Rent overpayment and errors in making a claim

_Penny_Dreadful

doodling said:

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.

No, the court cannot award whatever costs it likes. Legislation sets out what costs courts can award depending on the type of case. For small claims court this does not include solicitors fees as the whole point of small claims court is that it is a simple process that does not require a solicitor. 

Who knows what the £1500 the solicitor has listed as contractual costs are actually for, but it won’t be their fees for representing their client. I don’t know where they’ve got the £100 court cost from either because the OP as the claimant pays the court fee when submitting the claim, their client, the defendant doesn’t pay a fee to submit their defence. 

_Penny_Dreadful

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

calcris

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.

This is very helpful information. I’m aware that I’ll be liable for some costs, but what they’re claiming seems ridiculous and so unfair to gullible tenants like us. We’ve done nothing wrong except fail to follow exact protocol (LBA) because we were completely unfamiliar with legal disputes. I admit that we made a mistake by solely depending on the existing correspondence with the LL, but surely  there must be some way to get our money back from this greedy landlord?

doodling

Hi,

_Penny_Dreadful said:

doodling said:

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.

No, the court cannot award whatever costs it likes. Legislation sets out what costs courts can award depending on the type of case. For small claims court this does not include solicitors fees as the whole point of small claims court is that it is a simple process that does not require a solicitor. 

Who knows what the £1500 the solicitor has listed as contractual costs are actually for, but it won’t be their fees for representing their client. I don’t know where they’ve got the £100 court cost from either because the OP as the claimant pays the court fee when submitting the claim, their client, the defendant doesn’t pay a fee to submit their defence. 

Can I just check that you have read CPR 27.14(g) because you're getting a very different meaning from it to me?

Perhaps The Rule on Unreasonable Behaviour in Small Claims: Reasonably Obvious? (lpc-law.co.uk) might help?

That implies that it is unlikely that the OP's failure to write a letter before action would be considered unreasonable (given the behaviour they do identify as unreasonable) and therefore the OP is probably not at risk of having to pay costs as a result of CPR 27.14(g).  It does however helpfully point out that where a contract that permits the recovery of costs exists between the parties then these are recoverable on the Small Claims Track, identifying tenancy agreements as one of the likely forms of contract where this could be the case.

My suspicion is that the OP's tenancy agreement permits the recovery of costs and this is the basis of the £1500 contractual costs being claimed.  The OP might want to read their contract and see if that is the case.

All of this is moot if the OP is confident that they have the evidence to demonstrate that the landlord agreed to refund part of the rent as part of the early termination.  It does however mean that there may be a significant downside if that evidence is not as persuasive as the OP thinks it is.

_Penny_Dreadful

doodling said:

Hi,

_Penny_Dreadful said:

doodling said:

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.

No, the court cannot award whatever costs it likes. Legislation sets out what costs courts can award depending on the type of case. For small claims court this does not include solicitors fees as the whole point of small claims court is that it is a simple process that does not require a solicitor. 

Who knows what the £1500 the solicitor has listed as contractual costs are actually for, but it won’t be their fees for representing their client. I don’t know where they’ve got the £100 court cost from either because the OP as the claimant pays the court fee when submitting the claim, their client, the defendant doesn’t pay a fee to submit their defence. 

Can I just check that you have read CPR 27.14(g) because you're getting a very different meaning from it to me?

Perhaps The Rule on Unreasonable Behaviour in Small Claims: Reasonably Obvious? (lpc-law.co.uk) might help?

That implies that it is unlikely that the OP's failure to write a letter before action would be considered unreasonable (given the behaviour they do identify as unreasonable) and therefore the OP is probably not at risk of having to pay costs as a result of CPR 27.14(g).  It does however helpfully point out that where a contract that permits the recovery of costs exists between the parties then these are recoverable on the Small Claims Track, identifying tenancy agreements as one of the likely forms of contract where this could be the case.

My suspicion is that the OP's tenancy agreement permits the recovery of costs and this is the basis of the £1500 contractual costs being claimed.  The OP might want to read their contract and see if that is the case.

All of this is moot if the OP is confident that they have the evidence to demonstrate that the landlord agreed to refund part of the rent as part of the early termination.  It does however mean that there may be a significant downside if that evidence is not as persuasive as the OP thinks it is.

Not only have I read it but I’ve been through small claims court (as the claimant) twice in England which going by your own posts is twice more than you. I have real world experience of doing this.  There is no clause in any tenancy that essentially gives a landlord a blank cheque book to spend whatever they like in solicitor and barrister fees, and to then be able to reclaim them from the tenant. Even in the case of a section 21 where a landlord uses a solicitor to take it all the way to court and wins the solicitor fees awarded by the court is a token sum of circa £70. 

