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alteano1965
17-02-2010, 10:02 AM
Hi
My tenant has defended my claim for rent arrears for £2000 and has sent a Defence and a counterclaim for disrepairs, a copy of which was sent to me with the questionaire. Do I need to file a separate defence for the counterclaim, or should I just send the questionaire and wait until the small claims hearing takes place?

Thanks for your advice

regards

Alteano

westminster
17-02-2010, 12:28 PM
Do I need to file a separate defence for the counterclaim, or should I just send the questionaire and wait until the small claims hearing takes place?

The counterclaim and the questionnaire are two entirely separate matters.

You must file a defence to the counterclaim within 14 days (if you don't the tenant can apply for a default judgment against you - i.e. you'll lose).

If the counterclaim was drafted by a solicitor, it will probably have numbered paragraphs? If so, address and deny each allegation, explaining each time why you don't accept liability, that the tenant didn't report the disrepair to you, etc*. Don't just make a general statement saying "I deny all the allegations".

The allocation questionnaire is to provide information to the court about deciding which track the claim should be allocated to, nothing to do with your defence.

*BTW what is the tenant actually alleging?

alteano1965
17-02-2010, 16:19 PM
Thank you Westminster

The allocation questionaire says that I can supply aditional information for the judge, so was unsure if I just needed to put the facts there. it is a small court case, thank you for pointing out my mistake.

For what you are saying I must file a separate defence and deny each point
of the counter claim.
Do I need to use a special form to file the defence?

The tenant is claiming:
1- Flat was infested with feas
2- Toillet leaked
3-Carpets had fleas
4-boiler broke down 4 times during the tenancy
5- That he reported all these problems verbally
6-That he had paid a security deposit and this was not secured, therefore I must pay back 3 times the deposit as fine. He did not pay a security deposit and the section about deposit was crossed in our contract, so wonder what is the base of this claim.

As ussual will appreciate expert advice.

Regards

Alteano

westminster
17-02-2010, 19:13 PM
Thank you Westminster

The allocation questionaire says that I can supply aditional information for the judge, so was unsure if I just needed to put the facts there. it is a small court case, thank you for pointing out my mistake.
What they mean by 'additional information' is information relevant to deciding which is the appropriate track. In some cases, it's not 100% clear, or sometimes both parties wish to use a different track to the one which might normally be used, etc.


For what you are saying I must file a separate defence and deny each point
of the counter claim.
Do I need to use a special form to file the defence?
Yes, the defence is separate, and no, you don't need a special form, you can type it out yourself, but you must put what's known as a 'Statement of Truth' at the end, and sign below. The wording to use is: "I believe that the facts stated in this defence are true". (you may remember similar wording at the bottom of the Particulars of Claim form, same format except for the word 'defence').


The tenant is claiming:
1- Flat was infested with feas
2- Toillet leaked
3-Carpets had fleas
4-boiler broke down 4 times during the tenancy
5- That he reported all these problems verbally
So, presumably this is all an invention/fantasy (going by what you've stated in other posts).

In order for T to have a chance of success, he would need at least some evidence of the alleged disrepair, and - because he is claiming to have reported the problems verbally, and this is difficult to prove - he will need somehow to demonstrate that his version of events is more likely to be true than your version of events. (In small claims, cases are judged on a 'balance of probabilities', so on issues where there is no hard evidence, the court will consider who is a more reliable witness, or who is more likely to be telling the truth, even if it's 51% v. 49% more likely).

Therefore, it would help you if you have any hard evidence that the tenant has behaved unreasonably in the past. He was obviously not reliable about paying his rent, but do you, for example, have evidence that you attempted to gain access to inspect but T refused - any emails or text messages refusing access from T? Or anything else?

Similarly, it will help your case if you show that you have acted with due diligence with regard to carrying out reported repairs, gas safety checks etc. This will demonstrate that you have taken care to comply with your obligations as LL and are therefore a responsible person who is likely to be a reliable witness.


6-That he had paid a security deposit and this was not secured, therefore I must pay back 3 times the deposit as fine. He did not pay a security deposit and the section about deposit was crossed in our contract, so wonder what is the base of this claim.

If the T did not pay a deposit, then he has no grounds to claim. It's up to him to prove he paid a deposit - which he can't do if he didn't.


As ussual will appreciate expert advice.
Please note I am not an expert, I just have experience in pursuing a few small claims, and I also have a good book about small claims procedure! (by Patricia Pearl, you can find it on amazon). In fact, I will now look up the relevant section on defences and post her advice.

westminster
17-02-2010, 19:32 PM
Quoted from "Small Claims Procedure: A Practical Guide" by Patricia Pearl.

The defence must be more than a bare denial or it is liable to be struck out. Every part of the claim must be considered. It is practical to follow the same paragraph numbers as the claim so that nothing is missed out.

If an allegation is not covered in the defence it will be taken as proved. However, if the defendant does not admit a money claim the claimant must still prove that the sums due are owing.

The defence must state precisely which allegations are:

denied
admitted
not admitted or denied but the defendant requires the claimant to prove
if an allegation is denied, state reasons
set out the defendant's own version of events if different from the claimant's


Based on what you've said in other threads, you're not admitting anything. So you need deny each claim - one by one - give the reasons why, and give your own version of events if different to the tenant's version.

The approach to the disrepair allegations is, I hope, obvious. As for the deposit non-compliance claim, deny the claim, then state that the claimant did not pay a deposit therefore the claimant has no cause of action under s.214 Housing Act 2004.

