06-2009, 22:30 PM
Thanks very much for that Jeffrey and its a top link. It means that the notice to quit that she gave me was invalid so she's evicted me without any notice at all. Hopefully that will count in my favour when it comes to damages.

I hope you realise that we expect a blow-by-blow account of your day in court..............crossed fingers :)

Paul Gibbs
01-07-2009, 07:06 AM
The directions arrived this morning. There's nothing out of the ordinary in there and the hearing is at 14:00 on 7 July.

I'm a little taken back at the hearing fee of £300, although I must admit that although I knew there would be a fee, I've never really given much thought to how much it would be. Assuming I win, what are the chances of my getting the judge to order that my ex-LL pay it? I seem to remember reading somewhere that costs are only awarded exceptionally when the defendant has behaved unreasonably.

If you win you will get an order that LL pays you all the court fees.

bedlington83
01-07-2009, 07:35 AM
Well, it should have been reasonably obvious to L that a letting entirely outside the 1988 Act would not be susceptible to a Notice under s.21 of that very Act. On the other hand, a common-law NtQ is valid (but only if containing the prescribed information, of course).
Lots of things should have been reasonably obvious to the L and, had they been, we wouldn't be going to court. Unfortunately she seems to ignore the obvious in favour of her almost feudal view of the situation ("its my house I can do what I like"). I intend to make this point to the judge. The L doesn't even accept that its a tenancy agreement.

The "notice to quit" was an email that only said "I am giving you 1 months notice from today 18th Sept to vacate <street name>, if you wish to leave earlier then let me know." (Note that I was evicted from the whole street not just the one property)

bedlington83
01-07-2009, 07:36 AM
I hope you realise that we expect a blow-by-blow account of your day in court..............crossed fingers :)
Given the amount of help that I've had on here its the least I can do. Hopefully she'll provide us with some entertainment

bedlington83
01-07-2009, 07:42 AM
If you win you will get an order that LL pays you all the court fees.
Thanks Paul but thanks to further research elsewhere I've discovered that, should I win, I can claim all the court fees and travel and accommodation expenses for attending court. These will be 2 X 560 mile round trips at 40p per mile and 1 X hotel @ £65 (for the main hearing we'll travel there and back in a day). That adds up to more than £500 and I'll also be asking the court for 20 hours at the LIP rate of £9.25 due to the L's unreasonable behaviour in not taking any legal advice and refusing to settle both before she evicted me and before it came to court

jeffrey
01-07-2009, 09:40 AM
If you win you will get an order that LL pays you all the court fees.
Read that as, "Ask the Court to order that, if you win, L must pay all Court fees" (and the other items which you mention).

Reason: Court always has discretion to award costs (civil cases), which depends on parties' conduct. I hope that you do win and obtain costs!

bedlington83
01-07-2009, 12:32 PM
Read that as, "Ask the Court to order that, if you win, L must pay all Court fees" (and the other items which you mention).
That's how I read it. Do I ask the court now or at the end of the hearing, I presume its at the end of the hearing?

jeffrey
01-07-2009, 13:14 PM
That's how I read it. Do I ask the court now or at the end of the hearing, I presume its at the end of the hearing?
I'd include it in your initial claim, to be on the safe side!

bedlington83
01-07-2009, 14:15 PM
I'd include it in your initial claim, to be on the safe side!
Its a bit late for that. The claim was made last year and the hearing is next week

jeffrey
01-07-2009, 14:41 PM
Its a bit late for that. The claim was made last year and the hearing is next week
Yes. I meant that I would include it in an initial claim. Court may allow you to add it it if you win the case itself- but that might be too late. Perhaps look at the CPR stuff, in case there are pertinent Rules re claiming such fees etc.

nstark15@hotmail.com
01-07-2009, 22:28 PM
To help answer a few points, was there an inventory done when you moved in, if so was it done by an independant firm. If no, then no case for damages.

Whether or not there is a contract in place, the courts will see this as a verbal agreement and will still grant you rights.

to have your stuff thrown out on the street like that and her removing your possesions for you is a no no.

keeping the bathroom untidy is not what the courts would consider a nuisance.

If on an AST you were to remove someones stuff, you would have to send a letter to this affect. wait 14 days and then you could remove them but you would have to keep them and send another letter etc etc.

this person is acting maybe not outside but I would go to CAB or a solicitor for free consultation and see what they think.

personaly I dont think it matters if contract is on paper or verbal, in fact a verbal contract is worst for the landlord. how can you break any rules when there are none on paper. The courts would likely side with the tenants on verbal contracts.

