Rent overpayment and errors in making a claim

doodling

Hi,

No problem.  The key will be to ensure that you follow the process from now on and respond as necessary to the court (where required providing copies of those responses to the landlord / his solicitor).  You need to make sure that you respond to any counter claims, explaining why they are unjustified, within the time limit for doing so - it isn't clear from your posts whether the £1500, £100 and any other figures they are claiming are part of a formal counter claim or whether they are just mentioned in a letter from the landlord's solicitor.  If they are a formal counter claim you need to respond.

Your responses to the points you have mentioned are (I think):

a) Whilst it is for the court to decide, and you apologise for your omission, you don't believe that failing to send a letter before action is a sufficiently unreasonable act to justify the court ordering you to pay the landlord's costs under CPR 27.14(g).  [ If you told the landlord or their agent in a less formal manner that you were going to go to court then you would also mention that giving details of how and when you told them. ]  You also note that the landlord is choosing to defend your claim and therefore sending a LBA would have made no practical difference.

b) There is no contractual basis for the £1500 claimed - your tenancy agreement permits costs to be claimed in relation to rent arrears only, not in relation to other disputes.  [ You could also argue that if such a clause did exist and didn't permit the tenant to recover their costs in a similar way then that term in the tenancy may be Unfair according to the Consumer Rights Act. ]

c) You'd need to know what the £100 was for before commenting on that.

You only need to respond to the points raised in a formal counter claim, so, for example, if they don't mention one of those points in their formal counter claim then you don't need to respond to that point.

There is still a very small risk that the landlords solicitor could convince a judge that you were hugely unreasonable in not writing a LBA or that you have missed something in the tenancy agreement where you agree that costs can be recovered but I think that risk is tiny.

calcris

doodling said:

Hi,

No problem.  The key will be to ensure that you follow the process from now on and respond as necessary to the court (where required providing copies of those responses to the landlord / his solicitor).  You need to make sure that you respond to any counter claims, explaining why they are unjustified, within the time limit for doing so - it isn't clear from your posts whether the £1500, £100 and any other figures they are claiming are part of a formal counter claim or whether they are just mentioned in a letter from the landlord's solicitor.  If they are a formal counter claim you need to respond.

Your responses to the points you have mentioned are (I think):

a) Whilst it is for the court to decide, and you apologise for your omission, you don't believe that failing to send a letter before action is a sufficiently unreasonable act to justify the court ordering you to pay the landlord's costs under CPR 27.14(g).  [ If you told the landlord or their agent in a less formal manner that you were going to go to court then you would also mention that giving details of how and when you told them. ]  You also note that the landlord is choosing to defend your claim and therefore sending a LBA would have made no practical difference.

b) There is no contractual basis for the £1500 claimed - your tenancy agreement permits costs to be claimed in relation to rent arrears only, not in relation to other disputes.  [ You could also argue that if such a clause did exist and didn't permit the tenant to recover their costs in a similar way then that term in the tenancy may be Unfair according to the Consumer Rights Act. ]

c) You'd need to know what the £100 was for before commenting on that.

You only need to respond to the points raised in a formal counter claim, so, for example, if they don't mention one of those points in their formal counter claim then you don't need to respond to that point.

There is still a very small risk that the landlords solicitor could convince a judge that you were hugely unreasonable in not writing a LBA or that you have missed something in the tenancy agreement where you agree that costs can be recovered but I think that risk is tiny.

Hi, you’re right the process is so important and being the more thorough one,  I’ve taken over from my partner. 

The last letter we received from Court was acknowledgment of service to the defendant, nothing after that.

We received 2 separate letters, one by special delivery and the other by Royal Mail, containing copies of lawyer’s letter and defence and counterclaim filed in Court (as it addresses the Court therein).  I think it’s been filed in Court and a copy sent to us. Not sure why they sent 2 copies but there’s no indication that we have to reply or time limit to reply . So far I’ve only acknowledged receipt of the solicitor’s letter (via email) to his email address as requested.
Do we still have to reply to the solicitor regarding the defence  and counterclaim or could this be done in the N180 form ?  

The figures I mentioned are a part of the same defence and counterclaim mentioned above, received from the LL’s solicitor.

b) TA mentions LL’s cost upon Tenant default - covering reasonable legal and other costs and disbursements incurred by LL enforcing or attempting to enforce (incl. legal process whether by correspondence or otherwise) including rent or monies payable under the provisions for recovering possession of property or any other action arising out of breach non performance or non observance by Tenant of provisions of TA. This also relates to tenancy deposit.
Here he is trying to enforce another clause which states that any notice to be served or given to LL or Agent by Tenant under the TA is only deemed valid served or given if sent in writing by email, hand, post, courier etc to his or agent’s address. So it all hinges on failure to send LBA.