...and don't forget the statement of truth.

westminster
17-02-2010, 20:08 PM
I recommend you buy that book....

What happens after this part of the procedure is over, is that eventually you be asked to send all your written evidence/documents to the court, as well as a witness statement (also ending with a statement of truth - i.e. "I believe that the facts stated in this witness statement are true").

So start thinking now about your document evidence (this includes photos BTW). There might be additional documents you need to obtain from third parties in readiness.

An easy way to help your case is to be very organized in compiling your documents (which may be letters, emails, transcripts of text messages, tenancy agreement, bank statements etc etc etc). Number the document pages, make an index of the documents, and go to a high street printers and get a few copies spiral-bound with the index at the front, so that when it comes to the hearing or if you refer to documents in your witness statement, you can easily refer the judge to, for example, "letter dated 15th May on page 23". This saves the judge time and I assure you the judge will appreciate it. You are also up against a solicitor so you need to be just as organized as they will be (though the judge will take into consideration the fact that you are a layperson, so don't worry excessively about 'competing' - you have the very major advantage of having the truth on your side).

General court etiquette tips: Address the judge as 'Sir' or 'Madam', and do not interrupt them when they are speaking, or the other party. Make a note of your point and when the judge or the other party has finished speaking, at that point ask if you may speak.

alteano1965
18-02-2010, 15:39 PM
Thank you very much Westminster, I am taking good note of your advice and have spent most of today getting documents together.

In the pack I received from the Court there is a letter stating that the defendat has to pay a fee of £1.530 to the Court by the 22nd February or the Local Court would strike out the conterclaim. I phoned the Court today and they told me that he has not paid jet, and to phone again on Monday, is this fee waived to people on legal aid?

I am a bit concerned about the deposit the tenant says to have paid to me; could he claim that one of the monthly rents he paid during the term (after the tenancy agreement was signed) was actually a deposit and not rent? On the other hand he was a relation of my previous tenant, who introduced him to me, maybe he paid him some money believing that this was a deposit ?

Thank you again

Regards

Alteano

P.Pilcher
18-02-2010, 15:47 PM
I would venture to suggest that the tenant must supply written proof of what he is stating. If he claims that he paid you in cash, then he must provide a written receipt signed by you. If he paid you by cheque, then he needs to provide the cheque made out to you appropriately marked "paid" by his bank.

P.P.

alteano1965
18-02-2010, 17:08 PM
Thank you P Pilcher.

The contract I used does not say in which way the payment is made, if it was in cash, would a cash receipt be needed to prove that the payment really took place?

Regards

Alteano

westminster
18-02-2010, 18:00 PM
In the pack I received from the Court there is a letter stating that the defendat has to pay a fee of £1.530 to the Court by the 22nd February or the Local Court would strike out the conterclaim. I phoned the Court today and they told me that he has not paid jet, and to phone again on Monday, is this fee waived to people on legal aid?
If you mean one pound and fifty three pence, this is a very low figure, so it would seem the tenant is getting assistance with court fees.


I am a bit concerned about the deposit the tenant says to have paid to me; could he claim that one of the monthly rents he paid during the term (after the tenancy agreement was signed) was actually a deposit and not rent? On the other hand he was a relation of my previous tenant, who introduced him to me, maybe he paid him some money believing that this was a deposit ?


No, he could not claim that one of his rental payments was a deposit. Not unless he had a letter or email from you saying that this is what happened. (And there would be no reason for a LL to say, okay don't pay me rent this month, pay me a deposit instead, so it would be a very implausible claim to make...).

If he paid a deposit to the previous tenant (I recall this tenant sublet from the previous tenant before he became your tenant?) then that is no concern of yours - the money was not paid to you, and the previous tenant did not pass the payment on to you, therefore you are not liable.

You've no need to be concerned, as P.Pilcher says, the tenant would have to provide specific evidence that he paid a deposit to you and since he doesn't have any evidence his claim will fail.

westminster
18-02-2010, 18:18 PM
The contract I used does not say in which way the payment is made, if it was in cash, would a cash receipt be needed to prove that the payment really took place?

It is not enough simply to verbally claim that the cash was handed over.

There are all kinds of evidence, and with a cash payment the best evidence would be a receipt signed by the receiver of the payment, or a receipt typed on company stationery if the recipient was a company.

Or there might be witnesses who saw the payment being made.

If no cash payment was made, then it would be impossible to 'prove' it happened without falsifying evidence, which is a serious offence. You will be sent a copy of the evidence submitted by the other party before the hearing, such as documents and witness statements. Neither party can produce 'surprise' evidence at the actual hearing - it must all be submitted in advance.

alteano1965
18-02-2010, 19:03 PM
Thank you again Westminster.

Sorry for my typo, I meant to say that the defendant was asked to pay £ 1,530 (one thousand five hundred and thirty pounds) by Monday 22nd, the letter says that if he doesn´t pay the fee, the Court will strike out the Counterclaim. Seems a very high fee to me, but maybe he won´t have to pay it, being on legal aid?

You are right, my previous tenant never used the property as his main residence, he actually lived next door, and allowed this friend (relation) to live at the rented flat. Maybe some money changed hands between the two of them at some point, and that is the reason the T says he has paid a deposit.

Regards


Alteano

westminster
18-02-2010, 19:22 PM
Thank you again Westminster.