Hope this helps, I am not sure if all I am saying is true but these are my initial thoughts as a experienced landlord

bedlington83
02-07-2009, 09:26 AM
To help answer a few points, was there an inventory done when you moved in, if so was it done by an independant firm. If no, then no case for damages.
There was no inventory but I'm not sure what relevance it would have. The damages I am claiming are for illegal eviction.


Whether or not there is a contract in place, the courts will see this as a verbal agreement and will still grant you rights.
Agreed but there was a written agreement - its posted in its entirety in post 1 of this thread


to have your stuff thrown out on the street like that and her removing your possesions for you is a no no.
Agreed and to do it with invalid (for which read "no") notice is even worse.


keeping the bathroom untidy is not what the courts would consider a nuisance.
I know but I dispute it anyway. She was completely neurotic, border-line obsessive-compulsive about cleaning (IMHO). Of course it could be quite normal to lie on the floor looking for crumbs under the fridge


If on an AST you were to remove someones stuff, you would have to send a letter to this affect. wait 14 days and then you could remove them but you would have to keep them and send another letter etc etc.
There is doubt over whether it is an AST. The consensus reached earlier in the thread was that it isn't and may case does not depend on it. But even if it was an AST, I don't think you're right about taking someone's stuff after 14 days notice.


this person is acting maybe not outside but I would go to CAB or a solicitor for free consultation and see what they think.
I am absolutely convinced that this person is acting outside the law, specifically the Protection From Eviction Act 1977 and the Notices to Quit etc. (Prescribed Information) Regulations 1988 (thanks once again Jeffrey). In reaching this opinion I have had advice from two solicitors specialising in housing law and a civil law barrister as well as the people on this site. I'm not too sure how much extra help citizens advice could give me :)

nstark15@hotmail.com
02-07-2009, 09:53 AM
There is doubt over whether it is an AST. The consensus reached earlier in the thread was that it isn't and may case does not depend on it. But even if it was an AST, I don't think you're right about taking someone's stuff after 14 days notice.

What I meant by this is in a case of an abandonment of the property (which does not apply to your case) you can gain control of their possessions if it is done right and they do not collect. the only thing that I am pointing out on this, is that she says she will keep your stuff safe and left some of it outside. It is just another case of breaking the rules and proper notices would have to given on this basis and they would not be allowed to do this unless the correct legal wording has been done.

re the AST I read the thread and was aware it was an AST, but is there a rolling clause in the agreement. I dont think it matters either way as 2 months notice will still have to be given. but what I am saying is the LL beleives she is right as the contract had ended. if Rlling, the contract had not ended.

I have little doubt in my mind that you were wrongly evicted and compensation should be claimed.

bedlington83
02-07-2009, 10:28 AM
re the AST I read the thread and was aware it was an AST, but is there a rolling clause in the agreement. I dont think it matters either way as 2 months notice will still have to be given. but what I am saying is the LL beleives she is right as the contract had ended. if Rlling, the contract had not ended.
The difference, in notice terms, between an AST and a common law tenancy is that, as you say, an AST requires the landlord to give two months notice whereas with a common law tenancy its 4 weeks as prescribed in the PFEA. Additionally, with an AST the notice cannot expire in the first six months of the agreement and (I think) it must end on a rent day.

In my particular case I don't think it really matters whether it was an AST or not. If it was an AST she didn't give two months notice, it didn't contain the prescribed terms and it expired in the fixed period, if it wasn't an AST the notice didn't contain the prescribed terms (although it was valid in all other respects). Either way she hasn't given me valid notice to quit and could not lawfully do what she did. If that wasn't bad enough, she can only evict with a court order, which of course she didn't have.

The more I think about this the more outrageous her behaviour appears to me

Paul Gibbs
02-07-2009, 13:55 PM
THe court dows have a large discretion on costs, however, I would expect the court to order D to pay C's costs (if successful) unless the court believes that C has acted unreasonably. (CPR 27.14 (2)(c))

There is no need to claim for costs in the Particulars of Claim - therefore no application to amend is necessary. (CPR 27.14 (2))

Within small claims court you can claim for travel and also overnight stay (CPR 27.14(2)(e)) (capped at £50 per day - CPR PD 27 PARA 7 7.3(1).)

