Council seeking possession order

Running_Horse

In my experience of social housing, the courts will bend over backwards for someone who is genuinely tryng to pay what they owe. They will even bend over backwards for someone who strings them along with broken promises. So there is more to this than meets the eye. Again, I ask...

What is the current level of arrears?

I don't ask for the fun of it. I ask because it is relevant.

sefton

I had never heard of stamp duty being payable on rent but in the age of google I would have thought some of you would have searched "stamp duty land tax rent" before claiming I was lying/mistaken about what the judge had said. Surely that would be better than saying it is not when someone tells you a court says it is. In any event once the court says it is it's up to the council to prove it isn't.

Those of you who say the council would not take him back to court if he had kept up the agreement made with the housing officer are again ignoring my original question. Would the court see this as a malicious prosecution.

Yesterday he managed to get some legal advice from a proffessional and that advice was. As he has an agreement in wiriting from the council that they will take no further action on this matter if he pays his rent weekly plus £10 anything that went before should have no impact on a decision to go to court until such time that he breaks that agreement. The fact that he has steadfastly kept to the terms of this written agreement for months and and the councils own records do not dispute this fact, and he has made extra payments on a weekly basis is nothing but to his credit.

He has also been advised NOT to seek a meeting with the housing officer but just to seek clarification from both the housing officer and (pointedly) their line manager as to the reason the council are taking this action. The only communication between my cousin and the housing officer since they entered that agreement was the email asking about the court costs.


Part of the wording on the letter from the court is

"The claiment having failed to lodge stamped terms of agreement or evidence that stamp duty is not payable
IT IS ORDERED THAT
1. The order made on d/m/y be not drawn
2. It is declared that at 4.01pm on d/m/y the order dated d/m/y stood revoked
3. The action be adjourned generally and if no request in writing is recieved by the court for a new hearing by 4.01pm on d/m/y and the action do stand struck out automatically without further order"

No such request was recieved and it was confirmed that the case had indeed been struck out. Once again thanks for all your input.

sefton

Running_Horse wrote: »

In my experience of social housing, the courts will bend over backwards for someone who is genuinely tryng to pay what they owe. They will even bend over backwards for someone who strings them along with broken promises. So there is more to this than meets the eye. Again, I ask...

What is the current level of arrears?

I don't ask for the fun of it. I ask because it is relevant.

I do not earn mega bucks but his arrears are at such a level that I will be able to pay the balance when I get paid this month. They have reduced by 34% since he went to court.

princeofpounds

Stamp duty land tax is not payable on rent

Actually SDLT can be payable on rent, but only in situations where the present value of future rent payments is quite high. The purpose is to stop people disguising sales as rentals to avoid stamp duty.

But this has little to do with the case. From reading the extract provided it seems not to be the case that the council hasn't paid something that is owed, it just seems that the council forgot to submit the paperwork showing it was either paid or not due. Why this was required for the order I don't know, but seems your friend got lucky there. A simple admin error.

It's therefore possible that the council are going back to court to get the possession order back they were awarded in the first place pending documentation which they then failed to supply. But that's just a guess.

Mrs_Arcanum

As the OP stated the arrears were just over a thousand pounds. At £10 pw over and above his rent costs, a couple of years would have seen it paid off; not unreasonable. The council will have to go back to court to gain possession and the Judge would take a very dim view of them doing so in view of rent arrears which are being paid off (especially as it is at a faster rate than agreed). It sometimes takes around 3 failures in agreements before a judge will grant possession due to rent arrears (based on works Housing Officers experience).

Is the property a newly acquired one or an existing long term council property?

They might have been better off contacting the court rather than the council in the first place.

sefton

princeofpounds wrote: »

Actually SDLT can be payable on rent, but only in situations where the present value of future rent payments is quite high. The purpose is to stop people disguising sales as rentals to avoid stamp duty.

But this has little to do with the case. From reading the extract provided it seems not to be the case that the council hasn't paid something that is owed, it just seems that the council forgot to submit the paperwork showing it was either paid or not due. Why this was required for the order I don't know, but seems your friend got lucky there. A simple admin error.

It's therefore possible that the council are going back to court to get the possession order back they were awarded in the first place pending documentation which they then failed to supply. But that's just a guess.