Sorry for my typo, I meant to say that the defendant was asked to pay £ 1,530 (one thousand five hundred and thirty pounds) by Monday 22nd, the letter says that if he doesn´t pay the fee, the Court will strike out the Counterclaim. Seems a very high fee to me, but maybe he won´t have to pay it, being on legal aid?
That's the claim fee for claims over £300,000 or 'an unlimited amount'.

See - Court fees
http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50_web_1009.pdf

Personally, I would check back with the court and find out more.

westminster
18-02-2010, 19:27 PM
Maybe some money changed hands between the two of them at some point, and that is the reason the T says he has paid a deposit.
This sounds like a plausible explanation, but as I said, nothing to do with you. Either the solicitor is pretty useless (which is always possible) or tenant has provided him with misleading information, i.e. said he paid a deposit but failed to mention it wasn't paid to you, possibly not realizing that this detail is highly significant.

alteano1965
18-02-2010, 20:21 PM
Thank you Westminster,

There is no specific amount entered for the counterclaim, the box for the amount was left in blank by the defendant. They are counterclaiming for 3 times the security deposit they claim to have paid (£ 620) this would mean £1,860 plus awards for disrepears, I hope they are not expecting to get £300,000 from me!

In the statement of true the defendant says that only one cheque was returned unpaid by the bank, and denies my claim that several of his cheques were returned. I have in my possession 3 returned cheques, so maybe he has lied to his solicitor.

Regards

Alteano

westminster
18-02-2010, 21:10 PM
Thank you Westminster,

There is no specific amount entered for the counterclaim, the box for the amount was left in blank by the defendant. They are counterclaiming for 3 times the security deposit they claim to have paid (£ 620) this would mean £1,860 plus awards for disrepears, I hope they are not expecting to get £300,000 from me!
It seems they are going for the "unlimited amount" option! Pretty stupid when it attracts such a high court fee. So solicitor may well be useless. Longing to know whether the defendant will pay the court fee by Monday!


In the statement of true the defendant says that only one cheque was returned unpaid by the bank, and denies my claim that several of his cheques were returned. I have in my possession 3 returned cheques, so maybe he has lied to his solicitor.

Very likely. So submit photocopies of the returned cheques as evidence when the time comes.

BTW, the 'statement of truth' only refers to that phrase I quoted, i.e. "I believe that the facts stated blah blah...". The statement of truth is added onto the end of things like the 'particulars of claim', or the 'defence', or a 'witness statement'. It's just a formality which confirms that what you're saying is true. Hope this clarifies - I know the whole procedure is a lot to take on board when you go through it the first time. Easier the next time, and think of it as a useful learning experience.

alteano1965
18-02-2010, 22:34 PM
Thank you Westminster,

You are right, it has been a lot to take on board, and I am grateful for the help you are giving me. If the fee is not paid by Monday, would it mean that the counterclaim no longer applies, and therefore I do not need to defend it?...I have so far spent about 9 hours working on it, a good learning experience, must admit.

Best regards

Alteano

westminster
18-02-2010, 23:39 PM
If the fee is not paid by Monday, would it mean that the counterclaim no longer applies, and therefore I do not need to defend it?
Proceed on the assumption that the counterclaim will go ahead, and submit your defence within the required deadline.

alteano1965
19-02-2010, 10:08 AM
Thank you again Westminster,

I have been told by the Court that it is better to give it until Tuesday to check if the paymet has been made. I also wonder if the legal Aid will cover for so much.

I forgot to mention before that I was not present when the tenant signed the Tenancy Agreement, it bears my signature as the Landlord, of course, and that of the Tenant, plus my father in law´s as a witness, who was indeed present . Could this put in doubt the validity of the document?

Thank you

Alteano

westminster
19-02-2010, 11:19 AM
I have been told by the Court that it is better to give it until Tuesday to check if the paymet has been made. I also wonder if the legal Aid will cover for so much.
Fine, as long as Tuesday is within the deadline for submitting the defence. Tenant might pay the fee (and might get a reduction on it, who knows) one minute before the court closes on Monday.


I forgot to mention before that I was not present when the tenant signed the Tenancy Agreement, it bears my signature as the Landlord, of course, and that of the Tenant, plus my father in law´s as a witness, who was indeed present . Could this put in doubt the validity of the document?

Not at all. You do not have to be present when T signs, or vice versa. Nor is a witness necessary. (And legally, there doesn't even need to be a written agreement for a valid tenancy to exist - but it's obviously more sensible to have one).

alteano1965
19-02-2010, 19:15 PM
Thank you again Westminster,

I am replying one by one all the paragraphs in the counterclaim, in one of them the defendant says that he agrees that he occupied the premises as a tenant as from 01/01/2008 (the date we signed the contract) but he does not say that he was already living there without a contract with me, would it be worth it mentioning it? . In fact that was the very reason I agreed not to have a security deposit, I felt that some kind written agreement was better that none at all.

Best regards

Alteano

westminster
20-02-2010, 12:33 PM
I am replying one by one all the paragraphs in the counterclaim, in one of them the defendant says that he agrees that he occupied the premises as a tenant as from 01/01/2008 (the date we signed the contract) but he does not say that he was already living there without a contract with me, would it be worth it mentioning it? . In fact that was the very reason I agreed not to have a security deposit, I felt that some kind written agreement was better that none at all.

Yes, I would provide details of how the tenancy came into being; as you say, it provides a context for you not asking for a deposit. And you'll note in the bulleted list in post #5, it says the defence should set out your own version of events if different from the claimant's.