If the court considers that D has behaved unreasonably then it can order such further costs as it thinks fit (CPR 27.14(2)(g)). Failure to instruct a solicitor is unlikely to be considered unreasonable, the best argument you have is if she has unreasonably refused to negotiate.

I thought the LIP rate was 2/3rds that of a solicitor but I may be wrong on that.

Good luck.

bedlington83
03-07-2009, 10:54 AM
Thanks very much for the references Paul. I already knew the part 27 stuff but I was unaware of the £50 limit on accommodation. As I understand it 48.6(2) prevents a LIPs costs from exceeding 2/3 of a solicitor. In other words its a limit rather than an amount. The rate of £9.25 is in a practice direction here (http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_parts43-48.htm#IDAHRKTB). 52.2 quotes the rate.

How I think it works is that if a solicitor would've taken an hour to do something and charges £150, that means I can claim up to £100 at £9.25 an hour to do the same thing. Obviously I'd have to justify the time and I couldn't really claim 5 hours for typing a letter that a solicitor would've done in half an hour, even though the funds are theoretically available.

bedlington83
03-07-2009, 12:50 PM
I forgot to say; my reasons for believing her behaviour is unreasonable are not just refusing to seek legal advice. They are these:
1) Refusing a meeting between our legal representatives to resolve the matter before court
2) Refusing to even respond to an offer for amicable settlement from my solicitor
3) Ignoring legal advice that her proposed actions were illegal from the firm of solicitors that she trusts and uses both personally and for her company (albeit when they were representing me)
4) Threatening me with costs in response to my first letter before action
5) Threatening me with the police for "extortion and blackmail" in response to my second reduced letter before action.
6) Ignoring the recommendation of the district judge at the preliminary hearing that she seek legal advice

Preston
03-07-2009, 18:13 PM
I forgot to say; my reasons for believing her behaviour is unreasonable are not just refusing to seek legal advice. They are these:
1) Refusing a meeting between our legal representatives to resolve the matter before court
2) Refusing to even respond to an offer for amicable settlement from my solicitor
3) Ignoring legal advice that her proposed actions were illegal from the firm of solicitors that she trusts and uses both personally and for her company (albeit when they were representing me)
4) Threatening me with costs in response to my first letter before action
5) Threatening me with the police for "extortion and blackmail" in response to my second reduced letter before action.
6) Ignoring the recommendation of the district judge at the preliminary hearing that she seek legal advice


I like this thread, partly because I think you have a good case and you deserve to win; partly because I am learning a few new things; and partly because of the amusement factor.

Good luck!

mind the gap
03-07-2009, 18:38 PM
I like this thread, partly because I think you have a good case and you deserve to win; partly because I am learning a few new things; and partly because of the amusement factor.

Good luck!

'Coronation Street' just about has the edge on it, I'd say ;)

Mars Mug
03-07-2009, 18:54 PM
Maria just had a sprog on the beech, Tony helped out ;)

jta
03-07-2009, 19:13 PM
Maria just had a sprog on the beech, Tony helped out

Did you notice there was no umbilical cord.:p

jeffrey
05-07-2009, 18:20 PM
Who are all these people? Is it like 'The Archers'?

islandgirl
05-07-2009, 19:59 PM
yes but less cows more dogs

Krispy
05-07-2009, 20:28 PM
Maria just had a sprog on the beech

Is that a cocktail?

jeffrey
06-07-2009, 10:23 AM
Is that a cocktail?
A Beech is a tree. Who has a baby aloft?
It wasn't on the beach (unlike Neville Shute) nor in the breech, was it? Perhaps it was a breeches buoy (or girl)?

bedlington83
07-07-2009, 15:14 PM
Sorry for being boring by bringing this thread back to the original topic but I won. I was awarded £1750 + £600 costs

I’m on the road at the moment (my wife is driving) so I’ll give you all the gory details tomorrow, not that there are many.

PS can a moderator change the thread title back to Illegally Evicted :-)

susanne
07-07-2009, 15:18 PM
Great new !!! well done - i bet you are relieved !

Preston
07-07-2009, 16:25 PM
Yes, I agree, very well done. Will look forward to the details.

Soot2006
07-07-2009, 19:23 PM
Congrats!
This is the thread that made me join this forum ;).

theartfullodger
07-07-2009, 19:36 PM
Bedlington:

Congratulations, well done, justice prevails for once.

If the little s*** doesn't pay up & you need advice on how to collect your ££££ keep posting... there's ways and means... Patience and thorough dilegence may be needed, but I think you've got those...

Cheers!