I do wonder if this landlord’s solicitor is aware that their client offered the refund in writing (the text) and that the OP has multiple emails requesting the funds back. 

calcris

_Penny_Dreadful said:

doodling said:

Hi,

_Penny_Dreadful said:

doodling said:

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.

No, the court cannot award whatever costs it likes. Legislation sets out what costs courts can award depending on the type of case. For small claims court this does not include solicitors fees as the whole point of small claims court is that it is a simple process that does not require a solicitor. 

Who knows what the £1500 the solicitor has listed as contractual costs are actually for, but it won’t be their fees for representing their client. I don’t know where they’ve got the £100 court cost from either because the OP as the claimant pays the court fee when submitting the claim, their client, the defendant doesn’t pay a fee to submit their defence. 

Can I just check that you have read CPR 27.14(g) because you're getting a very different meaning from it to me?

Perhaps The Rule on Unreasonable Behaviour in Small Claims: Reasonably Obvious? (lpc-law.co.uk) might help?

That implies that it is unlikely that the OP's failure to write a letter before action would be considered unreasonable (given the behaviour they do identify as unreasonable) and therefore the OP is probably not at risk of having to pay costs as a result of CPR 27.14(g).  It does however helpfully point out that where a contract that permits the recovery of costs exists between the parties then these are recoverable on the Small Claims Track, identifying tenancy agreements as one of the likely forms of contract where this could be the case.

My suspicion is that the OP's tenancy agreement permits the recovery of costs and this is the basis of the £1500 contractual costs being claimed.  The OP might want to read their contract and see if that is the case.

All of this is moot if the OP is confident that they have the evidence to demonstrate that the landlord agreed to refund part of the rent as part of the early termination.  It does however mean that there may be a significant downside if that evidence is not as persuasive as the OP thinks it is.

Not only have I read it but I’ve been through small claims court (as the claimant) twice in England which going by your own posts is twice more than you. I have real world experience of doing this.  There is no clause in any tenancy that essentially gives a landlord a blank cheque book to spend whatever they like in solicitor and barrister fees, and to then be able to reclaim them from the tenant. Even in the case of a section 21 where a landlord uses a solicitor to take it all the way to court and wins the solicitor fees awarded by the court is a token sum of circa £70. 

I do wonder if this landlord’s solicitor is aware that their client offered the refund in writing (the text) and that the OP has multiple emails requesting the funds back. 

I checked the tenancy agreement and recovery of costs is only related to non payment of rent by the tenant. I have a text message where my partner asked the landlord if he will agree to refund the rent paid in advance before the 2 month notice period ended and he says yes. This means that he was supposed to pay us before we vacated the flat which he didn’t. He was reminded to do so my my partner and the estate agent after we vacated and an entire month passed before the claim was made. So thank you for confirming that our behaviour has been neither unreasonable (nor premature as the defence claims).

calcris

_Penny_Dreadful said:

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

If this is acceptable and legal procedure, I would like to do as you’ve suggested and jointly file another MCOL.
The landlord has no intention of paying and he’s using the solicitor to get us to back off. My solicitor told me to expect an N180 form, followed by mediation and then take it to court if mediation fails. If we decide to withdraw the claim and start over, should we do that now or until after mediation? Thanks 

_Penny_Dreadful

calcris said:

_Penny_Dreadful said:

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

If this is acceptable and legal procedure, I would like to do as you’ve suggested and jointly file another MCOL.
The landlord has no intention of paying and he’s using the solicitor to get us to back off. My solicitor told me to expect an N180 form, followed by mediation and then take it to court if mediation fails. If we decide to withdraw the claim and start over, should we do that now or until after mediation? Thanks 

If the shoe were on the other foot and you owed the landlord rent he could take one or both of you to court to recover the monies owed. 

I’d go to mediation first. The best outcome for all parties is to resolve the issue without having to go all the way to court. 

doodling

Hi,

calcris said:

_Penny_Dreadful said:

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

If this is acceptable and legal procedure, I would like to do as you’ve suggested and jointly file another MCOL.
The landlord has no intention of paying and he’s using the solicitor to get us to back off. My solicitor told me to expect an N180 form, followed by mediation and then take it to court if mediation fails. If we decide to withdraw the claim and start over, should we do that now or until after mediation? Thanks 

I don't know the answer as to whether the it is acceptable to claim in the name of one of the tenants rather than all of them.  I think that a claim from one of the joint tenants would be acceptable but I can't find a legal basis for that belief.  You would need a solicitor to confirm, but:

I don't see any value in withdrawing your claim and starting another.  The cost of filing the first claim is already gone and we've established that you are unlikely to be at risk from a claim for costs from the other party, either due to unreasonable behaviour on your part in not sending a letter before action or through having agreed to them through your tenancy agreement.  I believe it may be open to the judge to not award the filing cost to you if you win as a consequence of failing to send a LBA but withdrawing and starting again means that you definitely have to pay that cost anyway.

