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montana
30-03-2010, 11:27 AM
Hi Folks.

We have just been recorgnised as being rent act tenants instead of assured.
We were paying a normal market rate rent before.
My question is : How many yrs can we go back to recoup overpayment of rent from the LL ?
l have been given two answers in the past * 2 yrs * and *6 yrs *

Thanks.

davidjohnbutton
30-03-2010, 15:14 PM
You can recover any overpayment going back 6 years over and above a registered rent.

So for example back in 2003 the rent officer registered £80 a week, but you have been paying £100 a week - thats 6 x 52 x £20 £6240 and also future rent payments would reflect the decrease down to the official registered rent level.

You can find the rent registered by going online to the valuation office and clicking the online rent register and searching. Last time I used that system it didnt work with Vista or Win 7, only with XP or lower.

davidjohnbutton
01-04-2010, 11:04 AM
I am in fact wrong in saying 6 years - it is in fact 2 - see paragraph 57 of http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770042_en_4#pt3-pb4-l1g42

jeffrey
01-04-2010, 14:28 PM
I am in fact wrong in saying 6 years - it is in fact 2 - see paragraph 57 of http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770042_en_4#pt3-pb4-l1g42
Yes. The two-year limit is specific to Rent Act 1977 lettings, of course. The normal six-year limit would otherwise apply.

montana
07-04-2010, 14:38 PM
Why is that so David & Jeff ? l mean just 2 yrs in the case of rent act tenants

Does that seem fare to you guys ?

If an assured tenant or a short let tenant has made overpayments in rent, are they also restricted in recovering overpayments in rent just 2 yrs back ? or couldnt a situation ever arise that way regarding those tenancy's ?

We have overpayed rent through no fault of our own, atermpting to be reasonable with our current LL that we have always been rent act tenants.
Now that they have finally accepted this, we find oursleves not being able to get back what is owed to us by the LL for no more than the past 2 yrs.
Do we simply have to bite the bullet on this one and accept that we will never recover our overpayment of rent for many yrs previously before this 2yr law?
l think we should at least ask the current LL to payback the overpayment in rent from the time they bought our building.

Anyones thoughts or opinions on this matter would be greatly recieved.

Charles.


Thanks Charles

mind the gap
07-04-2010, 15:22 PM
Why is that so David & Jeff ? l mean just 2 yrs in the case of rent act tenants

Does that seem fare to you guys ?



Whether or not it seems fair to djb or to jeffrey is immaterial; they have told you what the statute (law) is and they have no power change it.

There are presumably reasons for this difference in rights, possibly to do with the extra security of tenure and often low rents enjoyed by Rent Act tenants compared with AST tenants, for example.

Why should an exception to the law be made in your case?

montana
07-04-2010, 15:45 PM
Thanks for the input MTG, l'm just asking Jeff and David what they think about all this.

We have not enjoyed the security and low rents upto this date, you mentioned , so in our case we feel these rights didnt benefit us.

l think under those circumstances an exception to the law would be justified.

jeffrey
07-04-2010, 15:51 PM
Still irrelevant, I fear; the law is what it is, whether your special pleading would or would not justify excusing you from it.

montana
07-04-2010, 16:08 PM
l get ya Jeff. Not even *special bleeding* would help us it seems.
Still all seems so terribly unfair in our circumstances.
We try to remain positive though.

cheers

montana
09-09-2011, 19:53 PM
Our current Landlord is in receivership and owes us a substantial sum of money.
The Landlord is a LTD company incoporated in Gibralta.
We have a Management agents address for notice of services... and strangly also the receivers address on some documentation for notice of services.
My question is.... can we issue county court proceedings here in England to attempt to get back our money... or do we have to issue proceedings all the way in Gibralta?
Note: we checked company house and no accounts were ever registered/given to company house regarding the LL's LTD company.... and this after trading for more than 2 yrs before he went into receivership.... is this odd ?

westminster
09-09-2011, 20:06 PM
Under the Civil Procedure Rules (Part 6.8) "in any claim by a tenant against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 1987".

montana
09-09-2011, 21:49 PM
thanks westminster,
Thats exactly how l read it also, however....
Our Solicitor states that.... *should we wish to issue court proceedings against the LL, these will have to be issued on the LL's registered address in Gibralta, and we would need to obtain permission from the court for service outside of the juristiction of the English and Welsh courts.*
This is all leaving me even more confused. Who is correct??

westminster
10-09-2011, 16:40 PM
Refer the solicitor to Part 6 of the Civil Procedure Rules - in particular, rule 6.8, 6.7 and 6.9(1) and tell us what he says.

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part06.htm

It's possible that he's going by rule 6.9(2) but this doesn't apply if rule 6.8 applies.

