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awt19
08-03-2009, 19:23 PM
Hi there,

I read on these forums that tenants chasing the 3x penalty for the LL not protecting a deposit shouldnt celebrate after winning the court proceedings, but only when they have the money in their bank.

I am in the process of taking my LL to court, and feel I have a bulletproof case. The only thing is, I want to use a solicitor to make sure, and as I can claim these costs in any winnings, I wouldnt be losing out if I can ensure the LL pays up.

However I dont want to pay for a solicitor if I wont end up getting the money from the LL afterwards. He's dodgy and has a company set up that we paid money for rent to.

Some questions

1) If the tenancy agreement is with the Company, presumably this means I cant include the LL in the claim?

2) How easy is it going to be for this LL to get out of paying, should the court award in my favor?

3) Would I be wasting my time using a solicitor if the chances are the the LL will get out of paying because of his company being set up?

All help greatly appreciated!

Bel
08-03-2009, 19:42 PM
Who owns the property; the company? Or do they lease it from someone else?

awt19
08-03-2009, 19:48 PM
I'm not sure.

The tenancy agreement is with <His Surname> Investments so I'm not sure if he owns the property or if its under the company. I suspect he owns it.

But given the Tenancy Agreement is with the company... that means we can only claim against the company right?

Thanks for your help

Bel
08-03-2009, 19:53 PM
Yes, but if the company owns the property then they have money

Whether the directors have a duty of care regarding the deposit and you could personally sue them, I have no idea.

To find out the owner, check the land registry. For cost of £3.

You could also get the company's filed records from companies house, which will also cost, to see if they are worth persuing.

If you have limited means, you may be entitled to legal aid to cover your costs of legal representation.

awt19
08-03-2009, 20:02 PM
Thanks Bel,

Any idea on how many LL's get out of paying the penalty? Or if generally the Tenant will receive the money? Just dont want to be spending large amounts on solicitors and then large amounts on solicitors again to get the money back once awarded.

Just dont want him using some form of loop hole that I dont know about to get out of it.

Unfortunately not entitled to any legal aid, although I have been to see the CAB who were rather helpful.

jeffrey
08-03-2009, 22:58 PM
I'm not sure.

The tenancy agreement is with <His Surname> Investments so I'm not sure if he owns the property or if its under the company. I suspect he owns it.

But given the Tenancy Agreement is with the company... that means we can only claim against the company right?

Thanks for your help

But is it:
a. "His Surname Investments"; or
b. "His Surname Investments Ltd"?

Bel
09-03-2009, 09:35 AM
Thanks Bel,

Any idea on how many LL's get out of paying the penalty? Or if generally the Tenant will receive the money? Just dont want to be spending large amounts on solicitors and then large amounts on solicitors again to get the money back once awarded.

Just dont want him using some form of loop hole that I dont know about to get out of it.

Unfortunately not entitled to any legal aid, although I have been to see the CAB who were rather helpful.

If the deposit is protected prior to court or returned to you, you may fail.

http://www.landlordzone.co.uk/forums/showthread.php?t=16679

There are lots of threads if you do a search

house275
09-03-2009, 10:19 AM
Hi

If you want to pm me I can tell you of a guy who was really helpful to us & may be able to help you
We recently had this with my daughters LL

This guy is a solicitor & specialises in this matter he also has contacts for debt recovery if your LL decided to get difficult like daughters did

You can do the whole process yourself but it costs nothing to get someones advice ?
He will advise for free via email

Paul Gibbs
09-03-2009, 12:46 PM
The only thing is, I want to use a solicitor to make sure, and as I can claim these costs in any winnings, I wouldnt be losing out if I can ensure the LL pays up. - you can recover solicitors costs but only if you claim (and get) judgment in excess of £5k (or if there is a contractual provision to allow you to claim costs - unlikely) - get estimates from the solicitors you think about using - it should help you decide whether or not to use any solicitors)

However I dont want to pay for a solicitor if I wont end up getting the money from the LL afterwards. He's dodgy and has a company set up that we paid money for rent to.

Some questions

1) If the tenancy agreement is with the Company, presumably this means I cant include the LL in the claim? correct - but you need to answer Jeffrey's earlier post regarding this first.

2) How easy is it going to be for this LL to get out of paying, should the court award in my favor? if you get judgment then you have to enforce, the court does not do it for you. You need to decide whether the claim is against company or individual, then you need to investigate what assets the debtor has and their ability to pay.

3) Would I be wasting my time using a solicitor if the chances are the the LL will get out of paying because of his company being set up? thats a decision for you to make. if claim is +£5k then the legal costs should get added onto your judgment, however this may not be 100% of what the solicitor bills you there is often an element of costs that are not recovered in litigation, you would still be responsible for these costs. If the claim is less than £5k then you can still recover limited legal fees - your solicitor should advise you on this, however you need to decide on an economical basis whether it is worth using solicitors in this situation.

All help greatly appreciated!

NB - if you are financially eligible for Legal Aid then if the claim is less than £5k there is the risk you will not get funding due to the fact the costs would not be recovered from the defendant.

awt19
09-03-2009, 16:13 PM
But is it:
a. "His Surname Investments"; or
b. "His Surname Investments Ltd"?

