Is a Full Months Rent Payable Following Forced Eviction Part Month?

SanMiguel80

silvercar said:

The deposit, which may be equivalent to 8 weeks rent,  isn’t actually for 8 weeks rent, it can be used against damage to the property.  Also, since 2019, the maximum deposit is 5 weeks rent.

This was not a deposit in the normal sense, but an alternative deposit scheme where the tenant pays a one off non-refundable fee plus an annual charge (a kind of insurance policy instead). The LL then submits end of tenancy charges for rent and other charges etc. and if they agree the LL gets paid and the company pursues the tenant for rembursement which they did and was paid. In this case the rent element exceeded the maximum for their payout policy (8 weeks rent) to the LL and therefore other charges were not awarded. I have this in writing.

GDB2222

Does the guarantee cover any damage as well? 

If there was damage to the property worth 8 weeks rent, then you can’t insist that they allocate the 8 weeks against the outstanding rent, as they would just charge you for the damage instead. 

However, you can reasonably insist that they account for that 8 weeks rent, and scrutinise what expenses they have set it against. 

SanMiguel80

GDB2222 said:

Does the guarantee cover any damage as well? 

If there was damage to the property worth 8 weeks rent, then you can’t insist that they allocate the 8 weeks against the outstanding rent, as they would just charge you for the damage instead. 

However, you can reasonably insist that they account for that 8 weeks rent, and scrutinise what expenses they have set it against. 

Many thanks for your reply.

There were no charges for damage, the tenant did keep the flat in very good condition as evidenced in the inspection reports (one thing I can praise him for). The LL submitted charges for approximately £7500 in rent plus other charges for redecoration, cleaning, rubbish removal, cleaning and locks change. The tenant appealed against these charges which then went to an adjudicator panel. The panel found in the LL favour and awarded the rent element to the LL. In their report it clearly states that as the total claim for their cover had been reached with the rent claim, they were 'unable to assess any further claims made by the landlord'. Therefore it appears reasonable to me that the £1700 that has been paid to this alternative deposit company and this amount which has been paid out to the LL should therefore be deducted from any claim for rent to myself and which was not declared to the court.

The LL has not made any claim to me for these other charges (approximately £3000). I spoke with the CAB about a year ago, they informed me that a court will usually only listed to claims for rent arrears in these type of cases and will usually dismiss claims for other charges, which could be why they were not submitted by their sols. I don't know if they will submit these charges at a later date or not. 

saajan_12

SanMiguel80 said:

saajan_12 said:

I can't see the S13 invalidating the entire tenancy or guarantee. At most, the S13 would just be invalid and ignored, with the obligations under the tenancy agreement remaining in force as if there was no S13. Arguably that would include the RPI based increase which was in the agreement you saw ahead of signing the deed. That's assuming the rent increase clause was specific, not a "LL may increase, no more than RPI, if they feel like it". 

Re the partial months rent -
Per Section 40 of the Deregulation Act 2015, if the tenancy is terminated mid month as a result of a S21 notice and if the tenant paid the full month's rent upfront, then the LL would have to pay back the pro rata rent for the days the tenant wasn't there. 

In this case, the tenant hasnt' paid upfront, but I'd expect you could argue the LL's damages don't include the rest of the month, as if all parties had acted correctly, the most they'd have received is the rent upto the date the tenant vacated. Also to confirm, it was a S21 not a S8 notice given the rent arrears?

..

It was a S.21 no fault eviction I have been informed, which I don't have a copy of as the tenant and the LA have refused to give me a copy!

Ok, then in answer to your original question, I'd use the argument I mention above - link of the legislation below:
https://www.legislation.gov.uk/ukpga/2015/20/section/40#:~:text=40Repayment of rent where tenancy ends before end of a period

SanMiguel80 said:

GDB2222 said:

Does the guarantee cover any damage as well? 

If there was damage to the property worth 8 weeks rent, then you can’t insist that they allocate the 8 weeks against the outstanding rent, as they would just charge you for the damage instead. 

However, you can reasonably insist that they account for that 8 weeks rent, and scrutinise what expenses they have set it against. 

Many thanks for your reply.

There were no charges for damage, the tenant did keep the flat in very good condition as evidenced in the inspection reports (one thing I can praise him for). The LL submitted charges for approximately £7500 in rent plus other charges for redecoration, cleaning, rubbish removal, cleaning and locks change. The tenant appealed against these charges which then went to an adjudicator panel. The panel found in the LL favour and awarded the rent element to the LL. In their report it clearly states that as the total claim for their cover had been reached with the rent claim, they were 'unable to assess any further claims made by the landlord'. Therefore it appears reasonable to me that the £1700 that has been paid to this alternative deposit company and this amount which has been paid out to the LL should therefore be deducted from any claim for rent to myself and which was not declared to the court.

The LL has not made any claim to me for these other charges (approximately £3000). I spoke with the CAB about a year ago, they informed me that a court will usually only listed to claims for rent arrears in these type of cases and will usually dismiss claims for other charges, which could be why they were not submitted by their sols. I don't know if they will submit these charges at a later date or not. 

Sure, that might reduce the LL's damages and hence what the LL can claim from you, but surely the alternative deposit company would just claim what it cost them from the tenant / you? Unless you're hoping that goes just to the tenant..?

Also the LL can claim property damages from tenant & guarantor, as you're guaranteeing the overall tenancy not just the rent amount. 

silvercar

SanMiguel80 said:

GDB2222 said:

Does the guarantee cover any damage as well? 