I would continue the current claim - the worst that can happen is that you lose your filing costs and start again, exactly as if you withdraw your current claim now.

I did consider whether it was possible to amend the first claim but it appears the cost for amending a claim is equivalent to that for starting a claim so I don't see the value in doing so.

calcris

doodling said:

Hi,

calcris said:

_Penny_Dreadful said:

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

If this is acceptable and legal procedure, I would like to do as you’ve suggested and jointly file another MCOL.
The landlord has no intention of paying and he’s using the solicitor to get us to back off. My solicitor told me to expect an N180 form, followed by mediation and then take it to court if mediation fails. If we decide to withdraw the claim and start over, should we do that now or until after mediation? Thanks 

I don't know the answer as to whether the it is acceptable to claim in the name of one of the tenants rather than all of them.  I think that a claim from one of the joint tenants would be acceptable but I can't find a legal basis for that belief.  You would need a solicitor to confirm, but:

I don't see any value in withdrawing your claim and starting another.  The cost of filing the first claim is already gone and we've established that you are unlikely to be at risk from a claim for costs from the other party, either due to unreasonable behaviour on your part in not sending a letter before action or through having agreed to them through your tenancy agreement.  I believe it may be open to the judge to not award the filing cost to you if you win as a consequence of failing to send a LBA but withdrawing and starting again means that you definitely have to pay that cost anyway.

I would continue the current claim - the worst that can happen is that you lose your filing costs and start again, exactly as if you withdraw your current claim now.

I did consider whether it was possible to amend the first claim but it appears the cost for amending a claim is equivalent to that for starting a claim so I don't see the value in doing so.

doodling said:

Hi,

calcris said:

_Penny_Dreadful said:

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

If this is acceptable and legal procedure, I would like to do as you’ve suggested and jointly file another MCOL.
The landlord has no intention of paying and he’s using the solicitor to get us to back off. My solicitor told me to expect an N180 form, followed by mediation and then take it to court if mediation fails. If we decide to withdraw the claim and start over, should we do that now or until after mediation? Thanks 

I don't know the answer as to whether the it is acceptable to claim in the name of one of the tenants rather than all of them.  I think that a claim from one of the joint tenants would be acceptable but I can't find a legal basis for that belief.  You would need a solicitor to confirm, but:

I don't see any value in withdrawing your claim and starting another.  The cost of filing the first claim is already gone and we've established that you are unlikely to be at risk from a claim for costs from the other party, either due to unreasonable behaviour on your part in not sending a letter before action or through having agreed to them through your tenancy agreement.  I believe it may be open to the judge to not award the filing cost to you if you win as a consequence of failing to send a LBA but withdrawing and starting again means that you definitely have to pay that cost anyway.

I would continue the current claim - the worst that can happen is that you lose your filing costs and start again, exactly as if you withdraw your current claim now.

I did consider whether it was possible to amend the first claim but it appears the cost for amending a claim is equivalent to that for starting a claim so I don't see the value in doing so.

doodling said:

Hi,

calcris said:

_Penny_Dreadful said:

calcris said:

_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.

It was a joint tenancy, as such you each had joint and several liability. My take is that the solicitor is using scare tactics in the hope you drop it. If you’re really concerned you could withdraw the claim, jointly send a letter before action to the landlord, and then jointly file another MCOL.  Who knows what information your former landlord has shared with the solicitor so the solicitor could be in the dark about your previous communications on the subject. 

If this is acceptable and legal procedure, I would like to do as you’ve suggested and jointly file another MCOL.
The landlord has no intention of paying and he’s using the solicitor to get us to back off. My solicitor told me to expect an N180 form, followed by mediation and then take it to court if mediation fails. If we decide to withdraw the claim and start over, should we do that now or until after mediation? Thanks 

I don't know the answer as to whether the it is acceptable to claim in the name of one of the tenants rather than all of them.  I think that a claim from one of the joint tenants would be acceptable but I can't find a legal basis for that belief.  You would need a solicitor to confirm, but:

I don't see any value in withdrawing your claim and starting another.  The cost of filing the first claim is already gone and we've established that you are unlikely to be at risk from a claim for costs from the other party, either due to unreasonable behaviour on your part in not sending a letter before action or through having agreed to them through your tenancy agreement.  I believe it may be open to the judge to not award the filing cost to you if you win as a consequence of failing to send a LBA but withdrawing and starting again means that you definitely have to pay that cost anyway.

I would continue the current claim - the worst that can happen is that you lose your filing costs and start again, exactly as if you withdraw your current claim now.

I did consider whether it was possible to amend the first claim but it appears the cost for amending a claim is equivalent to that for starting a claim so I don't see the value in doing so.

Thank you so much for taking the time to advise me. The process can very daunting when one is on unfamiliar ground, especially a legal one. It appears that under the current circumstances, all that we risk losing is filing costs before we have to start again. I really appreciate your help.