Possession order dismissed due to advice of Evictions Specialist

bobbstar21

England

My uncle and auntie purchased a home in 2021 with sitting tenants. They wanted to live there but have been naive about evictions.

In 2023, they hired an Evictions Specialist. It's generally been a poor service from them but things were moving (albeit slowly).

They applied for an accelerated possession order which the tenants appealed. There was a hearing and the judge dismissed it due to the order not including deposit info.

My uncle told the evictions specialist that he did not have a deposit but the former landlord did. The evictions specialist said that's fine and that they didn't need to include the deposit info. They sent over the possession order and my uncle signed it.

The question on the form "Was a deposit paid in connection with the current tenancy or any prior tenancy of the property to which the Defendant was a party?" seems clear to me this should have been ticked yes. But on the advice of the evictions specialist, they ticked it no and my uncle signed off on it.

Unfortunately there is no written communication here so no way to prove the conversations between my uncle and the evictions specialists (may try to get phone recordings if they have it under SAR).

The evictions specialist have been very difficult in trying to understand this from their POV and only sent over the signed form saying they do not take responsibility for what their client tells them.

Wondering if we have any chance of reclaiming the fees back in court? They're the specialists. My uncle has no reason to mislead them about the deposit and wouldn't know any better if they've told him he doesn't need to include it.

tacpot12

Your aunt and uncle certainly have a chance to claim back the fees. The evictions specialist doesn't seem to have acted professionally and their negligence seems to have cost your aunt and uncle something. 

However, it's not a foregone conclusion that they will win, and going to court will cost them more money. Personally, I think they would be better off spending their money on getting the eviction sorted. They could continue to use the evictions sepcialist IF it is clear that it will not cost them any more money. If it is going to involve spending more money with the evictions specialist, it would be better for them to go elsewhere, than continue to pay for incomptence.
 

bobbstar21

They have moved on to using solicitors now.

I mean it would be a money claim right? Going to court shouldn't cost much. There's a good £1.3k at stake here and they could certainly use that money back.

theartfullodger

On becoming owners they became responsible for the deposit.  Regardless of previous owner holding on to it. It's in legislation - s3 landlord and tenant (covenants)Act 1995 - new owner takes on benefits and liabilities of previous owner.

Have they done any training or education in how to be landlords or landlord/tenants law please?  BEFORE they became owners. Not doing it usually dramatically more expensive than doing it 

They will also be liable for claim of up to 3x deposit for not protecting it.

In their shoes I'd return the deposit to tenants (understand they never go it ) then issue new s21 and go for possession again.  Be aware labour plan to remove s21 (fine by me, landlord for 20+ years, also in Scotland when removal had no impact on me (perhaps as I was careful to try and ensure good relationships with tenants.  Generous and flexible (my opinions).)

Did they serve s3 and s48 notices on tenants when becoming owners? If not possible fines and criminal offence (sadly rarely enforced)

Do aunt and uncle know how to post such questions??

There being an "evictions specialist" paid and involved doesn't change anything.  Landlord remains responsible.

Good luck .......

bobbstar21

I appreciate the advice but this is not what I am asking. I have said they have been naive about it. All the deposit stuff has been sorted i.e. deposit returned, new s21 etc.

My point is they mentioned to the evictions specialist that they do not have a deposit, the former landlord does. On that advice, the specialists crossed out the deposit info on the order which my uncle and auntie signed.

This has caused delays, issuing of new s21, new fees and so on.

Grizebeck

https://atlanticchambers.co.uk/baxter-v-doble-2023-ewhc-486/
https://www.bailii.org/ew/cases/EWHC/KB/2023/486.html

Might be of interest 

theartfullodger

bobbstar21 said:

I appreciate the advice but this is not what I am asking. 

Understood.  But suspect they ( and perhaps you) may benefit from better understanding by reading my earlier response.

Best regards.

propertyrental

There are 81 reasons why a S21 application may fail. Deposit is just one of them. So first thing to do is check the other 80. See flow chart here:

https://nearlylegal.co.uk/section-21-flowchart/

The exact wording of the conversation with the E S might be relevant here: if the LLs said (or implied) "we don't have a deposit" that is very different to "The former LL never passed us the deposit he took" (or similar)

artful's mention of "Did they serve s3 and s48 notices on tenants when becoming owners?" is another trap they may have fallen into.

However provided the previous LL registered the deposit AND it remained registered, then the T cannot claim the 3 x penalty. Have you checked?

This thread may also enlighten........:

https://forums.moneysavingexpert.com/discussion/5180214/tenancies-in-eng-wales-guides-for-landlords-and-tenants/p1

bobbstar21

Guys I do appreciate the help but it is outside the scope of what I am asking.

The court dismissed the claim due to the deposit info not being included. 

The matter is now being handled with new solicitors - all the notices have been applied for, the deposit sorted, and so on.

I am asking if we have any reasonable shot at claiming the fees back from the previous eviction specialists in court. My uncle specifically said the former landlord took a deposit, not him, and on that basis the evictions specialist said the deposit info does not need to be included. My uncle signed the possession form with the depsoit not included per the eviction specialists comments.

They are the specialists, if they're saying it doesn't need to be included, he has no reason to doubt them.

The deposit not being included is the only reason for the dismissal. I have asked the court and the solicitors he instructed for the court hearing and they both have confirmed this.

The only issue with trying to reclaim the fees from the evictions specialist is all conversation was done over the phone (I wasn't involved). I have made a SAR to retrieve all documents but they have been very difficult and suspect they won't provide it.

propertyrental

Without evidence of what advice was given, in what context and/or who said what in conversation, you will struggle.

Bookworm105

bobbstar21 said:

I am asking if we have any reasonable shot at claiming the fees back from the previous eviction specialists in court. My uncle specifically said the former landlord took a deposit, not him, and on that basis the evictions specialist said the deposit info does not need to be included. My uncle signed the possession form with the depsoit not included per the eviction specialists comments.

no your relatives do not have a reasonable chance as it is all their words v specialist's words. 
Have relatives been given a flat refusal of a refund when they asked for it. or are you just jumping straight into legals??

Given what you say about specialist T&C placing responsibility on the customer to communicate details to them, then I think artful's comments about lack of training and thus failing to communicate relevant info would feature as part of any MCOL defence they try. That said the court is normally sympathetic to the claimant if the defendant is a company, but in your case I doubt anyone could say the odds are better than 50/50