He was sent reminders by agent and my partner via email and text only.. but the agent definitely sent the last email mentioning that if no response was received we would take further action. Therefore he’s going to use the fact that we didn’t give proper notice before filing.
I understand there is a risk but could the judge decide in his favour based on this alone? I don’t want to incur any further losses.
If you now think the risk is now greater, should I proceed? 

c)It is mentioned that £100 is the court fee for the counterclaim.

Thank you for your time.

macman

You have made a bit of a mess of the claim by not submitting an LBA first. Judges don't like unnecessary litigation, but it doesn't weaken your claim irrevocably.
Failing to get an agreement to refund the rent  formally, in writing, again does not help, but if you have text messages that you can print and submit in evidence, then this is admissible. Is the LL really prepared to perjure himself before the judge and deny that he made that offer?
I suggest that you should proceed with the claim and that he will settle out of court before it is heard. But of course none of us know exactly what is in the LL's mind. His behaviour so far is not exactly rational. You have little to lose and everything to gain. At present he is just trying to intimidate you into dropping the claim by using his lawyers.
But do remember that getting judgement in your favour does not guarantee that he will pay up. You may need to instruct bailiffs as well. Check if he or his company already have CCJ's awarded against them, as there could be some history here.

calcris

macman said:

You have made a bit of a mess of the claim by not submitting an LBA first. Judges don't like unnecessary litigation, but it doesn't weaken your claim irrevocably.
Failing to get an agreement to refund the rent  formally, in writing, again does not help, but if you have text messages that you can print and submit in evidence, then this is admissible. Is the LL really prepared to perjure himself before the judge and deny that he made that offer?
I suggest that you should proceed with the claim and that he will settle out of court before it is heard. But of course none of us know exactly what is in the LL's mind. His behaviour so far is not exactly rational. You have little to lose and everything to gain. At present he is just trying to intimidate you into dropping the claim by using his lawyers.
But do remember that getting judgement in your favour does not guarantee that he will pay up. You may need to instruct bailiffs as well. Check if he or his company already have CCJ's awarded against them, as there could be some history here.

Thank you for your advice. Yes it is a huge mess and I came to this forum hoping to get some such valuable advice in the hope of salvaging something. You don’t know how right you are about the LL! They’ve been so many stories floating around about shady dealings and money owed. I’m convinced that his lawyer is on a permanent retainer in order to intimidate creditors. For us, this claim has now become more about the principle and less about the money.  Estate agents and the legal system in general, should do more to protect the rights of gullible tenants like us. Hopefully justice will prevail and the judge won’t favour the LL and penalise us because of our lack of knowledge about correct legal procedure.

macman

The legal procedure is not the issue here. All the judge will be interested in is if you can demonstrate that you agreed to vacate early in return for a rent refund. If you have that evidence, I can see no defence.
And, in any case, why would you ever have agreed to vacate early without a refund? Most tenants in this situation would only have agreed to his request if there was a further incentive offered beyond a pro-rata adjustment. After all, you were doing him a favour. You could just have sat tight and vacated at the end of the minimum term as per your contract.

Murphybear

Most landlords are good (and I’ve dealt with hundreds, only ever had one idiot ).  It sounds like yours is one of the idiots.

if you need further help with your rights and/or documentation then have a chat with Citizens Advice.  

calcris

Hello again, I would like to post an update on our claim and seek advice from those who’ve had a similar experience.
the landlord’s solicitor got in touch to discuss the claim “without prejudice save as to costs”. The landlord is willing to drop his counterclaim if we drop our claim. So the landlord clearly has no intention of paying us but wants us to drop the claim. We obviously refused his offer.
We explained the situation to the solicitor (he was comple unaware of actual events) and highlighted all the evidence we had. He requested us to forward a screenshot of the landlord’s text message agreeing to refund the rent, which we did.
Now he requests that we disclose all the evidence i.e. emails. Should we do that now or wait for the Court’s direction? 

The lettings agent informed us that she would disclose the emails she sent to the landlord asking for the refund, if the Court or the landlord so directed. 

Should we exchange evidence? That means the landlord asks the agent to send us her emails and we send his solicitor our emails? Thank you.

BobT36

I wouldn't if I were you. They're working for him, not you. 
You're essentially just cutting his costs by giving more ammo to his lawyers that will be able to advise him easier, and then find a loophole against you. 

Consult with your own legal advice instead, ones who work for you. 

calcris

BobT36 said:

I wouldn't if I were you. They're working for him, not you. 
You're essentially just cutting his costs by giving more ammo to his lawyers that will be able to advise him easier, and then find a loophole against you. 

Consult with your own legal advice instead, ones who work for you. 

Thank you. I was asking because I wasn’t sure if I was following correct procedure. The landlord has now decided to take this Claim to court although we agreed to the proposed allocation to Small Claims track and further mediation. I checked the claims process and it advices that full disclosure is to be provided only if the Court provides such direction and that it should be done 14 days before the case is heard. So I think you’re absolutely correct, they’re looking for ammo. ..!