You mention s.48 in the thread title and say "We have a Management agents address for notice of services"; if this address was specifically provided under s.48 then rule 6.8 definitely applies.

montana
10-09-2011, 18:20 PM
sorry mate l'm lost.
I don't understand what our solicitor is saying.
I thought the whole idea of these laws was to protect tenants here having to go to some dodgy tax haven state/country outside of England and Wales to issue court proceedings against your LL at costs that would be well beyond us.

westminster
10-09-2011, 19:04 PM
As I said, ask the solicitor to look at civil procedure rules rule 6.8, 6.7 and 6.9(1).

The rules say that if you've been given an address, under s.48 LTA1987, for the service of notices, then you can (and possibly should) serve the claim at that address.

So - have you or have you not been given an address, under s.48, for the service of notices? Knowing the managing agent's address is not the same as having been given it, under s.48, by the LL, for the service of notices.

montana
10-09-2011, 21:30 PM
yes Westminster. We have the managing agents down on the rental demands invoice everymonth in the box which says *Address for Notices* and in the other box is the LPA receivers address.
So we thought it was just plain English looking at the 48 & 49 act to just serve court proceedings on that address for services but....... our solicitor is saying we must serve papers in Gibralta. Has he got this wrong you think ???

westminster
10-09-2011, 22:02 PM
but....... our solicitor is saying we must serve papers in Gibralta. Has he got this wrong you think ???
It's possible he's got it wrong (solicitors aren't always right). Refer him to the CPR rules as previously advised in posts #4 and #6. See what he says then.

mariner
11-09-2011, 00:47 AM
Solic prob confused.
AIUI if you are suing Ltd Co as a creditor for a debt unrelated to Tenancy then Solic prob correct. If the debt is related to property lease or rental then westminster is likely correct.
Are we talking business lease or residential property?
Why are you talking to MA and not receivers?
If he is filing for bancruptcy, is there any point in sueing?
You will just be added to a long? list of creditors.

montana
11-09-2011, 09:46 AM
The LPA receivers have written and told us its nothing to do with them as the debt was owed before they took over as receivers. Thet have told us not to contact them again over this matter or they will pursue claiming costs from us in dealing with this matter. They said only contact us again if we should get a judgement from court on this issue. The receiver told us there are no *surplus funds* in the receivership to allow a repayment to us. We checked with company house and this LL's LTD company never ever submitted accounts in over 2 yrs trading before it then went into receivership.... so how can they LPA receivers say there are no funds when there arnt even any accounts submitted [ by the way is this legal can we cause some crap for the LL for not submitting accounts? ]
The LPA receiver also went onto say * For the avoidence of doubt, we also point out that the LL's company is registered in Gibralta and you will therefore pressumably need to arrange for service out of jurisdiction in order to pursue proceedings against them. (this goes against section 48,49 l think... so therefore are lying trying to fob us off? maybe to scare us off initiating court proceedings?)
Mariner.... yes the debt is related to our tenency

Lawcruncher
11-09-2011, 11:22 AM
On the one hand you say that the company is in receivership whilst on the other you refer to LPA receivers. Receivership under the Insolvency Act 1986 and the appointment of a receiver under the LPA 1925 are two different things. An LPA receiver's powers do not extend to managing the company's affairs, but are restricted to the subject matter of the mortgage.

A quick look at the Insolvency Act 1986 suggests that the English courts do not have any jurisdiction concerning the insolvency of foreign companies*, though that does not stop them hearing cases in which foreign companies are involved. If the contract is made in England or Wales and relates to property in England or Wales then I do not think there is any doubt that you can institute proceedings in England or Wales; the only possible exception (hardly likely to apply to tenancies) is if the contract contains a declaration to the effect that the parties submit to the jurisdiction of a foreign court.

You do need to bear in mind that whilst you may get judgement in an English court enforcing it is a different matter and that is where you may need to involve a Gibraltar court. Apart from that, you need to consider whether it is worth pursuing a company with no assets.

*However see section 426 (http://www.legislation.gov.uk/ukpga/1986/45/section/426) of the Insolvency Act. It is possible that Gibraltar has been designated under subsection (11)(b).

montana
11-09-2011, 12:53 PM
Thanks Lawcruncher,
What l meant to say is the LL's LTD compaany has had LPA receivers appointed to it.
I really thought the whole idea of the 48,49 Act was to provide protection to tenants so they didnt have to file proceedings in timbukto lands so to speak. Our aim is to obtain a judgement for the debt owed and then have a money order placed on the property so forcing a sale. Do you think this is feasible?

Lawcruncher
11-09-2011, 13:20 PM
The right to sue foreign companies and individuals resident abroad exists anyway. The purpose of section 48 is rather to ensure that a tenant has an address for service wherever the landlord is based.

