View Full Version : counter claim
12-03-2010, 17:53 PM
Good evening everyone. we went to court today to gain possesion of our property. The defendant turned up with her solicitor who put in a counterclaim. They are disputing the rent although the contract quite clearly states what the rent is, tenant arguing that a verbal agreement was in place and we agreed that we would accept what ever hb she was able to claim (totally untrue)
they are claiming the house is in disrepair with statements such as the house draughty ( it is a large five bedroomed edwardian property) the boiler does not work properly and that british gas has served us notice. we called british gas who confirmed that they could not match the refernce of the so called refernce with any of the jobs for the property, british gas has provided us with written confirmation of this ( we beleive that the tenant has forged the notice somehow because british gas definatly did not issue it). the tenant states that she has been paying 10 each week towards the arrears (untrue) she did not even have any proof of this, and so the list goes on. The judge did not even look at our evidence and decided to adjourn until the 21st June!! so that we can obtain reports etc.. we told the judge that we had evidence with us she refused to consider it until the new hearing date. The tenant has told the judge that she has no where to live if she was evicted and that her son has sickle cell and is classed as disabled.
I could not beleive what I was hearing surely the whole purpose of section 8 is manadatory and the judge is supposed to look at all the evidence on the day before making a decision.
Please please can you tell me what we can do next.
thank you London girl
12-03-2010, 20:18 PM
Unfortunately, you have come across one of the few scenarious where there is a counter claim against unpaid rent which MIGHT reduce the unpaid rent below the mandatory possession order level of 2 months/8weeks.
The judge has to consider this and allow the defendants time to submit evidence and for you to obtain counter evidence which is what you must now do.
Get any alleged repairs sorted out. If they are false allegations of disrepair, then get a tradesman to say so. Ask the solicitors for proof of payment of this £10 towards the arrears and when and if solicitor stalls or his client does not provide the info, push and push right up to the June date for this info unless solicitor agrees they cannot prove it.
Illness, ask for proof - you are entitled to see some medical evidence if it has a bearing on a possession order. Again, if its not forthcoming, push until is it proven false. If you can prove beyond doubt the tenant has forged a document produced in court, report it to the police and pass the police report into the county court - its a serious offence!!!!!
Unfortunately the judge would only have had about 10 to 15 minutes allocated for a seemingly straightforward possession hearing which then turned into a complicated possession hearing which is obviously going to take more time - there are other people behind you in the court lists. I have been in court for PO's that took literally 3 minutes from in room to out of room where tenants didnt turn up. Conversely I have had to tackle last minute defences on the spot. The judge is absolutely right not dealing with the matter there and then for these reasons.
12-03-2010, 21:43 PM
thanks David, this is so frustrating because she is lying but I guess all I can do now is do as you have advised, put in my defence and wait for the date of the hearing
13-03-2010, 08:55 AM
Sorry to hear about this, londongirl. I am also evicting a tenant for non-payment of rent who I fear might play this game.
Wonder, davidjohnbutton, if there is anything the claimant could do in advance of the court hearing to prepare for such eventualities and false counterclaims.
13-03-2010, 11:16 AM
Did you serve a section 21 as a back up? If not serve one now. that way you have a back up.
13-03-2010, 13:02 PM
Unfortunately bsx there is not a lot you can do other than to make sure your paperwork is all ok and prepped into bundles as I posted elsewhere.
It all comes down to whether a judge can do his/her job during the 10 or 15 minutes allocated to each possession hearing and whether or not there is a last minute defence dreamed up by a housing aid officer or solicitor for the defendants. Go in at least to prove arrears and that S8 notice served and a spreadsheet showing the arrears. A lot of arguments over the amount actually outstanding are dismissed by the judge saying "Your monthly rent is £400 - how much do you think you owe your landord?" Answer "about £900 but not the £2000 he says". Judge has then no option but to issue mandatory possession order since the tenant has admitted the arrears are over 2 months/8weeks worth.
It is no good protesting about late defences being produced on the hearing date since the judge has an overriding duty to hear both sides fairly and to avoid where possible giving grounds to either side for an appeal because of bias - so where a couterclaim or defence is produced, be that late or not, it has to be trialled.
13-03-2010, 15:24 PM
Thanks, David, for your response. I note you point about being armed with all the facts on rent arrears....However, I can’t understand how, as londongirl quotes, “The judge did not even look at our evidence and decided to adjourn until the 21st June!!”. Surely, a pre-pack bundle, if submitted beforehand with all the evidence should give the Judge (if s/he reads the information) to question defendant about the unpaid rent, and consider the arguments on both sides.
