Rent overpayment and errors in making a claim

calcris

I would like your advice regarding early surrender of tenancy & rent refund by the landlord for rent paid in advance. This is a case of rent overpayment. 

The main points are-

1. The landlord asked us to vacate the property 3 weeks before the tenancy agreement ended. This was communicated via text messages from the landlord followed by a phone call, emails and a recorded delivery letter from the estate agents. 
2. My partner and I had paid the rent for 12 months in advance at the beginning of the year. 
3. Before we agreed to vacate the property early, the landlord agreed to refund the overpayment via text message to my partners phone.
4. We vacated the flat and asked the agency to refund deposit and rent. The deposit was returned but the rent was not.
5. Over the next month, the estate agency and my partner sent several emails, text message and made calls to the landlord about the rent refund. No response was received. The estate agent sent another email requesting the refund and attached the previous emails. She also informed the landlord that no response would result in us taking further action.
6. The real estate agency then advised my partner to contact Citizens Advice which advised to make a claim via moneyclaims.com.
7. My partner made a claim without understanding correct legal procedure .            a) He neglected to send letter before action. (Instead he sent an email to the landlord’s property manager as he had received no response from the landlord.) b) he did not add my name as claimant because the claim form said ‘claimant’ not ‘claimants’. c) he did not specify some details e.g. address of property.

 

We’ve now received a defence and counterclaim for court expenses and a rather intimidating and threatening letter from the landlord’s solicitor to stop pursuing the funds.

The defence has used the mistakes made in the claim (point 7) and has further stated that no written agreement was made to refund rent or surrender tenancy. 

The estate agent has confirmed that under the circumstances, the rent refund is an implied right and no written or signed agreement is required. So the landlord has denied that he agreed to the refund and wants us to pay court expenses instead. 

We only want what’s rightfully ours.

It also states that we made no attempt to contact him about the refund. This is not true and we have all the supporting communication as evidence.

It implies that we had discussed a surrender date but nothing had been confirmed and no communication received till after we vacated the property. The estate agent has confirmed that they followed landlords instructions to issue section 21 and didn’t act on their own.

Should we carry on in spite of the errors in the claim?

I was wondering if it would be a better idea for me to make a separate claim following the correct procedure i.e.letter before action.

Since I was a separate legal tenant I could perhaps salvage this matter by starting all over again? 

If we continue with my partners claim will be penalised in any way? What are the risks? Could the errors in the claim result in the judge awarding us less money, dismissing the claim or asking us to pay expenses?

I contacted a solicitor online and was advised to carry on as we had a strong case and we’re well within our legal rights. He said the landlord’s defence is aimed at dissuading us from doing so as he has no intention to refund the overpayment.

I’m still  very concerned and would like your advise and confirmation that we’re on the right path and have a good chance to succeed 

Thank you! 

dimbo61

Speak to Shelter, CAB, Generation Rent 

JReacher1

How much is three weeks rent? Would assume it’s not a huge amount of money so surprised that the landlord is prepared to defend this so vigorously. 

I would suspect the letter is just an attempt to make you stop. Call his bluff and continue proceedings. Sounds like you have a very strong case and should win.  I would suspect the landlord will cave and offer to settle. 

If you do lose it’s very unlikely you’ll have to pay the landlords expenses. 

doodling

Hi,

If you continue the claim, it is possible that you will not be awarded the court costs if you win.  (The landlord's argument will be that if you had sent a letter before action, they would have paid and therefore going to court was unnecessary).  The landlord's solicitor has made that less likely by contesting the claim.

The defendant's costs are rarely awarded in small claims but your failure to follow the correct procedure makes that more likely (this is your biggest risk).  I don't know how likely this is.

Did you send anything in writing (including electronic writing like emails or texts) to the landlord or his agent telling them that you were planning to take them to court, why and when?  If you can show that you sent something (or a series of somethings) which had all the key features of a letter before action, even if it wasn't titled as such then you may be OK.   A text along the lines of "You agreed to part refund rent, you haven't, pay or I'm going to court in 2 weeks" probably meets most of the criteria for example, providing that the landlord knows it was from you (not that I'm recommending that LBAs should be sent in text form!).  The problem is that if you have done something in an unconventional way then it can be difficult to predict how a judge will respond.