If you obtain judgement you can apply to the court for a charging order on property. A charging order, unlike a legal mortgage, does not carry with it an automatic power of sale. In order to sell you have to apply to the court for an order. Such orders are rarely made. A charging order should therefore be regarded as doing no more than ensuring that, subject to there being sufficient equity, you will get paid when the property is sold.

westminster
11-09-2011, 13:25 PM
A charging order will not force the sale of the property; it just means that if the property is sold, your charge would be paid from the proceeds of the sale. However, if there is a mortgage on the property, the lender would be paid before you.

montana
11-09-2011, 14:10 PM
Thanks alot Lawcruncher & Westminster for the info.
It may really help.
Its a large sum of money the LL owes us so on principle at least we want to try and issue court proceedings here in England to see if we can get a judgement at least. Then have the charging order put on the property.
The LL has admitted owing the money to us so we can't see how they'd argue againt this in court.... it all comes down to whether or not we can do it all here in English courts.... Looking at what Lawcruncher has said... that looks maybe likely we can.... so will have to speak to the solicitor about exactly what he means by him saying we have to issue proceedings in Gibralta... as to me this doesnt seem correct.

westminster
11-09-2011, 14:34 PM
so will have to speak to the solicitor about exactly what he means by him saying we have to issue proceedings in Gibralta... as to me this doesnt seem correct.
Yes! Speak to the solicitor. It doesn't matter what 'seems correct', what's relevant is what the civil procedure rules say. I've told you which rules to ask the solicitor about - make a note of them and speak to the solicitor.

montana
11-09-2011, 15:38 PM
cheers Westminster,
Will do.... thanks again for your info on this matter. I'll keep you guys posted on what he says.
What do you make of the LL never submitting any accounts to campany hse regarding this LTD company? Someone told me this was illegal.... would we be able to gain any leaverage out of this knowledge do you think ?
As a creditor well down the foodchain compared to the mortgage company being owed money by the LL... Can we make the LPA receiver divuldge any info to us regarding no accounts ever being submitted to company house?

montana
19-10-2011, 10:39 AM
Hello Folks,
Some of you might remmeber this matter from previous posts.
We have tried all avenue's to get back a substantial amount of over paid rent owed to us from our current LL's over the past yrs, more than 35K...... As the LL is a limited company and in recievership with an LPA Receiver [LL big player] we are limited as a *general creditor* regarding us claiming back owed moneis from them.
We have been advised that we can though make life awkward for the LL and possibly eventually getting back our owed money by issueing CC proceedings and getting a judgement for the debt owed. Then we are told a *Money Order* would simply be placed on the property forcing the LPA Reciever to offset the amount owed to us if and when a sale of our building went ahead.
What we need is someone to help us prepare the paperwork for us to send to the CC. The debt is not argued by the LL. They have accepted that they owe us the money but maintain that they have no surplus funds to pay us. This is extremely frustrating as they are spending money on refurbishing flats next door to us and also recieiving more than 170K per yr currently in rents on our buliding from other tenants. The LL's company has now been in recievership for more than 2 yrs.
If there is anyone here willing to help and advise us with preparing the paperwork for the CC we would be happy to agree to pay them a very generous sum on a no win no fee basis.


yours gratefully

Montana

Snorkerz
19-10-2011, 11:53 AM
Are you aware of the costs of taking this to court?

If it requires a hearing it will cost you a minimum of £1115 (fast track) or £1660 (multi track).

westminster
19-10-2011, 11:55 AM
A barrister is the person best qualified to plead a claim, and nowadays members of the public can instruct [some of] them direct. You can find one via this link:

http://www.barcouncil.org.uk/about/find-a-barrister/public-access-directory/

montana
19-10-2011, 18:35 PM
thanks westminster ans Snorkerz,
We are now getting income support so would we be able to do it ourselves for free in the county court?
Its a debt owed to us which is not argued by the LL.
We understand that we then hopefully get a Judgement from the court and get a Money order placed on the property. Does this seem correct???
Then we understand when the LPA Reciever finally sells the property the new owners or LPA Recievers would be bound to pay that money order to us as an agreement of the purchase.
Does this sound right?
Would we really need a Barrister for obtaining a judgement from the county court over a clear debt owed to us by the LL?
The LPA Receivers have warned us not to contact them again over this matter until we recieve a Judgement. They say that it is only then that they would become involved in this matter and that its upto us to whether or not we issue proceedings against the LL. They say should we contact them again without a judgement that they will seek to charge us for any costs involved in further dealings with this matter.
It makes our blood boil really.
The LL's limited company we found out had never even provided accounts to campany's house for over the 2 yrs it was trading... how can these LPA recievers on that basis tell us * there are no surplus funds in the receivership* to pay the money owed to us in overpayments of our rent.

westminster
19-10-2011, 19:05 PM
We are now getting income support so would we be able to do it ourselves for free in the county court?
Its a debt owed to us which is not argued by the LL.
We understand that we then hopefully get a Judgement from the court and get a Money order placed on the property. Does this seem correct???
Then we understand when the LPA Reciever finally sells the property the new owners or LPA Recievers would be bound to pay that money order to us as an agreement of the purchase.
Does this sound right?
Would we really need a Barrister for obtaining a judgement from the county court over a clear debt owed to us by the LL?


