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qwad4x4
06-12-2011, 21:07 PM
Good evening.

we've been in this property (new flat) for just over 3yrs. The place is kept immaculate, we're very proud, responsible tenants and have never missed a payment.

The LL is a bit of a chancer, doesnt do anything and hasnt even had the gas boiler checked since we've been here. I have just fired off a registered letter to him - demanding that he does this in the next 10days, else I will have it done and he can pick up the tab.. dont want to be caught without heating like we were last winter

we just received some bad news - that the LL hasnt been paying his mortgage. we were visited by a debt management company yesterday to ascertain that the property is occupied. I have been advised that unless the LL complies within next 10 days - they will be contacting the courts to ask to take possession of the property. First thoughts were that we have about 60 days to find somewhere new. Not exactly good timing for us - christmas and all..

I did a Land registry search and found that our assured shorthold agreement 'predates the mortgage'... and as such - we may have reasonable grounds for opposing the repo.

I dont expect that anything will actually begin to happen before the new year and the LL might get his act together and catch up with the missing payments??

However I've just discovered the Tenancy Deposit Scheme ruling that the LL must have secured our bond within 14 days. I phoned each of the schemes this morning and yes - you guessed - he hasnt done this, NOT in 3 years.

I spoke with 'Shelter' and they've been brilliant, they told me about the x3 compensation rule and advised that there have been some recent cases where these x3 claims have been defended by the LL's and that some recent rulings have totally favoured the LL.

I'm tempted to gather everything together and prepare to submit a small claims court claim for our deposit back (£700) plus x3 plus interest plus costs AND to submit this the day AFTER we receive a notice from the LL's lender. I cant leave it too long else the wolves might soon be at his door and he might declare himself bankrupt and avoid paying anyone. He does have a lot of properties and a very big house, cars, etc - not that proves that he has any assets of course.

The grounds of our claim being that the LL has failed to give us the privacy that we are entitled to and has defaulted on our agreement - therefore we require our deposit back and a x3 claim for non compliance with section 214, etc. we have a lot of proof that he is negligent and he has tried many times to avoid any costs (such as trying to tell me that I must pay for the annual boiler check) and this negligence is typical for the man and these facts would help us to uphold our x3 claim.

then to sit tight and oppose the possession and possibly take a small tenancy agreement with the lender? dunno? It does spoil things when it goes sour like this.. why is it that the innocent ppl always end up suffering?

I cant get legal aid but dont earn enough to pay a solicitor.

blooming nightmare, please can anyone help

best regards, R and T

Paul_f
06-12-2011, 21:40 PM
You won't be able to prevent eviction by anyone who has a charge against the premises, so you should contact the lenders who are shown on the Land Registry.

You might be able to stay in the property if you agree to pay your rent directly to them - make a proposal. There might however be more than one charge and you need to know which one it is who has instigated proceedings. You might want to talk to your local Housing Officer about your situation.

With regard to the 3x deposit compensation, yes you might well be awarded it, but if your landlord is penniless do you think it is worth it?

Do not pay anymore rent directly to your landlord but negotiate with the lender.

The Gas Safety Certificate is paramount and you are right to address this, and deduct the cost from the rent.

Lots of other posts on this subject, so use the search facility.

bhaal
06-12-2011, 23:04 PM
You won't be able to prevent eviction by anyone who has a charge against the premises, so you should contact the lenders who are shown on the Land Registry.



This is not correct. Usually the rule is that a registered interest in land will take precedence over an unregistered one, such as your tenancy, this is stated in section 30 of the Act:

http://www.legislation.gov.uk/ukpga/2002/9/section/30

However, as you can see, a registered charge will not gain priority if an interest is 'protected' and one way in which this protection can happen is if the interest is one of those listed in Schedule 3 of the Land Registration Act 2002:

http://www.legislation.gov.uk/ukpga/2002/9/schedule/3

Paragraph 1 of Schedule 3 covers tenancies which cannot be registered and are not required to be registered, such as an AST. Paragraph 2 covers the interests of people in 'actual occupation' which would include a tenant living in a property as their home. Coming under the description of either paragraph will be enough to defeat the mortgage company's interest assuming that their charge really was made after the date of your tenancy. It will obviously help if you have a signed and dated tenancy agreement to prove this. Some other evidence, such as registering on the electoral roll at the time you moved in would also help.