_Penny_Dreadful

calcris said:

I would like your advice regarding early surrender of tenancy & rent refund by the landlord for rent paid in advance. This is a case of rent overpayment. 

The main points are-

1. The landlord asked us to vacate the property 3 weeks before the tenancy agreement ended. This was communicated via text messages from the landlord followed by a phone call, emails and a recorded delivery letter from the estate agents. 
2. My partner and I had paid the rent for 12 months in advance at the beginning of the year. 
3. Before we agreed to vacate the property early, the landlord agreed to refund the overpayment via text message to my partners phone.
4. We vacated the flat and asked the agency to refund deposit and rent. The deposit was returned but the rent was not.
5. Over the next month, the estate agency and my partner sent several emails, text message and made calls to the landlord about the rent refund. No response was received. The estate agent sent another email requesting the refund and attached the previous emails. She also informed the landlord that no response would result in us taking further action.
6. The real estate agency then advised my partner to contact Citizens Advice which advised to make a claim via moneyclaims.com.
7. My partner made a claim without understanding correct legal procedure .            a) He neglected to send letter before action. (Instead he sent an email to the landlord’s property manager as he had received no response from the landlord.) b) he did not add my name as claimant because the claim form said ‘claimant’ not ‘claimants’. c) he did not specify some details e.g. address of property.

 

We’ve now received a defence and counterclaim for court expenses and a rather intimidating and threatening letter from the landlord’s solicitor to stop pursuing the funds.

The defence has used the mistakes made in the claim (point 7) and has further stated that no written agreement was made to refund rent or surrender tenancy. 

The estate agent has confirmed that under the circumstances, the rent refund is an implied right and no written or signed agreement is required. So the landlord has denied that he agreed to the refund and wants us to pay court expenses instead. 

We only want what’s rightfully ours.

It also states that we made no attempt to contact him about the refund. This is not true and we have all the supporting communication as evidence.

It implies that we had discussed a surrender date but nothing had been confirmed and no communication received till after we vacated the property. The estate agent has confirmed that they followed landlords instructions to issue section 21 and didn’t act on their own.

Should we carry on in spite of the errors in the claim?

I was wondering if it would be a better idea for me to make a separate claim following the correct procedure i.e.letter before action.

Since I was a separate legal tenant I could perhaps salvage this matter by starting all over again? 

If we continue with my partners claim will be penalised in any way? What are the risks? Could the errors in the claim result in the judge awarding us less money, dismissing the claim or asking us to pay expenses?

I contacted a solicitor online and was advised to carry on as we had a strong case and we’re well within our legal rights. He said the landlord’s defence is aimed at dissuading us from doing so as he has no intention to refund the overpayment.

I’m still  very concerned and would like your advise and confirmation that we’re on the right path and have a good chance to succeed 

Thank you! 

As you were joint tenants you were not a separate legal tenant. Either one of you can make the claim for rent or you could make a joint claim. 

Personally I would carry on. I assume that 3 weeks worth of rent is less than £10,000 so even if your landlord wins in court, and I’m skeptical about his chances, he can’t claim his solicitor’s cost from you. The twit will probably spend more money on his solicitor than just giving you your money back. 

doodling

Hi,

_Penny_Dreadful said:

calcris said:

I would like your advice regarding early surrender of tenancy & rent refund by the landlord for rent paid in advance. This is a case of rent overpayment. 

The main points are-

1. The landlord asked us to vacate the property 3 weeks before the tenancy agreement ended. This was communicated via text messages from the landlord followed by a phone call, emails and a recorded delivery letter from the estate agents. 
2. My partner and I had paid the rent for 12 months in advance at the beginning of the year. 
3. Before we agreed to vacate the property early, the landlord agreed to refund the overpayment via text message to my partners phone.
4. We vacated the flat and asked the agency to refund deposit and rent. The deposit was returned but the rent was not.
5. Over the next month, the estate agency and my partner sent several emails, text message and made calls to the landlord about the rent refund. No response was received. The estate agent sent another email requesting the refund and attached the previous emails. She also informed the landlord that no response would result in us taking further action.
6. The real estate agency then advised my partner to contact Citizens Advice which advised to make a claim via moneyclaims.com.
7. My partner made a claim without understanding correct legal procedure .            a) He neglected to send letter before action. (Instead he sent an email to the landlord’s property manager as he had received no response from the landlord.) b) he did not add my name as claimant because the claim form said ‘claimant’ not ‘claimants’. c) he did not specify some details e.g. address of property.