Judging by your previous threads, for example this one (http://www.landlordzone.co.uk/forums/showthread.php?27259-Over-payment-of-rent), it's not necessarily the case that the LL owes you the money you are claiming, and the claim is not at all straightforward. I wouldn't count on the LL admitting the claim.

In addition to the above, there are other complications, e.g. this thread (http://www.landlordzone.co.uk/forums/showthread.php?41287-section-48-49-question). I would seriously question your ability to pursue this as a litigant-in-person, even if you could get the court fees reduced due to being on income support. Yes, I think you need a barrister to have any hope of winning this. It's not a 'clear debt', as you claim.

If and when you obtained a CCJ against the LL, you could apply to put a charge on the property. If the property were to be sold, the mortgage lender would be paid from the proceeds before your charge. If the proceeds of the sale didn't cover both debts then you wouldn't be paid.

montana
19-10-2011, 22:00 PM
Thanks Westminster,

The LPA receiver admitted that the LL did infact owe us the money in overpayment of rent [solicitors letter from LL also accepted they owed us the money] and stated that they had the power to recordmend that this overpayment be diducted from future rents. We stated that this was not acceptable and that would take yrs to pay us back and that it was our right to demand the money they owed us immediately. This is the very same LL I might add that at every opporunity in the past it thought he had to evict us through none payment of rent he tried to do at the first instance on every occasion.... all ilegally l must point out.... as we are still living here and now fully protected tenants.
Westminster..... if the LL's ltd company is mortaged to the hilt then is there any benefit at all then in even trying to obtain a judgement and then a money order??? I thought this debt would be paid directly to us if and when the sale of the property took place.... it sounds like l thought wrong... and why then in that case is our solicitor advising that we even go down that road?
We have repeatidly also requested an updated account from the managing agents of our in credit rent account.... they have failed to reply to our requests for this info... can we report them to any tenancy managing agents body over this? surely they have to provide this info to us by law.
They are a very big managing agents and they fully know the law we are sure of that... its just a game to them to waste more time and hope we give up like we did so many times in the past over issue's to do with our home.... but this time we want to at least try and not be pee'd on again by them. If we can do the county court thing for free due to our income support statue now we'd like to at least give it a go. And as they LL and LPA reciever have admitted and accepted that LL owes the debt would we really need a barrister for this?

mariner
20-10-2011, 01:01 AM
Montana, forget absence of filed Company accounts, can't see how this can benefit you, to me it indicates C had problems from start.
As you state, you are a general creditor not a 'preferred' creditor. First in line will be Gib Revenue then mortgage Co, with luck you may appear on p2. The Receiver is still operating the Co for benefit priority creditors. They well sell your property at a price unable to clear the mortgage, so your charge on the property would not be paid in part or full.
Whilst there may be legislation allowing you to reclaim previous overpayments of rent, I am assuming your overpayment calc is based on the determined Fair Rent. IME Fair rent only applies from date it was registered, not before. So if Court ordered fair rent applied from 1 Jan 2011, IMO you can only claim for overpayment from that date. If the Court decided your whole T was governed by Rent Act - fair enough.
If you recoup anywhere near £37K I would hope your Court costs and subs benefits are calculated as for anyone with that level of savings.

montana
20-10-2011, 14:13 PM
thanks mariner and others,
its all getting clearer now thanks.
We have been judged to be rent act tenants since moving into our home in mid 80's
Our rent was lowered substanitally about 1 yr ago by the rent officer. And to offset future rents from the debt owed to us by the LL the recievers are simply not requesting rent from us now. We shall remain not having to pay rent for 8-9 yrs at the rent figure now set.
Can we get some kind of agreement fro tne recievers whereby if and when they do offload/sell our building we wouldnt lose that substanital in credit of rent status? Or arnt we legally entiltled to do this?
The managing agents have refused to give us our monthly rental invoice ever since we proved were rent act tenants... don't they have to provide these monthly rental demands by law? as they always sent them to us before that. surely we are entitled so see by how much credit we are in on rental statements/invoices everyone.
how can we put pressure on the LL/ managing agent to provide us with this paperwork?