Note that, as a general rule, you should try to be reasonably concise and stick to basic facts. Judges have very limited time to read case documents, and may miss important points if they are hidden in a lot of unnecessary detail or waffle.

alteano1965
21-02-2010, 05:24 AM
Thank you Westminster,

I was not sure if it was a good idea to mention the previous tenancy agreement; I signed a contract with my neighbour, who was going to use the property to receive relatives from his home country who were coming on holiday, it seemed like a good idea, and I trusted him. However, I used the wrong form and the tenancy agreement with my neighbour says that it is an AST, but given that the property was never used as his main residence, then I believe that in fact the AST was never created, am I correct?

Regards

Alteano

westminster
21-02-2010, 13:58 PM
I was not sure if it was a good idea to mention the previous tenancy agreement; I signed a contract with my neighbour, who was going to use the property to receive relatives from his home country who were coming on holiday, it seemed like a good idea, and I trusted him. However, I used the wrong form and the tenancy agreement with my neighbour says that it is an AST, but given that the property was never used as his main residence, then I believe that in fact the AST was never created, am I correct?

Regardless of the name given to the contract, it was either an AST or a common-law contractual tenancy. Its precise status has no relevance to your claim against T, or to the counterclaim, i.e. this is an example of an irrelevant detail. All you need to state is that there was a previous tenancy with Mr Neighbour, who allowed Mr X. Tenant to sublet.

alteano1965
21-02-2010, 16:08 PM
Thank you Westminster,

I agree, I will not give further details of the previous tenancy in the counterclaim, however I strongly suspect that the rents for Nov and Dec 2007 were paid by cheque into my account, no by my neighbour, but by his relation, from his own bank account (before he became officially my tenant), as the branch the payments were made is the same he later used during the term.
I wonder if he has received advice to claim that those payments represent a security deposit for the tenancy that started in January 2008, and claim the X3 fine Could he succeed.? Or a Security deposit only becomes such once I admit knowledge of it, and issue a receipt?

Regards

Alteano

westminster
21-02-2010, 17:32 PM
I strongly suspect that the rents for Nov and Dec 2007 were paid by cheque into my account, no by my neighbour, but by his relation, from his own bank account (before he became officially my tenant), as the branch the payments were made is the same he later used during the term.
I wonder if he has received advice to claim that those payments represent a security deposit for the tenancy that started in January 2008, and claim the X3 fine Could he succeed.? Or a Security deposit only becomes such once I admit knowledge of it, and issue a receipt?

Assuming this tenant did make those payments for the Nov & Dec 2007 rent, he can't get away with claiming they were secret deposit payments.

The definition of a deposit under s.212(8) Housing Act 2004 (http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4) is as follows:


“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—
(a)the performance of any obligations of the tenant, or
(b)the discharge of any liability of his,
arising under or in connection with the tenancy.

The tenant would have to prove there was an intention on your part to hold the money as security against a future tenancy. If the payments were equal to the rent and paid on the rent due date, and there is no written indication from you that you intended to 'hold' the money against a future tenancy, (instead of treating the money as rent), I am certain the judge would find that the payments were not deposit payments.

But you do need to say that there was a previous tenant/tenancy (without going into whether it was an AST or not) so that it is clear that these payments were rent. It might also be a good idea to include a copy of the previous tenancy agreement when it comes to submitting evidence, and any written evidence you may have of when/how that tenancy ended, how you came to discover the subletting.

You'll remember that I mentioned before there can be no 'surprise' evidence produced at the hearing, and not previously disclosed. This means that you will (or should) know exactly what the tenant is alleging before the hearing, which will give you the opportunity to submit any evidence with undermines the allegation. In short, the tenant can't 'trick' you by suddenly changing his story at the hearing - any evidence not previously disclosed will not be admitted. He can change his story before the hearing, so long as he informs you and the court, but the judge may want to know how the 'confusion' arose.

Does the T's counterclaim give any details of the alleged deposit in terms of when he claims he paid it, etc? It should at least say the date he claims to have paid.

Don't get too worried/stressed about it all. You are telling the truth, which gives you a huge advantage. The tenant is lying and judges are very accustomed to people lying and seeing through those lies - it's part of their job and they are not stupid.

alteano1965
21-02-2010, 18:16 PM
Thank you Westminster, very useful information.

I have been a bit stresed over this, must admit, partly because I can not understand how the tenant´s solicitor has drafted a conterclaim, asking for a fine, knowing that there is no security deposit taken in the Rental Agreement, so I have been trying to imagine what they may be up to.
No, in the counterclaim the defendant gives no details as to when or how he has paid a security deposit.

On the other hand I did take a security deposit from my neighbour in July 2007, which I did not secure, as I believed I did not have to, given that the AST was never created. I now fear that he may come back, adviced by his relation, to try to get the 3Xdeposit fine. Would it be difficult to defend myself then?


Best regards

Alteano

westminster
21-02-2010, 19:25 PM
No, in the counterclaim the defendant gives no details as to when or how he has paid a security deposit.

It's like someone alleging "He ran me over in his car", but not the date it allegedly happened, registration number of vehicle, location, etc. How can you defend yourself against such a vague allegation, other than simply to deny it?

I would say something like this in the 'defence to counterclaim': The claimant denies that he received a security deposit from the defendant at any time. The claimant notes that the defendant omits to give any details as to the date and manner in which he alleges he paid a deposit, [nor the amount of the alleged deposit]*, and the claimant puts the defendant to strict proof of the same.