 

We’ve now received a defence and counterclaim for court expenses and a rather intimidating and threatening letter from the landlord’s solicitor to stop pursuing the funds.

The defence has used the mistakes made in the claim (point 7) and has further stated that no written agreement was made to refund rent or surrender tenancy. 

The estate agent has confirmed that under the circumstances, the rent refund is an implied right and no written or signed agreement is required. So the landlord has denied that he agreed to the refund and wants us to pay court expenses instead. 

We only want what’s rightfully ours.

It also states that we made no attempt to contact him about the refund. This is not true and we have all the supporting communication as evidence.

It implies that we had discussed a surrender date but nothing had been confirmed and no communication received till after we vacated the property. The estate agent has confirmed that they followed landlords instructions to issue section 21 and didn’t act on their own.

Should we carry on in spite of the errors in the claim?

I was wondering if it would be a better idea for me to make a separate claim following the correct procedure i.e.letter before action.

Since I was a separate legal tenant I could perhaps salvage this matter by starting all over again? 

If we continue with my partners claim will be penalised in any way? What are the risks? Could the errors in the claim result in the judge awarding us less money, dismissing the claim or asking us to pay expenses?

I contacted a solicitor online and was advised to carry on as we had a strong case and we’re well within our legal rights. He said the landlord’s defence is aimed at dissuading us from doing so as he has no intention to refund the overpayment.

I’m still  very concerned and would like your advise and confirmation that we’re on the right path and have a good chance to succeed 

Thank you! 

As you were joint tenants you were not a separate legal tenant. Either one of you can make the claim for rent or you could make a joint claim. 

Personally I would carry on. I assume that 3 weeks worth of rent is less than £10,000 so even if your landlord wins in court, and I’m skeptical about his chances, he can’t claim his solicitor’s cost from you. The twit will probably spend more money on his solicitor than just giving you your money back. 

That is not the case with respect to costs, it is open to the judge to award costs under certain circumstances.  At least one solicitors website suggests that failing to follow the correct procedures could leave you open to costs, even for a small claim.  Personally I think it is unlikely in the OPs case but I have no experience on which to base that hunch.

_Penny_Dreadful

doodling said:

Hi,

_Penny_Dreadful said:

calcris said:

I would like your advice regarding early surrender of tenancy & rent refund by the landlord for rent paid in advance. This is a case of rent overpayment. 

The main points are-

1. The landlord asked us to vacate the property 3 weeks before the tenancy agreement ended. This was communicated via text messages from the landlord followed by a phone call, emails and a recorded delivery letter from the estate agents. 
2. My partner and I had paid the rent for 12 months in advance at the beginning of the year. 
3. Before we agreed to vacate the property early, the landlord agreed to refund the overpayment via text message to my partners phone.
4. We vacated the flat and asked the agency to refund deposit and rent. The deposit was returned but the rent was not.
5. Over the next month, the estate agency and my partner sent several emails, text message and made calls to the landlord about the rent refund. No response was received. The estate agent sent another email requesting the refund and attached the previous emails. She also informed the landlord that no response would result in us taking further action.
6. The real estate agency then advised my partner to contact Citizens Advice which advised to make a claim via moneyclaims.com.
7. My partner made a claim without understanding correct legal procedure .            a) He neglected to send letter before action. (Instead he sent an email to the landlord’s property manager as he had received no response from the landlord.) b) he did not add my name as claimant because the claim form said ‘claimant’ not ‘claimants’. c) he did not specify some details e.g. address of property.

 

We’ve now received a defence and counterclaim for court expenses and a rather intimidating and threatening letter from the landlord’s solicitor to stop pursuing the funds.

The defence has used the mistakes made in the claim (point 7) and has further stated that no written agreement was made to refund rent or surrender tenancy. 

The estate agent has confirmed that under the circumstances, the rent refund is an implied right and no written or signed agreement is required. So the landlord has denied that he agreed to the refund and wants us to pay court expenses instead. 