If there was damage to the property worth 8 weeks rent, then you can’t insist that they allocate the 8 weeks against the outstanding rent, as they would just charge you for the damage instead. 

However, you can reasonably insist that they account for that 8 weeks rent, and scrutinise what expenses they have set it against. 

Many thanks for your reply.

There were no charges for damage, the tenant did keep the flat in very good condition as evidenced in the inspection reports (one thing I can praise him for). The LL submitted charges for approximately £7500 in rent plus other charges for redecoration, cleaning, rubbish removal, cleaning and locks change. The tenant appealed against these charges which then went to an adjudicator panel. The panel found in the LL favour and awarded the rent element to the LL. In their report it clearly states that as the total claim for their cover had been reached with the rent claim, they were 'unable to assess any further claims made by the landlord'. Therefore it appears reasonable to me that the £1700 that has been paid to this alternative deposit company and this amount which has been paid out to the LL should therefore be deducted from any claim for rent to myself and which was not declared to the court.

The LL has not made any claim to me for these other charges (approximately £3000). I spoke with the CAB about a year ago, they informed me that a court will usually only listed to claims for rent arrears in these type of cases and will usually dismiss claims for other charges, which could be why they were not submitted by their sols. I don't know if they will submit these charges at a later date or not. 

All that means is that the deposit didn't even cover outstanding rent, so there was no need for anyone to look at the other charges as there wasn't any money in the pot to cover them. It doesn't mean that the other charges aren't owed- they haven't been assessed.

GDB2222

“ 1. The Guarantor(s) will indemnify the Landlord(s) in respect of any losses incurred by the Landlord(s) as a result of any breach of the terms of the Tenancy Agreement on the part of the Tenant(s).”

So, this includes any repairs required by reason of damage in excess of fair wear and tear. So, in effect, the LL should be suing you for repairs Plus rent arrears less £1800. You should be disputing the repairs element and putting the LL to proof that the damage was not fair wear and tear. You should ask for copies of quotes received, etc. 

You said that you want to make an offer to settle. Do make sure that that is a Part 36 offer, ie it complies with CPR part 36. Also, make it reasonably attractive, rather than the absolute bare minimum that the court could possibly award. 

At the same time, you want to lever your (meagre) advantage as a litigant in person in what is hopefully the small claims track by making them prove their case. Once they realise that they are likely to have £K irrecoverable costs taking this to court, they are more likely to be interested in a reasonable settlement. 

Unfortunately, litigation is a high risk business, as you get committed before you see all the evidence. Personally, I find it stressful, so I am keen on settling as early as possible. 

SanMiguel80

GDB2222 said:

“ 1. The Guarantor(s) will indemnify the Landlord(s) in respect of any losses incurred by the Landlord(s) as a result of any breach of the terms of the Tenancy Agreement on the part of the Tenant(s).”

So, this includes any repairs required by reason of damage in excess of fair wear and tear. So, in effect, the LL should be suing you for repairs Plus rent arrears less £1800. You should be disputing the repairs element and putting the LL to proof that the damage was not fair wear and tear. You should ask for copies of quotes received, etc. 

You said that you want to make an offer to settle. Do make sure that that is a Part 36 offer, ie it complies with CPR part 36. Also, make it reasonably attractive, rather than the absolute bare minimum that the court could possibly award. 

At the same time, you want to lever your (meagre) advantage as a litigant in person in what is hopefully the small claims track by making them prove their case. Once they realise that they are likely to have £K irrecoverable costs taking this to court, they are more likely to be interested in a reasonable settlement. 

Unfortunately, litigation is a high risk business, as you get committed before you see all the evidence. Personally, I find it stressful, so I am keen on settling as early as possible. 

The LL has not submiited any claim to myself for other charges therefore I have nothing to dispute with them on this matter. My settlement will request that it will be in full and final settlement in relation to all matters relating to the tenancy if accepted. The alternative deposit company have stated that the case has been claosed as the debt (£1700) has been settled with them. My offer will be around 57% of their claim.

I had to look up part 36 CPR! Apparently Part 36 is not applicable to claims allocated to the small claims track. As their claim is below is below £10,000 it is likely to be allocated to the small claims track. I have taken the rest of your comments on board, but thanks for your time to reply.

Can You Make A Part 36 Offer In Small Claims?

SanMiguel80

silvercar said:

. 

All that means is that the deposit didn't even cover outstanding rent, so there was no need for anyone to look at the other charges as there wasn't any money in the pot to cover them. It doesn't mean that the other charges aren't owed- they haven't been assessed.

The alternative deposit company have closed their case so they will not be pursuing me for any other charges. The LL did not include these other charges in their claim to me as guarantor for unkown reasons, but this would have pushed their total claim to myself to over £10k which would have likely meant that this case would not have been processed as a small claim by the court. As I have said earlier, I was informed by the CAB that judges often dismiss other claim charges in court and will only deal with the rent element of the claim (I don't know how true this is) and could have risked the case being thrown out altogether if they did. 
In theory, there is probaly nothing to stop the LL coming after me for the other charges after the rent case has been concluded. But my first line of defence will be 'why didn't they submit this with their earlier claim' and therefore waste the courts time, in addition to myself disputing most of the charges as excessive. My settlement offer will include a clause that no further action will be taken against myself

Time will tell I guess. 

GDB2222

Bear in mind that the case hasn’t been allocated yet.