Lodger

worzelgummage
08-07-2009, 08:58 AM
Congrats, I look forward to the full details.

Also how does the award stack up against the costs you've incured (both hotel after you were evicted and also bringing the case.)

Bel
08-07-2009, 10:41 AM
Hip hip hooray :)

bedlington83
09-07-2009, 09:21 AM
Apologies for the delay but I had several celebratory beers and it’s taken this long to sober up enough to tell you about the hearing. On the day we had to wait over an hour because of an over-running family hearing and eventually my claim was given to a different judge than intended because the one that was listed to hear it was hearing the family matter. When we finally got in I was hot and sweaty and it was a relief to sit in a room that at least had a fan.

I was expecting it to start with the judge asking me to outline my case but he didn’t and it followed pretty much the same pattern as the preliminary hearing with more emphasis being placed on ex-LL. He started out by saying that he had only just picked up the papers but it appeared that it was me claiming that I was illegally evicted. He then said that there was a defence that said see attached and what was attached was “the size of the Gettysburg address. I’m not going to pick the bones out of that. It’s useless. What is the defence?”

So then she started her rambling account of what happened. Prior to the hearing I had planned to keep a count of the number of times that she used the words “filthy”, “disgusting” and “pubic hairs” but in the end I forgot so I’m unable to report accurate statistics. I can, however, confirm that it was far fewer than I expected because, just as she was winding herself up and telling the judge that she’d sent him some pictures, he interrupted. “Ah yes. I’ve seen some pictures of some tea stains on a kitchen work top”. As he said this he looked at my wife and rolled his eyes.

There were a couple of times when the judge asked my ex-LL for a document; one was the agreement the other was the notice to quit. Both times she fumbled through her un-indexed pile of papers while I was able to say “Its in my bundle, document 26 sir”. I must admit to feeling very smug about being able to do that and it obviously went down well with the judge.

Every time she started to rant the judge brought it back to the same question. Did she think that she might owe me something and she denied that she did. He kept pressing the point and told her that she hadn’t even honoured the notice that she had purported to give. At this point she conceded that she might owe me a weeks rent.

Towards the end he gave us both an opportunity to make any final points and I told him that I thought it was a tenancy agreement based on the rent, fixed period and exclusive possession. She denied that it was. I also said that the notice was invalid because it didn’t contain the prescribed terms. She said it was valid

So then we came to the judgement. He said that “following Street v Mountford, all occupiers of leased residential property are tenants excepts on rare occasions. This isn’t one of them. The agreement is a tenancy and all tenants are entitled to compliant notice. E-mail isn’t.” He also repeated something that he’d said earlier, “You don’t bag up the kit and say pick it up on Friday”. From the start of him announcing his decision my ex-LL’s head dropped and she said very little from that point. He had a right go at her for the illegal eviction telling her that she was lucky that the local authority had decided not to prosecute. At one point, while he was explaining that the local council take criminal landlords to court he looked at her and said, Mystic Meg style, “That would be you”.

He also had a go at me for not mitigating my losses. I had an argument for that – had I entered another six month lease on another property, my losses would’ve been higher because I only stayed a further month and a half – but I forgot to use it. I don’t know why but perhaps it was the stress of the situation, being lulled into a false sense of security by him having a go at my ex-LL or the aggressive way he addressed me but I don’t think it made a massive difference. He wouldn’t have given me what I was asking for in any case.

As you know, he awarded me £1750 in total for damages to which ex-LL said, “I feel it’s unreasonable”

“It’s what I award. How much can you pay now?”

Silence.

“How much?”

Silence

“Come on, you must have savings, how much?”

“I don’t know. £400?”

“And how much every month?”

“£150 to £200”

“Right that’s £400 immediately, £200 on 31st July and £200 a month after that”

“I said 150 to 200”

“And I said 200”

So then we got to costs and I asked for my court fees of £435. He said that I hadn’t got everything I was claiming so he would only award me £200. He asked ex-LL if she agreed and she ignored him so he said “I’ll take that as a yes”. I asked for two 560 mile round trips at Inland Revenue rates of 40p per mile. “How much is that in total?”

“£448”

“No you can get here cheaper than that by train. £200. Anything else?”

“Hotel bill for the preliminary hearing”

“What about it?”

“Photocopying costs?”

“No”

“”Postage”

“No”

“Parking charges?”

“No. Anything else?”

“Yes sir, special costs”

“What special costs?”