If that argument should fail for some reason you can use the Mortgage Repossessions (Protection of Tenants etc) Act 2010 to gain a two month stay of execution of the mortgage company's possession order. The full text of the Act (it's only a few pages long) is here:

http://www.legislation.gov.uk/ukpga/2010/19/pdfs/ukpga_20100019_en.pdf

qwad4x4
07-12-2011, 11:00 AM
thank you for the replies, whilst they conflict they do support our general thoughts.

We have clear evidence that the AST predates the lenders mortgage and understand that that will provide us the ability to apply to adjoin the proceedings and oppose the repo on the grounds that the tenancy is binding on the lender.

The facts are that these proceedings have not commenced yet, but it is my understanding that the LL does not have long to comply with the Lender. We believe that an application will be made by the lender shortly after christmas.

My concerns are really about the bond, which should have been secured in 14 days but hasnt been secured after 3 years. I have no reason to believe that it will be secured or that the LL has any intention of repaying this to us, therefore my desire to go through a small claims process.

My question is: given the cavalier attitude by the LL, in relation to the bond, the requirements for annual boiler checks etc, would this and the pending threat of foreclosure by the lender favour the possibilities of my wife and I successfully winning a x3 compensation claim against the LL? Recent cases have appeared to favour the LL but I think that in this instance there is significant evidence of the LLs inability to comply with his obligations/requirements/the law and that a judge might award in our favour.

Yes, I understand that there is some risk to this, given the obvious financial plight of the LL, and perhaps timing is of the essence here?

any advice would be very gratefully received.

thank you

Mrs Mug
07-12-2011, 11:16 AM
My question is: given the cavalier attitude by the LL, in relation to the bond, the requirements for annual boiler checks etc, would this and the pending threat of foreclosure by the lender favour the possibilities of my wife and I successfully winning a x3 compensation claim against the LL?

If you just want the return of your deposit, you can use the small claims court. But if you want the 3x penalty as well, that is not heard in the small claims court. Please read the link below, so that you fully understand the costs associated with such a claim.

http://tenancyanswers.ucoz.com/index/my_deposit_isn_t_protected/0-4

mariner
07-12-2011, 11:21 AM
"The grounds of our claim being that the LL has failed to give us the privacy that we are entitled to"

In what way? From what you say LL does not appear to be proactive, bothering you with repairs and stat inspections.

It is poss 3x deposit claim cannot be made via SCC track so much higher Court fees to start and risk of other side's full defence costs if you lose. It is prob that LL will evade penalty by protecting deposit even on day of hearing.
Stat GSC checks safety only, it does not include a boiler service. LL s resp for annual GSC and providing a working boiler. No requirement for a regular service.
If property is reposessed by lender, it would be unusual for lender to offer you a T. They will want their capital back asap, best achieved with vacant possession and sale by auction. They may sell with sitting T so new owner becomes your LL.

qwad4x4
07-12-2011, 11:32 AM
If you just want the return of your deposit, you can use the small claims court. But if you want the 3x penalty as well, that is not heard in the small claims court. Please read the link below, so that you fully understand the costs associated with such a claim.

http://tenancyanswers.ucoz.com/index/my_deposit_isn_t_protected/0-4

thank you - that is very helpful

qwad4x4
07-12-2011, 11:37 AM
"The grounds of our claim being that the LL has failed to give us the privacy that we are entitled to"

In what way?

I think that visits from debt management consultants as a result of LLs failure to pay his mortgage would be agreed to be a breach of our privacy.

Mrs Mug
07-12-2011, 11:44 AM
I think that visits from debt management consultants as a result of LLs failure to pay his mortgage would be agreed to be a breach of our privacy.

You are claiming for the return of your deposit, this has no relevance to that claim.

MrJohnnyB
07-12-2011, 12:47 PM
I think that visits from debt management consultants as a result of LLs failure to pay his mortgage would be agreed to be a breach of our privacy.

I think you're mistaken. The actions are that of a third party and not that of the landlord.