We only want what’s rightfully ours.

It also states that we made no attempt to contact him about the refund. This is not true and we have all the supporting communication as evidence.

It implies that we had discussed a surrender date but nothing had been confirmed and no communication received till after we vacated the property. The estate agent has confirmed that they followed landlords instructions to issue section 21 and didn’t act on their own.

Should we carry on in spite of the errors in the claim?

I was wondering if it would be a better idea for me to make a separate claim following the correct procedure i.e.letter before action.

Since I was a separate legal tenant I could perhaps salvage this matter by starting all over again? 

If we continue with my partners claim will be penalised in any way? What are the risks? Could the errors in the claim result in the judge awarding us less money, dismissing the claim or asking us to pay expenses?

I contacted a solicitor online and was advised to carry on as we had a strong case and we’re well within our legal rights. He said the landlord’s defence is aimed at dissuading us from doing so as he has no intention to refund the overpayment.

I’m still  very concerned and would like your advise and confirmation that we’re on the right path and have a good chance to succeed 

Thank you! 

As you were joint tenants you were not a separate legal tenant. Either one of you can make the claim for rent or you could make a joint claim. 

Personally I would carry on. I assume that 3 weeks worth of rent is less than £10,000 so even if your landlord wins in court, and I’m skeptical about his chances, he can’t claim his solicitor’s cost from you. The twit will probably spend more money on his solicitor than just giving you your money back. 

That is not the case with respect to costs, it is open to the judge to award costs under certain circumstances.  At least one solicitors website suggests that failing to follow the correct procedures could leave you open to costs, even for a small claim.  Personally I think it is unlikely in the OPs case but I have no experience on which to base that hunch.

Small claims court can award fixed costs against the loser but solicitor’s fees are not included in fixed costs.  

calcris

JReacher1 said:

How much is three weeks rent? Would assume it’s not a huge amount of money so surprised that the landlord is prepared to defend this so vigorously. 

I would suspect the letter is just an attempt to make you stop. Call his bluff and continue proceedings. Sounds like you have a very strong case and should win.  I would suspect the landlord will cave and offer to settle. 

If you do lose it’s very unlikely you’ll have to pay the landlords expenses. 

. 

Thanks for responding. The amount due is approximately £2500. I was very surprised when we received the claim…it’s not as if he needs the money. From the way things are going, it appears he never had any intention of paying us back and was expecting us to just gift it to him. We were too trusting and that’s what makes me so angry. We had to start paying rent for a new flat 2 weeks before we vacated his flat as no other flats suited us. So we’ve already lost some money.

As you’ve suggested I should call his bluff but not sure if he’ll cave because from what I’ve heard from others he’s great at evading payment of any sort. He has a habit of ignoring calls and emails if it’s not convenient, later claiming that he never received any communication. That’s what’s happening here.

The counterclaim is for for costs under CPR 27.14 (2) g, not sure how much that is, Court fees £100, contractual costs £1500. So he’s basically asking for almost the same amount back plus further contractual costs if the claim continues.. 

If I can be more definite that we don’t have to pay these the costs he’s claiming, I will definitely proceed. 

calcris

doodling said:

Hi,

If you continue the claim, it is possible that you will not be awarded the court costs if you win.  (The landlord's argument will be that if you had sent a letter before action, they would have paid and therefore going to court was unnecessary).  The landlord's solicitor has made that less likely by contesting the claim.

The defendant's costs are rarely awarded in small claims but your failure to follow the correct procedure makes that more likely (this is your biggest risk).  I don't know how likely this is.

Did you send anything in writing (including electronic writing like emails or texts) to the landlord or his agent telling them that you were planning to take them to court, why and when?  If you can show that you sent something (or a series of somethings) which had all the key features of a letter before action, even if it wasn't titled as such then you may be OK.   A text along the lines of "You agreed to part refund rent, you haven't, pay or I'm going to court in 2 weeks" probably meets most of the criteria for example, providing that the landlord knows it was from you (not that I'm recommending that LBAs should be sent in text form!).  The problem is that if you have done something in an unconventional way then it can be difficult to predict how a judge will respond.