“My time at litigant in person rate because of the defendants unreasonable behaviour”

“I think you’re pushing it now”

“I think I’ll shut up”

“I think that’s a good idea”.

And that was that.

The more observant among you may have noticed that there were only £400 costs. I have no idea why I thought it was £600, and no doubt I’ve mis-remembered other stuff. I might ask for a transcript of the hearing, depending on the cost.

Initially I was quite disappointed with the decision, both in the amount and the fact that she pays a relatively small amount a month. I had been hoping to be banking a nice big cheque about now but on reflection I think I’m quite pleased. When I started the action it wasn’t really about the money. It was because I was outraged at her arrogance and I wanted her to be left in no doubt that she was wrong. I got that in bucket loads and every time she signs the cheque for £200 she’ll be reminded of her crushing and humiliating defeat. Of course she may not pay me but that would be even better now that I know about charging orders.

And I haven’t finished with her yet. When I get the judgement I’ll send a copy to the council and ask them to prosecute. I’ll also complain to the planning department for the change of use of the house from residential to mixed use (sui generis I think is the term). Then there’s the matter of being registered to vote at two different addresses. I might write to the returning officer at the council and express my concern that she may have voted twice at the elections last May. After that there’s the mortgage lender: They will want to know that she’s using the property as a business premise and renting out part of it.

Overall I’ve found the experience exhausting and empowering. Its been a lot of hassle, taken a lot of time and preyed on my mind far more than it should have but I think justice has been done. Had I not been so incensed at what she did (and, admittedly blinkered by pound signs) I might have given up a while ago but I’m glad that I didn’t. I certainly don’t fear court now and believe that, provided you’re honest and have a good case and sensible legal points to make, there is not a lot to worry about. Hopefully though I won’t need to go again

mind the gap
09-07-2009, 09:38 AM
Hey, well done, you. Thank you so much for reporting back in such detail and so interestingly and clearly.

worzelgummage
09-07-2009, 11:14 AM
Thanks for the update. There is no issue being registered to vote at 2 addresses, so there is really no need to report her for that one.

However reporting her for the other things is fine.

Also do you know how much bringing this action has cost you in total and how much you were out of pocket by being evicted?

bedlington83
09-07-2009, 11:46 AM
Thanks for the update. There is no issue being registered to vote at 2 addresses, so there is really no need to report her for that one.
Yes, but there is an issue if she actually voted twice, as she may have done. She's a very political person (she once stood for election) and she's arrogant enough to assume that she's get away with it. I'll just be letting the returning officer know about my discovery and expressing a concern that she may have voted twice. I won't be actually accusing her of it. I suspect that I will just be ignored but its worth a try.


Also do you know how much bringing this action has cost you in total and how much you were out of pocket by being evicted?
Its a very good question but its very difficult to calculate accurately. In any event I'd rather not work it out in case my losses are more than £1750.

susanne
09-07-2009, 12:26 PM
what a great report - i am glad you feel vindicated - sometimes, its not about the money - but about the feeling of being heard and listened to and acknowledged as truly being the person who has been wronged.


let us know the future events - i bet she reneges on her payments......

theartfullodger
09-07-2009, 20:11 PM
Well done (again). You done great!!!

Cheers!

Lodger

Preston
09-07-2009, 20:50 PM
Great story, great outcome and very well told. I reckon your best bet to profit from this is to sell the film rights.

bedlington83
30-07-2009, 11:43 AM
Ok, so she didn't pay the £400 ordered forthwith and, in full expectation that she wasn't going to pay the first monthly instalment either, I've been researching various enforcement methods. I'd decided to go for a charging order followed by an order for sale, which, in addition to getting me my money, would have been entirely fitting in a rough-justice kind of way. Unfortunately, she's gone and spoilt my fun: Today, one week before the deadline at which the CCJ would have been remained registered for the full six years, I signed for an envelope containing a cheque for the full amount of £2150.

My guess is that she has, belatedly, taken some legal advice. Who cares - we're out for a curry tonight to celebrate :D

In closing I must say a big thank you to everyone on here for your help and support - I've really appreciated it

Mrs Jones
30-07-2009, 11:47 AM
Going on past history, I would wait for the cheque to clear....;)

Mars Mug
30-07-2009, 11:57 AM
In closing I must say a big thank you to everyone on here for your help and support - I've really appreciated it

Thanks, mine's a pint of Abbots Ale :D

susanne
30-07-2009, 12:47 PM
well done !!!!! i think a celebration is definitely on the cards ...