Possession Proceedings & Counterclaim help please

brightonbelle62 · 31 January 2009 at 4:46PM

Hi, I need to pick the brains of any of you who know about housing law - its a bit long but please stick with it;)

I have a council property with ongoing disrepair - damp (real damp not condensation), drain problems, sewer problems, etc etc and have now been in dispute with them for almost a year. Have got to the first stage of complaints and no further. I have fully documented everything and have photos etc.

During this year for various reasons which I won't go into here I got into financial difficulties. As a result I was declared bankrupt on 14/11 - from this, my bank accounts were frozen and I had to apply for a basic account and put my CB payments on hold. I had an overpayment from TC which went into the bankruptcy so I didn't have that income. I then made a fresh claim for TC which still hasn't been paid - in fact, I have now received a letter stating my claim has gone to the compliance team which means I won't receive any money for a while. I was ok financially over Christmas as my business is retail - I had enough for the basics anyway bearing in mind I have a family to keep.

I have no entitlement to HB and CTB as TC and CB are assumed to be in payment even when they aren't. So, my rent arrears have been going up and the council have now issued me with a court date for possession of my property. This is despite me going to my local MP to ask him to help me with the repairs issue and the benefits payments. He did fax the council asking them to not take any possession action until my financial situation is sorted out - I will have the money to pay the arrears but I just don't know when my TC will be paid.

Anyway, I will be defending my case in court on the basis that 1) I'm doing everything I can to resolve my financial situation and the hold up is with the Tax Credits/Child benefit system 2) They have been fully informed every step of the way about what I'm doing to have my entitlement put in payment 3) the arrears amount isn't correct as some of this would have gone into my bankruptcy. Obviously I'm aware that the status of my tenancy will be affected if I don't pay the full arrears (even those in the bankruptcy) but the fact remains that technically the portion of the arrears in the bankruptcy don't exist anymore.

I also want to submit a counterclaim for the disrepair in my property. How do I do this? Do I have to fill in a separate claim form with the court as well as tick the yes box on the council's claim form? Do I have to submit all my evidence and when/how? Will this cost me?

I've never submitted a counterclaim before so any pointers would be handy, thanks

whathavewedone · 31 January 2009 at 5:36PM

Go and see the CAB and take all the documents with you. They should be able to help you fill in the Defence and Counterclaim but they wil need to see all the documents it won't be enough for you to just tell your side of the story.

It might be worthwhile getting in touch with Shelter too.

brightonbelle62 · 31 January 2009 at 5:46PM

Thanks but I've already had basic advice from Shelter - unfortunately they can't take on my case under CLS as I can't give them proof of income (which is a requirement of CLS funding) I'm really in a catch 22 with this situation............ I do have experience of advice work though so just trying to get some pointers myself.

Ps the CAB couldn't help me as I can't get funding for a private survey on my property. Environmental health are part of the council so can't act against them. I would've been better off in housing association property!!

clutton_2 · 31 January 2009 at 5:46PM

when you sign a tenancy agreement you sign an agreement to pay the rent. the landlord signs the agreement and agrees to do repairs - but these repairs are a separate issue to rent. . both parties here seem to be in breach of their agreement.

where you get your funds to pay the rent is none of your LLs business i'm afraid. if you are more than 2 months in arrears the law is very clear, you can be evicted.

you can certainly put in a defence to the possession application - if you had been withholding rent due to lack of repairs, a judge may consider this a mitigating factor, but, i doubt very much if bankruptcy will even come into the equation.

as suggested already - contact shelter

good luck

brightonbelle62 · 31 January 2009 at 5:52PM

I haven't been withholding the rent - I don't have the funds to pay it. When my Tax credit is paid I will pay it straight to the rent account. At the moment friends are paying for food and utilities but I don't have any income for anything else. Bankruptcy comes into it as that is why all my income is on hold.......... I know my responsibilities and my LL's responsibilities I just need to know how to submit a counter claim............ please?

whathavewedone · 31 January 2009 at 7:13PM

Okay you need to go to the court where the claim has been issued from and speak to a clerk.

You do need to fill in a separate form to issue a counterclaim and you do have to pay a fee (can't remember how much offhand - I think it used to be £150 but may have gone up - the court will tell you). If the case goes to trial and you win you will get the money back.

The form is quite self explanatory. In the box where you set out your counterclaim try to keep it as brief as possible ie try to limit your points to a couple of lines and number each point as a separate paragraph. Do NOT try to tell the whole story from start to finish as your counterclaim will just read as a load of waffle and may be struck out on the basis that there is no case to answer.

While Shelter might not be able to help you to defend the claim I'm sure they can help you in other ways, eg liaise with the council in the event that you are made homeless.

Take as many photographs as you can of the disrepair if you haven't done so already. Keep all correspondence between yourself and the council in a safe place. You will need these things later on when the case goes to trial, assuming the possession order isn't granted.

Are you likely to be able to pay your rent in future/is there any way you can pay back the arrears? I think the judge will want to see your proposals when you go to court. It won't be a case of well the council has to repair the property but you don't have to worry about paying the rent (sorry if that sounds a bit patronising but you should be prepared for a grilling).

Good luck.

PayDay · 31 January 2009 at 9:03PM

If they are taking the tax credit overpayment off you in one go, can't you sit down and talk to them and ask if you can pay it off installments? That way you might get some tax credits soon.

PayDay · 31 January 2009 at 9:45PM

brightonbelle62 wrote: »

I have a council property with ongoing disrepair - damp (real damp not condensation), drain problems, sewer problems, etc etc and have now been in dispute with them for almost a year. Have got to the first stage of complaints and no further. I have fully documented everything and have photos etc.

I also want to submit a counterclaim for the disrepair in my property.

I have looked back over your posts and you have said that the council sent a surveyor to your house and he said that it wasn't damp. What evidence are you going to produce to prove that it is damp? A report from another surveyor?

clutton_2 · 1 February 2009 at 10:58AM

""I don't have the funds to pay it"" - unfair as you think all this is, and i do agree with you it is unfair, in law - the bottom line is you are not paying your rent and therefore you are witholding your rent and you can be evicted

silvercar · 1 February 2009 at 3:46PM

To claim that you withheld rent because of unsatisfactory housing, a judge will expect you to have kept the unpaid rent in an account. Ideally you need to show that you had the rent but chose not to pay it because no action was taken to resolve problems. To counter claim with no rent available weakens your arguement IMHO.