My partner sent a few texts and emails addressed to both the landlord and the property manager. Only the manager responded but only to other queries, never to the one about rent refund. The managers’ replies always removed the landlord as an addressee probably because he didn’t want to be bothered. So the last email that my partner sent was only to the manager asking when they intended to pay and stating that if they didn’t respond, he’d be taking further action. Before we moved, he sent a text to the landlord asking if our rent would be refunded if we left early and he replied yes.
 The real estate agent tried to help by sending the landlord many emails on our behalf as well as calling. She has confirmed that she recently sent another email attaching the previous ones, informing him that we would be taking further action if he did not pay up. 

She has confirmed that no written agreement for rent refund is required and that it is implied right.

I hope this will be sufficient.

doodling

Hi,

_Penny_Dreadful said:

doodling said:

Hi,

_Penny_Dreadful said:

calcris said:

I would like your advice regarding early surrender of tenancy & rent refund by the landlord for rent paid in advance. This is a case of rent overpayment. 

The main points are-

1. The landlord asked us to vacate the property 3 weeks before the tenancy agreement ended. This was communicated via text messages from the landlord followed by a phone call, emails and a recorded delivery letter from the estate agents. 
2. My partner and I had paid the rent for 12 months in advance at the beginning of the year. 
3. Before we agreed to vacate the property early, the landlord agreed to refund the overpayment via text message to my partners phone.
4. We vacated the flat and asked the agency to refund deposit and rent. The deposit was returned but the rent was not.
5. Over the next month, the estate agency and my partner sent several emails, text message and made calls to the landlord about the rent refund. No response was received. The estate agent sent another email requesting the refund and attached the previous emails. She also informed the landlord that no response would result in us taking further action.
6. The real estate agency then advised my partner to contact Citizens Advice which advised to make a claim via moneyclaims.com.
7. My partner made a claim without understanding correct legal procedure .            a) He neglected to send letter before action. (Instead he sent an email to the landlord’s property manager as he had received no response from the landlord.) b) he did not add my name as claimant because the claim form said ‘claimant’ not ‘claimants’. c) he did not specify some details e.g. address of property.

 

We’ve now received a defence and counterclaim for court expenses and a rather intimidating and threatening letter from the landlord’s solicitor to stop pursuing the funds.

The defence has used the mistakes made in the claim (point 7) and has further stated that no written agreement was made to refund rent or surrender tenancy. 

The estate agent has confirmed that under the circumstances, the rent refund is an implied right and no written or signed agreement is required. So the landlord has denied that he agreed to the refund and wants us to pay court expenses instead. 

We only want what’s rightfully ours.

It also states that we made no attempt to contact him about the refund. This is not true and we have all the supporting communication as evidence.

It implies that we had discussed a surrender date but nothing had been confirmed and no communication received till after we vacated the property. The estate agent has confirmed that they followed landlords instructions to issue section 21 and didn’t act on their own.

Should we carry on in spite of the errors in the claim?

I was wondering if it would be a better idea for me to make a separate claim following the correct procedure i.e.letter before action.

Since I was a separate legal tenant I could perhaps salvage this matter by starting all over again? 

If we continue with my partners claim will be penalised in any way? What are the risks? Could the errors in the claim result in the judge awarding us less money, dismissing the claim or asking us to pay expenses?

I contacted a solicitor online and was advised to carry on as we had a strong case and we’re well within our legal rights. He said the landlord’s defence is aimed at dissuading us from doing so as he has no intention to refund the overpayment.

I’m still  very concerned and would like your advise and confirmation that we’re on the right path and have a good chance to succeed 

Thank you! 

As you were joint tenants you were not a separate legal tenant. Either one of you can make the claim for rent or you could make a joint claim. 

Personally I would carry on. I assume that 3 weeks worth of rent is less than £10,000 so even if your landlord wins in court, and I’m skeptical about his chances, he can’t claim his solicitor’s cost from you. The twit will probably spend more money on his solicitor than just giving you your money back. 

That is not the case with respect to costs, it is open to the judge to award costs under certain circumstances.  At least one solicitors website suggests that failing to follow the correct procedures could leave you open to costs, even for a small claim.  Personally I think it is unlikely in the OPs case but I have no experience on which to base that hunch.

Small claims court can award fixed costs against the loser but solicitor’s fees are not included in fixed costs.  

