Advice / help neede for Small Claims Court claim / counterclaim

Marktheshark

You can add additional defence points :
No contract
No Tenancy agreement
No damage occurred
No inventory for property
Not an official landlord.

And i take it no gass certificates were obtained ?

His counter claim should fail IMO.
What I would have ready is a Statutory Demand :
https://www.gov.uk/statutory-demands/overview

If they lose the counter claim, serve it on him outside the court.
He can then pay his solicitor some more money to try and stop been made bankrupt.

Carlos0371

OK Mark, this statutory demand - would that be required if the Judge finds in my favour though?

I mean, when we go to Court, I assume the Judge will look at my claim (bearing in mind that a judgement has already been made in my favour) then look at his defence / counterclaim in mitigation, then decide whose claim is upheld?

If he decides in my favour, wouldn't an order to pay be made at that time anyway?

Laz123

Maybe I've got the story wrong but if a payment is made by mistake into an account not intended by the payee and the recipient keeps the money it is theft. That is what happens when a bank mistakenly puts X amount into someone's account and the recipient keeps the money. It's not a windfall, it's a mistake and the money does not belong to the recipient.

There was no tenancy contract between you and this person so as far as I can gather he does not have a leg to stand on. he thought he'd won the lottery and is fighting to keep it but if the law is not an !!! then you should have no problem.

Carlos0371

Yes theft, but the police do not want to know "It's a civil matter".

So when does theft become a police matter then??

wealdroam

Carlos0371 wrote: »

Yes theft, but the police do not want to know "It's a civil matter".

So when does theft become a police matter then??

From The Theft Act:

1 Basic definition of theft.

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

"dishonestly appropriates" is an interesting phrase.

I suggest your partner's ex-Landlord didn't "dishonestly appropriate" the money, instead was freely given the money.

unholyangel

wealdroam wrote: »

From The Theft Act:

"dishonestly appropriates" is an interesting phrase.

I suggest your partner's ex-Landlord didn't "dishonestly appropriate" the money, instead was freely given the money.

but then the definition of appropriate says:

3“Appropriates”.

(1)Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

Seems to follow the same sort of logic as sending goods to the wrong address....still belongs to the sender and recipient is under a statutory duty to take reasonable care etc. The "dishonest" part doesnt come from the original act, its when they refuse to return it to its rightful owner.

Of course thats muddied by the fact he's claiming its for monies owed from the tenancy.

Just saying that someone can be guilty of theft even if they do come by the property innocently in the first instance.

Marktheshark

Carlos0371 wrote: »

If he decides in my favour, wouldn't an order to pay be made at that time anyway?

Yes and often ignored leading to expensive bailiffs who might not get in as well.
A served statutory demand and if it is not paid file the form to have it set at court.
They get liquidated and you get paid usually.

Carlos0371

wealdroam wrote: »

.......was freely given the money.

.....in error, then refused to return it when the error was pointed out to him.

The theft issue is a different kettle of fish, I don't really want to go down the route of discussing that on here, as it won't get me anywhere with trying to get my money back, just looking for advice on my original post.

Thanks for your input though.

Carlos0371

Marktheshark wrote: »

Yes and often ignored leading to expensive bailiffs who might not get in as well.
A served statutory demand and if it is not paid file the form to have it set at court.
They get liquidated and you get paid usually.

Thanks Mark, will make a note of this for if / when we (eventually) get to that stage.

Carlos0371

unholyangel wrote: »

........Just saying that someone can be guilty of theft even if they do come by the property innocently in the first instance.

Just as I understand it. The theft has only occurred with his refusal to return money which he has been informed is not his.