*If that's the case.

On further consideration, as the T has made no specific claim in relation to the deposit, I think you should not include details of the previous tenancy in the defence to counterclaim, just stick to bare facts/denials, but do mention it in your witness statement (which you will submit along with all evidence such as letters, photos etc later on in proceedings).


On the other hand I did take a security deposit from my neighbour in July 2007, which I did not secure, as I believed I did not have to, given that the AST was never created. I now fear that he may come back, adviced by his relation, to try to get the 3Xdeposit fine. Would it be difficult to defend myself then?
Don't worry about this now; the likelihood is that it will never happen. And yes, it could well be a valid defence if he did claim, as would having returned the deposit over two years ago.

alteano1965
22-02-2010, 05:25 AM
Thank you Westminster,

I have copied and pasted your lines to use in my defence, thanks again. I wonder if solicitors are not supposed to behave within certain code of practice, in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?

I did not return the security deposit to my neighbour, given that there were two months of unpaid rent (August & September 2007), I decided to retain the one month´s security deposit, as payment of rent for August 2007. I know that under an AST I am not allowed to do that, but in this case the tenancy was not in practice an AST, although I suppose the onus would be on me to prove that the neighbour did not take residence at the property (?).

I never recovered the rent for September 2007, either from the neigbour nor from the resident, who later became my tenant. I just put it down to loses and got on with my life...until now.

There was no formal termination of contract with my neighbour, it was just a case of here you have the subtenant and you are lucky that he is willing to pay rent, I signed the new agreement for 6 months with them, and three months later things started to go wrong.

Best regards

Alteano

jeffrey
22-02-2010, 09:36 AM
I wonder if solicitors are not supposed to behave within certain code of practice, in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?
Solicitors do comply with the Solicitors Code of Conduct 2007. Their job is to act for their client, not to be even-handed between him and you.
If you wish to represent yourself, unadvised, that's your prerogative.

westminster
22-02-2010, 10:13 AM
in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?I don't know the precise rules but I do know that it is not unusual for solicitors to act on behalf of clients who are lying - my last claim was against a local council, and the defence, drawn up by an outside firm of solicitors, contained lies. It may come down to the difference between actually knowing something your client has told you is false, and merely suspecting it privately.

As Jeffrey says, their job is to represent their client as best they can.

Anyway, let's see whether the fee for the counterclaim does indeed get paid today. If it does, and assuming the counterclaim is for 'an unlimited amount' and this isn't an error, then the claim may well not get allocated to the small claims track. In this event, as Jeffrey is hinting, it would be advisable to consider getting professional legal advice before submitting your defence.

alteano1965
22-02-2010, 12:32 PM
Thank you Westminster,

The rental agreement says clairly that no security deposit was received, so unless the defendant has fabricated evidence, his solicitor must know he is lying, but that is not possible to prove.

I believe that legal aid is not available for the small Court track, so that may be the reson why they are going for the unlimited amount compensation for the alleged disrepairs and flea infestation, the security deposit fine would only be £1,800. I suppose the legal aid fees are changed no matter the outcome?

Regards

Alteano

westminster
22-02-2010, 12:43 PM
I believe that legal aid is not available for the small Court track, so that may be the reson why they are going for the unlimited amount compensation for the alleged disrepairs and flea infestation, the security deposit fine would only be £1,800. I suppose the legal aid fees are changed no matter the outcome?
If the claim isn't allocated to the small claims track (which is possible if the counterclaim doesn't get struck out for non-payment of fees today), then in the event you lose the claim, it's possible that you might have to pay all or some of the defendant's legal fees. This raises the stakes, which is one reason why it would be advisable to get some professional advice.

Have you returned the allocation questionnaire yet? If not, when is the deadline for returning it?

alteano1965
22-02-2010, 12:56 PM
Thank you Westminster,

I have phoned the Local Court and to this point today, the fee has not been paid, but was also told that the counterclaim doesn’t get struck out automatically when fees are not paid....

I have just noticed that the letter requesting the defendant to pay a fee of £1,530 was sent out by Northampton

Few more hours to go....

Regards

Alteano

westminster
22-02-2010, 13:05 PM
I have phoned the Local Court and to this point today, the fee has not been paid, but was also told that the counterclaim doesn’t get struck out automatically when fees are not paid....


You said before that the letter said it would get struck out if the fee wasn't paid? So if it doesn't happen automatically, what needs to be done to make it happen?

westminster
22-02-2010, 13:07 PM
Also, have you returned the allocation questionnaire yet? If not, when is the deadline for returning it?

alteano1965
22-02-2010, 13:17 PM
Thank you Westminster,

Sorry I missed out before, no I have not jet submitted the allocation questionnaire, the deadline for both, defence of counterclaim and allocation questionnaire is the 25th February.

The letter says " A fee of £1,530 must be paid by the defendant to the XXXXXXXX County Court within 14 days of this letter or the local Court will take steps to strike out the Counterclaim. Cheques or Postal Orders should be made payable to HMCS.

Best regards

Alteano

alteano1965
23-02-2010, 09:46 AM
Hi

I have phoned the local Court this morning, they can confirm that the defendant has filed the Allocation Questionnaire, and not paid the fee for the Counterclaim by the deadline, which was yesterday.

They could not confirm that the Counterclaim will be struck out, although the letter sent to the defendant by Northampton (of which I received a copy) says it will be, if the Defendant failed to pay the fee to the local court by the 22nd February.

