help please - applying to courts for possession of property

saidan

hi all
i posted some time back re section 21.....

my solicitor sorted this out and it ran out in april - tenant refusing to leave so no choice but to go to court.

solicitor off sick for a week so waited till she was back in work.
last week she kept saying i am contact tenant's legal aid people (not sure why though)
today she has said she cannot issue possession procedings as it is too specialised! so i am no further on than 2 weeks ago when the section 21 was up.

so can you help me to fill in the form to submit to court?

i have this one: n5b Claim form for possession of property (accelerated procedure) (assured shorthold tenancy).

page 1 - it asks for court fee's, solicitor fee's - total cost...........do i fill that bit in?

page 2 - what is a demoted tenancy?

this is so confusing :eek:

thanks for any help!

ann

HB58

I'm sorry, I don't have the knowledge to help with your query.

However, in your position I would check very carefully to ensure that the S21 was correctly completed and served as it sounds as if your solicitor is not really up to the job!

BitterAndTwisted

Too specialised? Now why didn't she warn you she wasn't competent to see you through this to the end? And who do you think has the resources and contacts to introduce you to someone who is?

Now, if you were a member of a landlords association you would have access to this sort of advice as one of the benefits of membership.

jjlandlord

BitterAndTwisted wrote: »

Now, if you were a member of a landlords association you would have access to this sort of advice as one of the benefits of membership.

Unless you get a commission, OP could also ask for help on a specialised forum, free of charge

BitterAndTwisted

I wish I was on commission.

Still, asking on a forum risks you getting erroneous and misleading answers from numpties who know nowt as well as the sensible and correct ones. How would one know the difference?

paddy's_mum

I do hope that she, or her firm, are not about to invoice you for her 'work'!

jjlandlord

BitterAndTwisted wrote: »

Still, asking on a forum risks you getting erroneous and misleading answers from numpties who know nowt as well as the sensible and correct ones. How would one know the difference?

Are you sure you're not on commission?

OP: If you ask on landlordzone I'm sure you'll get good advice not from numpties!

In the meantime:

page 1 - it asks for court fee's, solicitor fee's - total cost...........do i fill that bit in?

If you do it yourself, solicitor's fee are obviously 0.
court fees are £175.

see: http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/ex050-eng.pdf

page 2 - what is a demoted tenancy?

If you ask, it means yours is not...
Or you could have googled it: http://england.shelter.org.uk/get_advice/renting_and_leasehold/housing_association_tenancies/demoted_tenancies

saidan

thank you all

i spent the afternoon on google and completed the form - once i got going it was not as scary as first seemed

yes - the solicitor has charged me - £180
1. for sending the section 21 - though she does not have proof of postage :eek:
2. faxing the 'law centre' twice

so i have got the copy of the section 21 to attach to the form - but where it says (and proof of service marked C1) I cannot proove it was sent....

obviously tenant recieved it as the 'law centre' contacted my solicitor regarding it, but I cannot proove the tenant received it - so what do i do about that bit?

i have got everything else done correctly i think

can the judge order that the tenant has to pay solicitor costs? - i read on landlordzone (i think) that the tenant doesn't pay those costs - just the court costs. i have ticked the box that asks judge to order the defendant 'to pay the costs of this claim'

also - number 9 - if tenant seeks postponement due to exceptional circs (which i know she will as claiming she is mentally ill) do i want it considered without a hearing?
I have no idea - i guess if i ask for a hearing that means more time to wait but i get to argue she does not have exceptional circs,
if i do let it be considered without a hearing the judge could believe her sob-story and give her up to 42 days to move out ..............on top of all the time she's already had
not sure which would be better - any opinions?

thank you.

ann

jjlandlord

If you cannot prove the notice was served, unless your tenant is kind enough to admit to have received it in time, I would not waste time and £175 starting court proceedings...

Personally I would refuse to pay the bill of a 'solicitor' who so incompetently serves notice without getting proof of service.

There might be a reason behind her trying so hard to ditch you...

Regarding solicitor's fees: I believe that those are capped in an accelerated procedure. Obviously it does not hurt listing them as you won't get if you won't ask...

GDB2222

what do you mean by proof of posting? A solicitor produces a document and send it by post. I am sure that the solicitor or her secretary can provide a witness statement that the document was posted, and when. I am 100% certain that the court will accept this. All these civil cases are decided by the courts on the balance of probabilities, so the court merely has to decide that it is more likely than not that an independent solicitor is telling the truth about posting the document.

teeni

GDB2222 wrote: »

what do you mean by proof of posting? A solicitor produces a document and send it by post. I am sure that the solicitor or her secretary can provide a witness statement that the document was posted, and when. I am 100% certain that the court will accept this. All these civil cases are decided by the courts on the balance of probabilities, so the court merely has to decide that it is more likely than not that an independent solicitor is telling the truth about posting the document.

I agree the court would accept 100 per sent the notice was posted but what has that got to do with it being received.

Whilst this confirms proof it was posted it does not prove what date the tenant recieved it if at all. so all the witness statements in the world are irrelevant, unless they state that it was hand delivered to the property.

Law of propery act 1925(196) (5) says notice is deemed as served if posted by registered or recorded delivery and not returned as un delivered.
Ordinary post does not prove delivery and if the tenant denies receipt the case could go to contested trial ( more costs)

without proof of postage I would re issue the notice rather than risk the issue being defended at court and the costs being awarded against you.

Can you contact the tenants solicitor yourself to see whether they will challenge any application to court for possession and if so on what basis at least you know then what you are dealing with.

Oh and if it goes to a hearing it will delay the time before the p/o is granted, up to you whether you want to risk it.