The court can award whatever costs it likes if the claimant has acted unreasonably.  That would include solicitors costs.

The landlord's solicitor clearly knows that as he has referenced the relevant part of the CPR in the OP's post following yours.

Personally I think it is very unlikely that the court would do that in this case but I am not a lawyer and have no experience to draw from.

It is more likely that the solicitor has referenced that part of the CPR in order to scare the OP into discontinuing the claim.

The question the OP needs to ask is "did the landlord know that this court case was coming?".  If the OP can truthfully answer yes then I think they will be fine.  If they can't but they win then I think they will be fine but might incur some costs, deducted from their claim. If they can't and they lose then there is an element of risk, as I said above I don't know enough to quantify that risk.

calcris

_Penny_Dreadful said:

calcris said:

I would like your advice regarding early surrender of tenancy & rent refund by the landlord for rent paid in advance. This is a case of rent overpayment. 

The main points are-

1. The landlord asked us to vacate the property 3 weeks before the tenancy agreement ended. This was communicated via text messages from the landlord followed by a phone call, emails and a recorded delivery letter from the estate agents. 
2. My partner and I had paid the rent for 12 months in advance at the beginning of the year. 
3. Before we agreed to vacate the property early, the landlord agreed to refund the overpayment via text message to my partners phone.
4. We vacated the flat and asked the agency to refund deposit and rent. The deposit was returned but the rent was not.
5. Over the next month, the estate agency and my partner sent several emails, text message and made calls to the landlord about the rent refund. No response was received. The estate agent sent another email requesting the refund and attached the previous emails. She also informed the landlord that no response would result in us taking further action.
6. The real estate agency then advised my partner to contact Citizens Advice which advised to make a claim via moneyclaims.com.
7. My partner made a claim without understanding correct legal procedure .            a) He neglected to send letter before action. (Instead he sent an email to the landlord’s property manager as he had received no response from the landlord.) b) he did not add my name as claimant because the claim form said ‘claimant’ not ‘claimants’. c) he did not specify some details e.g. address of property.

 

We’ve now received a defence and counterclaim for court expenses and a rather intimidating and threatening letter from the landlord’s solicitor to stop pursuing the funds.

The defence has used the mistakes made in the claim (point 7) and has further stated that no written agreement was made to refund rent or surrender tenancy. 

The estate agent has confirmed that under the circumstances, the rent refund is an implied right and no written or signed agreement is required. So the landlord has denied that he agreed to the refund and wants us to pay court expenses instead. 

We only want what’s rightfully ours.

It also states that we made no attempt to contact him about the refund. This is not true and we have all the supporting communication as evidence.

It implies that we had discussed a surrender date but nothing had been confirmed and no communication received till after we vacated the property. The estate agent has confirmed that they followed landlords instructions to issue section 21 and didn’t act on their own.

Should we carry on in spite of the errors in the claim?

I was wondering if it would be a better idea for me to make a separate claim following the correct procedure i.e.letter before action.

Since I was a separate legal tenant I could perhaps salvage this matter by starting all over again? 

If we continue with my partners claim will be penalised in any way? What are the risks? Could the errors in the claim result in the judge awarding us less money, dismissing the claim or asking us to pay expenses?

I contacted a solicitor online and was advised to carry on as we had a strong case and we’re well within our legal rights. He said the landlord’s defence is aimed at dissuading us from doing so as he has no intention to refund the overpayment.

I’m still  very concerned and would like your advise and confirmation that we’re on the right path and have a good chance to succeed 

Thank you! 

As you were joint tenants you were not a separate legal tenant. Either one of you can make the claim for rent or you could make a joint claim. 

Personally I would carry on. I assume that 3 weeks worth of rent is less than £10,000 so even if your landlord wins in court, and I’m skeptical about his chances, he can’t claim his solicitor’s cost from you. The twit will probably spend more money on his solicitor than just giving you your money back. 

So my name not being included as Claimant is hardly an error as the solicitor has stated. He claims that the Claimant (my partner) doesn’t have sufficient standing to bring the claim on his own as he’s only one of the tenants.. seems to be another tactic to dissuade us.
The amount is not high for him, but it is for me. Hopefully he will end up paying more than he bargained for. Thanks for confirming that I won’t have to pay his costs, this was my greatest worry.