I'm not very good at this am I. I read my post back before I hit submit and it seems to make sense to me but clearly not to you guys.

There was a sum of money to be paid and the council have admitted that they have not paid it.

"evidence that stamp duty is not payable" would seem to me to be bog standard.

princeofpounds

sefton wrote: »

I'm not very good at this am I. I read my post back before I hit submit and it seems to make sense to me but clearly not to you guys.

There was a sum of money to be paid and the council have admitted that they have not paid it.

"evidence that stamp duty is not payable" would seem to me to be bog standard.

No your post isn't very clear. You haven't actually been specific about what 'stamp' was or what it was for. There is information there but it's not very explanatory.

As you can see from the resulting replies most people aren't even aware that stamp duty can apply to rentals. I just happened to be because I came across it once in researching a different issue.

Even now I am not entirely sure if this is the same 'stamp duty' you and the court order talks about, nor why proof of it would ever be required for a possession order.

And it is not the case that the money has not been paid. The court order makes it clear it might not even be due at all, but proof of exemption is needed. And this money would presumably not go to the tenant, in fact it has very little to do with him, assuming it is SDLT.

Anyway, will google around on the issue.

princeofpounds

OK here is something...

Prior to 1 December 2003 a tenancy agreement was a stampable document and
should have been sent or taken to the Stamp Office for stamping in order for it to
have validity if it was subsequently used in court.
Stamp Duty Land Tax (SDLT) was introduced on 1 December 2003 to replace
Stamp Duty. Details are in the HM Revenue and Customs leaflet: A guide to
leases. This is available at www.hmrc.gov.uk, or by Orderline 0845 302 1472.
You can also ask for more advice about Stamp Duty Land Tax (SDLT) by ringing the
HM Revenue and Customs Helpline

on 0845 603 0135.

Your friend escaped on a technicality. The council probably never sent it for stamping (there might not be any actual duty money involved) and so the tenancy wasn't usable in the court. So maybe they have now done so and are working to get the possession order again based on the still-existing arrears. This might not have anything to do with him querying the debts but them trying to correct their own mistake, as with a possession order they are more powerful in forcing him to settle his account (or even quit).

Mind you, if there is a plan in place I wouldn't think it was a sure thing for them to win another order.

DVardysShadow

sefton wrote: »

Those of you who say the council would not take him back to court if he had kept up the agreement made with the housing officer are again ignoring my original question. Would the court see this as a malicious prosecution.

No, the court would even see it as a prosecution, because this is not a criminal case and the court is not a criminal court. They might see it as vexatious litigation, but on the whole, all that has happened is that the case was struck out on a technicality and at the time of striking out, the court was fully cognisant of the possibility that the council had a case worth hearing and the possibility of resolving their technical breach.

Now it may be that the facts of the case are such that the court decides that a new order is granted, based purely on the level of the arrears. The fact that the arrears are going down should not make a difference to the court's decision. Suppose another person has exactly the same amount of arrears, but those arrears are going up rather than down. Should your friend and this person not be treated in exactly the same way? And a possession order be granted or not on the same criteria?

That would be a court perspective. An everyday perspective would be that the council are wasting the taxpayer's money and the court's time on chasing arrears which are being paid. The court will have no sympathy for this view in terms of making a judgement. But they might be inclined to take it on board over the question of costs, if this is argued carefully.

Behind all of this there sits a council employee with egg on his face for having lost such a surefire case on such a trivial mistake. I think that this employee is out to even the score. If the mistake has not had publicity so far, then the threat of it if they still seek possession may be enough to cause a rethink - but tread very carefully.

sefton

@DVardysShadow

Thank you for your explanation of "vexatious litigation".

Now it may be that the facts of the case are such that the court decides that a new order is granted, based purely on the level of the arrears. The fact that the arrears are going down should not make a difference to the court's decision. Suppose another person has exactly the same amount of arrears, but those arrears are going up rather than down. Should your friend and this person not be treated in exactly the same way? And a possession order be granted or not on the same criteria?

I have never been to court and hope never to do so but I believe the level of arrears to be irrelevant. I would have thought the court would say to the council You have an agreement in place with this tennant not to take further action should he keep up with the payments. He has clearly kept to this agreement. Why are we here ?


Where am I going wrong with this