Will be grateful for some opinions, please.

Thank you

Alteano

westminster
23-02-2010, 13:05 PM
I have phoned the local Court this morning, they can confirm that the defendant has filed the Allocation Questionnaire, and not paid the fee for the Counterclaim by the deadline, which was yesterday.

They could not confirm that the Counterclaim will be struck out, although the letter sent to the defendant by Northampton (of which I received a copy) says it will be, if the Defendant failed to pay the fee to the local court by the 22nd February.

It would be dangerous to assume the counterclaim will be struck out, so submit your defence to counterclaim and the allocation questionnaire before the deadline (I'd use Special Delivery before noon service to be sure it gets there).

I stupidly forgot to mention an important point about the claim for deposit non-compliance and the 3x penalty. Court rules (called Civil Procedure Rules) say these type of claims must be issued on form N208 and they follow a different procedure whereby the claimant must serve, along with the particulars of claim, a copy of the written evidence on which he intends to rely. Clearly, he hasn't obeyed this rule, so I suggest you say something like this in the defence to c'claim (expanding upon what I suggested before).

The claimant denies that he received a security deposit from the defendant at any time. Part 56 of the CPR requires that claims under s.214 of the Housing Act 2004 must be started using Part 8 procedure, and as such the defendant's written evidence should have been served together with the counterclaim. (See CPR 56.1(1)(f); PD 56.2, para.2.1). Not only has the defendant failed to follow the correct procedure, he has omitted to give any details as to the date and manner in which he alleges he paid a deposit, and the claimant requests that this part of the counterclaim be struck out, failing which the claimant puts the defendant to strict proof of this claim.

As for the allocation questionnaire, indicate that you would like the claim to be dealt with in the small claims track. State that according to the court letter [dated X] addressed to the defendant, of which you received a copy, the counterclaim would be struck out if the fee wasn't paid by the deadline of [date]. You telephoned the court on [date] and they confirmed that the fee had not been paid by the defendant.

alteano1965
23-02-2010, 13:52 PM
Thank you Westminster,

You are right, I can not take for 100% certain what I am being told by phone, therefore I will submit the defence regardless. Will submit the Allocation Questionnaire and the Defence in person at the Court Counter on Thursday morning, I hope they will give me a receipt stating what I am submitting

I will mention in my defence that the defendant has not issued a N208 form, nor the written evidence, as he is required to do, thank you again for the information. However, by mentioning what they should have done, will I be telling their solicitors exactly what they need to do to succeed?

Thank you once again

Alteano

westminster
23-02-2010, 15:38 PM
Will submit the Allocation Questionnaire and the Defence in person at the Court Counter on Thursday morning, I hope they will give me a receipt stating what I am submitting
The last time I handed something in in person, the court refused to give me a receipt. No idea why or whether this is standard. Take a witness.


I will mention in my defence that the defendant has not issued a N208 form, nor the written evidence, as he is required to do, thank you again for the information. However, by mentioning what they should have done, will I be telling their solicitors exactly what they need to do to succeed?
If you say nothing, and in the event that the defendant pays the court fee late and the counterclaim proceeds, there is a chance that the procedural error will not be spotted by the court staff. If it is spotted, the defendant will find out their mistake anyway.

If you say something, I think you increase the chances it'll get struck out. But it's completely up to you to decide which course of action you feel is best.

westminster
23-02-2010, 15:45 PM
We discussed previously your concerns over whether the tenant could retrospectively claim that a rent payment was a deposit etc.

I just wanted to mention that some landlords make the error of taking 'rent in advance' (I mean on top of the usual one month paid in advance). They think that because they call it 'rent in advance', that it's not a deposit, but in many cases, because the money is intended to be held as security by the LL, it does in fact fit the legal definition of a deposit.

I mention this just in case that is what you did (though I think you'd have said something before now if you had).

alteano1965
23-02-2010, 16:28 PM
Thank you Westminster,

You are right, I will ensure to mention in the Allocation Questionnaire what I have been informed today; that the fee for the couterclaim was not paid, and my understanding that the counterclaim should now be struck out. Would it be worth it to mention this also at the beginning of my defence?

I will pay the £35 fee in cash, last time I went to the Court to submit the request for a warrant for possession I did get a receipt, but will take a witness just in case, thank you for suggesting it.

I rememeber reading that any advanced rent could be deemed to be a security deposit, it is not my case, but since the tenant was in residence before the agreement was signed, and I think he was the one who paid the November and December 2007 rent, I suspect that maybe his solicitor has adviced him to use this in his favour. I will have to wait to see what he has prepared to show as evidence of the alleged deposit he claims to have paid.

Thank you again

Regards

Alteano

chappers2341
23-02-2010, 16:31 PM
I just wanted to mention that some landlords make the error of taking 'rent in advance' (I mean on top of the usual one month paid in advance). They think that because they call it 'rent in advance', that it's not a deposit, but in many cases, because the money is intended to be held as security by the LL, it does in fact fit the legal definition of a deposit.



Just to further emphasise that "rent in advance" would only be a deposit if the tenant was required to make a further payment, before the "rent in advance" was exhausted.
for example if the tenant paid three months rent at the begining of month one and was required to again pay rent at the begining of month 2 then the "rent in advance" would be deemed a deposit, but if rent was not then due until the begining of month 4 then it would actually be rent in advance and not a deposit.