Given that my T’s circumstances are similar, what I am asking, specifically in relation to accusations by T about disrepairs in the house and the claim for such expenses, is whether actions taken by the LL in advance can be used as evidence in defence of such a counterclaim? For example, if I know that T has carried out some work at the property without my authority and permission, and persistently ignores my request to inspect the property and subsequent notices handed out that this is in breach of the tenancy, couldn’t that serve as evidence in defence of such a claim?
13-03-2010, 16:39 PM
The problem is, as I said, that the time allocated by the court for a SIMPLE UNCOMPLICATED possession order is about 10 to 15 minutes. Anything beyond that has to be listed for a separate hearing with more time allocated. That is why, when a defence was brought up by the solicitor acting for londongirl's tenant, the judge saw immediately that he/she did not have enough time to hear arguments which could have taken longer than the allocated time and adjourned it. This is also to be fair to other court users who are waiting to have their cases heard on the same day.
A tenant may or may not have a valid defence against rent arrears if they can show that for example, a heating system has broken down and the landlord failed to repair it and that cost them x amount in alternative heating. Whether that claim succeeds or not is based on the evidence of both sides and if you think that your tenant bsx is going to raise a repairs situation as a defence to a rent arrears claim, you should be prepared as much as possible to refute that on the day BUT expect it to be adjourned just at londongirl's was for a later day trial.
Unfortunately tenants are more and more assisted by housing aid or legal aid solicitors to whom they spin their tales and the HA or LAS is bound to take their instructions. When I have been faced with a last minute defence, I have politely pointed out the lateness of the defence - the fact that papers were served x weeks ago and they never said a dicky bird until now - the payment history between issue of S8 and the hearing date (usually not paid a penny) and the repairs records for the property showing no repairs reported or outstanding. I ask how much they are counterclaiming and for what.
Usually that sorts the wheat from the chaff and gets me the possession order - particularly as I trapped one solicitor over a £3k arrears bill where he said he thought a counterclaim of £1000 would be right. So I said they (his clients) are admitting to arrears of £2000 - the rent a month is £500 - and I pointed out to the judge that he must make a mandatory order as unpaid rent was 4 months on that basis. So I got a possession order 14 days and judgment for £2000 plus court costs - all done and dusted in 15 minutes.
Solicitor was a pillock and obviously did not think quickly enough - you have to be on the ball!!!!!
13-03-2010, 17:10 PM
Thank you, David, you have given me enough food for thought!
I was up to now barking up the wrong tree by pre-empting any possibility of a counterclaim with letters and notices, whereas what matters is how you present (and defend) your case on the day by focussing on the rent arrears ground 8, where it matters most.
17-03-2010, 20:10 PM
yes the saga continues. I wrote to the tenant requesting access to the property so that the we could start the process of getting the repairs (if any done) I did not say the bit in paragraph to the tenant!!. I personnaly put the letter through the letter box on Sunday 14th march requesting access for Monday 22nd march. tuesday 16th March received a call from the tenant solicitor wanting to know what repairs I wanted to carry out. I did not go into detail however the solicitor informed me that they would write to me. I received said letter this morning. solicitor would like me to confirm what repairs I am going to carry out before I can gain access and informed me that if I wish to contact the tenant I need to do this through them!!! surely they do not have the right to insist on denying access for repairs unless I tell them what needs to be done? I am not prepared to carry out any repairs until it has been confirmed by an engineer /tradesman that this work needs doing. Do they have the right to deny access and also to tell me that I am not allowed to write to tenant? Also I have items stored in the garage, it is not an integral garage but at the side of the property, the tenant is aware of this, am I allowed to go and get items from the garage. The tenant does not have access to the garage because it is bolted from inside and I have the external key.
19-03-2010, 10:18 AM
This is a difficulty with section 8 claims.
Has T served any evidence in relation to the alleged disrepair (surveyors report etc).
Personally rather than ask for access to carry out a repair I would ask for access to assess the tenants allegations. You should then attend with a professional to consider whether any work does need to be carried out.
If you are able to persuade the judge at the next hearing that there are clearly sufficient arrears (irrespective of the counterclaim) then you can argue that a mandatory possession order should be made now, with the balance of the rent arrears and the tenant's counterclaim to be tried as a small claims matter.
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