Lock in a.

And the implication of this? I guess without the Ltd, his liability isnt limited to just what assets etc the company has, and his personal assets can be chased?

awt19
09-03-2009, 16:27 PM
1) If the tenancy agreement is with the Company, presumably this means I cant include the LL in the claim? correct - but you need to answer Jeffrey's earlier post regarding this first.

Thanks for this Paul. Its very very helpful. I answered A for Jeffrey's post.

How does this affect things?

awt19
09-03-2009, 16:31 PM
If the deposit is protected prior to court or returned to you, you may fail.

http://www.landlordzone.co.uk/forums/showthread.php?t=16679

There are lots of threads if you do a search

Thanks Bel.

I'm quite confident he wont protect the deposit before court... he's paid back the majority of it, theres just 1 thing he has taken off the inventory and wont provide us with receipts for. So he cant protect the deposit, because he's already returned most of it. And I dont think he's all that clever to figure that out.

Paul Gibbs
10-03-2009, 09:13 AM
the failure the use the word limited after the company's name in the tenancy agreement could make the director personally liable under the Companies Act 1985 (IIRC) and he could also be liable for a fine (although this is a matter for Companies House and they are unlikely to get involved)

It would probably be wise to sue the company and the director - let the court sort out who is responsible. IMO you will have to convince the court that the director is personally liable. This is a technical argument and it might be worth using a solicitor, even if it is just for preparing the Particulars of Claim.

jeffrey
10-03-2009, 23:52 PM
the failure the use the word limited after the company's name in the tenancy agreement could make the director personally liable under the Companies Act 1985 (IIRC) and he could also be liable for a fine (although this is a matter for Companies House and they are unlikely to get involved)

It would probably be wise to sue the company and the director - let the court sort out who is responsible. IMO you will have to convince the court that the director is personally liable. This is a technical argument and it might be worth using a solicitor, even if it is just for preparing the Particulars of Claim.
Or it might not be a company at all- merely L's trading name.

awt19
11-03-2009, 13:16 PM
Or it might not be a company at all- merely L's trading name.

Thanks,

So should I just include both the LL's name, and the 'company' on the claim form?

jeffrey
11-03-2009, 13:21 PM
So should I just include both the LL's name, and the 'company' on the claim form?
No. They cannot both be party to the letting. You need to decide, with your professional advisers, which of them is.
However, you could sue the company [if it is the party concerned] and its director personally [if he has intermeddled].

awt19
12-03-2009, 20:06 PM
So should I just add the LA, the LL and the Company to the N208 claims form as the defendents then?

Many thanks again.

also... does it matter that the LBA was sent only to the 'company'?

Paul Gibbs
13-03-2009, 09:20 AM
do a search at companies house (its free) to see if the company is actually a company or not.

If it appears as a company i think it sounds more likely that the company failed to use the words LTD as opposed to being a trading name - but Jeffrey is right you need to look into this further.

If it is a company then sue the company and the director, however if it is just a trading name then you just go directly against the director, but you would state that the defendant is Mr Bloggs trading as X.

If he is a solicitor then as long as he is not a partner you can enforce via an attachment of earnings order.

IMO the best way to enforce once you have judgment is to serve a statutory demand. If a solicitor is made bankrupt they can be struck off the solicitors roll. That IMO would get payment by return!

awt19
13-03-2009, 13:21 PM
do a search at companies house (its free) to see if the company is actually a company or not.

If it appears as a company i think it sounds more likely that the company failed to use the words LTD as opposed to being a trading name - but Jeffrey is right you need to look into this further.

If it is a company then sue the company and the director, however if it is just a trading name then you just go directly against the director, but you would state that the defendant is Mr Bloggs trading as X.



Thanks Paul,

There is a company listed under that name on the Companys House website ie:

LLNAME INVESTMENTS LTD.

Under the tenancy agreement, there is no 'LIMITED' stated. How do I know that the company on the website is the same one that on the Tenancy Agreement? (Given that his surname is a reasonable popular one!)

Paul Gibbs
13-03-2009, 14:40 PM
find the registered address of that company (click on their name) and see if it tally's with the address LL has put on TA. It might not as it might just be an accountants address. You can get a list of current appointments for £1 showing the directors and for a further pound a list of the shareholders.

jeffrey
13-03-2009, 14:52 PM
Thanks Paul,

There is a company listed under that name on the Companys House website ie:

LLNAME INVESTMENTS LTD.

Under the tenancy agreement, there is no 'LIMITED' stated. How do I know that the company on the website is the same one that on the Tenancy Agreement? (Given that his surname is a reasonable popular one!)
Another point: it IS possible, although unusual, for a company to be unlimited. As an example, Mortgage Express is unlimited!

awt19
13-03-2009, 15:05 PM
find the registered address of that company (click on their name) and see if it tally's with the address LL has put on TA. It might not as it might just be an accountants address. You can get a list of current appointments for £1 showing the directors and for a further pound a list of the shareholders.

I downloaded the document and the LL is neither a director or shareholder of the company, so I guess its not him. Does this mean I should name in claim form

"LL trading as LL Investment"?

thanks for your help!