Again as Westminster says there is no indication that you have done this.

alteano1965
23-02-2010, 17:29 PM
Thank you for clariying this Chappers, for what you say, it is not enough that the tenant makes a payment into the Landlord's bank account, for that payment to become a security deposit, it would have to be requested by the Landlord, and as Westminster has said before, there would have to be indications that the Landlord intended to retain that money as a deposit.
Maybe that could be my argument, should I need to defend, I had no reason to think that those two payments were anything else than due rent, they were make by cheque, and there is no reference next to the payment in my bank statement.

Regards

Alteano

westminster
23-02-2010, 18:40 PM
Maybe that could be my argument, should I need to defend, I had no reason to think that those two payments were anything else than due rent, they were make by cheque, and there is no reference next to the payment in my bank statement.
As I've said before, if the tenant were to specifically claim those two payments were not rent relating to the previous tenancy, he'd need hard evidence to support this claim. He doesn't have this evidence. Whereas you have evidence that there was a previous tenancy and that those rent payments were rent.

There is no point worrying about what the tenant might claim. Wait and see whether 1. the counterclaim does proceed, 2. if so, what evidence the tenant submits.

alteano1965
23-02-2010, 19:31 PM
Thank you Westminster,

If I am ever required to, how could I provide evidence that the tenant was indeed living at the rented property before the commencement of our rental agreement, or that the neigbour did not use the house as his main residence?

It is still not clear if the counterclaim will be struck out, maybe it is discretionary to the judge?

As a point of interest, I found today a letter in the kitchen, it was a summons for the 1oth March from the Magistrate court to the tenant addresssed to him, for his unpaid council tax. This could mean that he has not given the council his new address, maybe he is no longer claiming housing benefit.

Best regards

alteano1965
25-02-2010, 15:48 PM
Hi

Forms submitted today at the Court. Was informed that the defendant had submitted his allocation questionnaire on time, but had not paid the fee for the counterclaim, therefore it would be dismissed and I should receive communication from the Court about this. I did submit my defence, just in case.

Thank you again for all the help

Regards

Alteano

westminster
25-02-2010, 20:00 PM
If I am ever required to, how could I provide evidence that the tenant was indeed living at the rented property before the commencement of our rental agreement, or that the neigbour did not use the house as his main residence?
First Q - by the fact that he paid two rent installments, your bank can provide confirmation that the payment came from T's bank. Second Q - you do not need to prove that the neighbour didn't use the house as his main residence; no-one is claiming he did, and it not part of the (probably to be struck out) counterclaim.


As a point of interest, I found today a letter in the kitchen, it was a summons for the 1oth March from the Magistrate court to the tenant addresssed to him, for his unpaid council tax.
Contact the council tax department and the magistrate's court and give them T's new address. Also tell council tax that T vacated on such and such a date.

westminster
25-02-2010, 20:05 PM
Hi

Forms submitted today at the Court. Was informed that the defendant had submitted his allocation questionnaire on time, but had not paid the fee for the counterclaim, therefore it would be dismissed and I should receive communication from the Court about this. I did submit my defence, just in case.
Well, hopefully it'll get struck out and stay that way. It does appear to suggest that the T couldn't get assistance with the fee.

Esio Trot
25-02-2010, 23:20 PM
Forms submitted today at the Court. Was informed that the defendant had submitted his allocation questionnaire on time, but had not paid the fee for the counterclaim, therefore it would be dismissed and I should receive communication from the Court about this. I did submit my defence, just in case.

Once the counterclaim has been thrown out, you might be able to ask for a wasted costs order. Not sure this applies, but if it does at least you will be able to claim back your £35 allocation fee.

alteano1965
26-02-2010, 06:38 AM
Thank you westminster,

You are right; the bank statements should show all the monies I have received. One question however, if I needed to submit my bank statements as proof, will I have to give copies to the other part as well?; Besides their rent payment, my bank statements contain financial information that I would not be particularly interested that the other part knows.

I think at some point, the previous tenancy will discussed at the hearing, as I feel that the defendant believes that he "inherited" the deposit from his relation. If this happens, could I claim that a previous tenancy would have to be discussed at a separate hearing, and the previous tenant would have to be the claimant?

Thank you again

Regards

Alteano

westminster
26-02-2010, 11:09 AM
You are right; the bank statements should show all the monies I have received. One question however, if I needed to submit my bank statements as proof, will I have to give copies to the other part as well?; Besides their rent payment, my bank statements contain financial information that I would not be particularly interested that the other part knows.
Obviously, if the T's counterclaim is thrown out, you will not need to submit such evidence. But in theory, yes, both parties must receive copies of each other's evidence. Anyway, you said before that the bank statement showed the branch where the credit was made so you only suspected the payments were made by the defendant? - better proof would be to get a letter from your bank confirming the account details of the payer of the payments. Alternatively, if the statement does show payer details, then you could photocopy it, strike through irrelevant information with a black marker pen, then re-photocopy it.

Similar to some MP's expenses, see example in this link (http://www.thisislondon.co.uk/standard/article-23708990-key-details-of-mps-expenses-censored.do).



I think at some point, the previous tenancy will discussed at the hearing, as I feel that the defendant believes that he "inherited" the deposit from his relation. If this happens, could I claim that a previous tenancy would have to be discussed at a separate hearing, and the previous tenant would have to be the claimant?

Again, if the counterclaim is thrown out, the issue of the alleged deposit and the previous tenancy will not be relevant or need to be discussed - all you are claiming is arrears from the subsequent tenancy.

But as to your question, if the counterclaim were to proceed, and the tenant claimed the previous tenant's deposit was somehow his deposit, this argument quite simply wouldn't stand up. It would not need to be discussed at a separate hearing. If the previous tenant wants to make a claim for non-compliance with deposit protection, that's up to him - but as it wasn't an AST, and the tenancy ended over two years ago, I think this is extremely unlikely to happen (and you are worrying far too much about it).

alteano1965
26-02-2010, 14:58 PM
Thank you Westminster,

I appreciate your guidance, I am trying to understand the law, and how it works in Court, if not this time, all this information will be useful for me in the future, should I ever face a similar legal problem. It is a complete new scenario for me, thank you again

Regarding payment of rent, during the 25 months of duration of the tenancy, the tenant only paid 20 months rent, always by cheque into my bank account, some of those cheques bounced and were paid eventually, some other were returned unpaid.

Fortunatelly I have kept all banks statements, they come to 107 pages of A4 size, so if the counterclaim stands, I would have to provide 2 separates sets each of 100 pages photocopied.
In your opinion, blanking out the non relevant entries of the bank statements would be accepted in Court? (MPs seem to have done that)

Thank you again.

Best regards

Alteano

alteano1965
09-03-2010, 06:10 AM
Hi everyone.

A big thank you to this forum, and specially to Westminster, who has helped me a lot with my claim and defence.

I have received a letter from the Court giving me a date for a Hearing for July 23rd 2010, on the Small Claims Track. Still do not know if the counterclaim has been truck out, but I suppose that the fact that the case has been allocated to the small claims track, and not the fast track is good news.

I have read that Legal aid is not available for small claims, so maybe the defendant will not be represented by a solicitor, but by himself.

Will be grateful for any opinions on the subjet.

Thank you again

Alteano

davidjohnbutton
09-03-2010, 11:04 AM
Where a tenant alleges payments have been made, it is NOT for the landlord to prove he did NOT receive such payment, it is for the tenant to prove that he DID pay.

So, forget about photocopying 100's of bank statements, just taken them with you to court on the hearing day. In examination, ask the tenant for a few of the disputed dates when he says he paid into your bank account (after confirming its the correct account number in court) and then ask him to produce a receipt or paying in slip. When he says he cannot, look through your statements several days either side and state that this particular payment does not appear on the bank statement. Do that say 5 times and the judge will see the tenant is trying it on and accept your figures and reject the tenants.

jeffrey
09-03-2010, 11:16 AM
Yes. Every case involves the person propounding a claim or an allegation to pot forward supportive evidence. Here, it's T who alleges payment; so it's T who has to support this claim, on at least the balance of probabilities. If he can substantiate his claim, it's then for L to try and rebut it.

westminster
09-03-2010, 11:37 AM
Where a tenant alleges payments have been made, it is NOT for the landlord to prove he did NOT receive such payment, it is for the tenant to prove that he DID pay.

So, forget about photocopying 100's of bank statements, just taken them with you to court on the hearing day.

djb, are you perhaps thinking this thread is about a s.8 hearing? Because it's a form N1 county court claim by OP for arrears, against a T who has already been evicted via s.21 route. As such, OP will surely have to disclose in advance any evidence he may wish to use at the hearing?

westminster
09-03-2010, 11:41 AM
I have received a letter from the Court giving me a date for a Hearing for July 23rd 2010, on the Small Claims Track. Still do not know if the counterclaim has been truck out
Have you tried phoning the court to find out, because it has been at least two weeks now, hasn't it?


I have read that Legal aid is not available for small claims, so maybe the defendant will not be represented by a solicitor, but by himself.

Yes, I'm fairly sure that you cannot get legal aid for small claims.

davidjohnbutton
09-03-2010, 13:39 PM
My reply is applicable to both a S8 process or an ordinary summons.

I for one would not be photocopy disclosing my bank statements as part of discovery - on the grounds of privacy and id fraud prevention. I would take them into court with me if need be

The procedure is semi formal in the small claims court - hopefully the tenant would disclose what payments he alleged he had made so the other party can go through them and accept or rebut - also receipts ought to be disclosed too. If they arnt, the landlord can always apply for an order forcing the tenant to disclose this information and produce receipts by a certain date or have his counterclaim struck out.

westminster
09-03-2010, 13:56 PM
My reply is applicable to both a S8 process or an ordinary summons.

I for one would not be photocopy disclosing my bank statements as part of discovery - on the grounds of privacy and id fraud prevention. I would take them into court with me if need be
Yes, OP was concerned about privacy issues, quite rightly. Thanks for clarifying.

alteano1965
09-03-2010, 15:52 PM
Thank you Westminster, Davidjohnbutton & Jeffrey for your replies.

It is a great relief to know that I do not need to send copies of my bank statements to the other party, I was not happy with having to do that. I will take my bank statements along on the day of the hearing, thank you for the advice.

During the 25 months that the tenant lived in the flat, I received 20 payments of monthly rent, which I have recorded with the exact date they were credited into my bank account. During that time three cheques were returned unpaid, which I have kept, and seven cheques were unpaid, represented, and finally credited.
Maybe a list of these payments and non payments, with the appropiate dates and amounts should suffice?

Westminster: I have phoned the Court several times, to try to find out whether the Counterclaim has been struck out or not, but they still cannot confirm, am I allowed to demand this information?

Thank you all again

Alteano