Landlord small claims court action

twink22 · 29 November 2012 at 1:05AM

Hi all,

I'm after some advise regarding our landlord starting court action against me and my husband due to unpaid rent.

We signed a tenancy agreement to rent a house and garage beginning in May for 18 months, on the day we moved in we found that the garage is full of his things and we wouldn't be able to use it as we had been expecting, we specifically wanted a house and garage and wouldn't have rented it had we known this. We asked the landlord for the garage to be cleared on the day we moved in, he said that he would sort it but hasn't. We rent through an agent and have been requesting it be cleared since May, they have stated that they have asked him to clear it and he is still refusing.

The AST agreement mentions the garge briefly, and the advert we have for the house states includes garage, the agent also agrees that we rent the garage.

We have given them 6 months to sort the problem, keeping in touch with the agent regularly about it, and having gotten nowhere we finally wrote to the agent advising that we would decrease the rent by the average price of a garage in the area, giving them time to respond. We have tried to use the Lee Parker v izzet ruling as a guide to decreasing rent payment, however as that is for repairs it is not fully applicable.

The landlord/ letting agent have now threatened us with court action if we don't pay the outstanding rent immediately, stating we will get a CCJ against our name and it will harm our credit rating. However having looked into this if we lose we can pay within 28 days and get it removed from the register, does anyone know if this will still affect our credit rating?

We want to fight this but want to know if we should pay the outstanding rent and then take him to the small claims court for compensation or if we should counterclaim his court action, we have the funds to pay the full amount but don't think we should pay rent for something we don't have use of. Also if we take the court action would it be for the full 18 months worth of rent deductions or just the amount to date?

Any help appreciated. Thanks

Wywth · 29 November 2012 at 10:31AM

twink22 wrote: »

Hi all,

I'm after some advise regarding our landlord starting court action against me and my husband due to unpaid rent.

We signed a tenancy agreement to rent a house and garage beginning in May for 18 months, on the day we moved in we found that the garage is full of his things and we wouldn't be able to use it as we had been expecting, we specifically wanted a house and garage and wouldn't have rented it had we known this. We asked the landlord for the garage to be cleared on the day we moved in, he said that he would sort it but hasn't. We rent through an agent and have been requesting it be cleared since May, they have stated that they have asked him to clear it and he is still refusing.

The AST agreement mentions the garge briefly, and the advert we have for the house states includes garage, the agent also agrees that we rent the garage.

We have given them 6 months to sort the problem, keeping in touch with the agent regularly about it, and having gotten nowhere we finally wrote to the agent advising that we would decrease the rent by the average price of a garage in the area, giving them time to respond. We have tried to use the Lee Parker v izzet ruling as a guide to decreasing rent payment, however as that is for repairs it is not fully applicable.

The landlord/ letting agent have now threatened us with court action if we don't pay the outstanding rent immediately, stating we will get a CCJ against our name and it will harm our credit rating. However having looked into this if we lose we can pay within 28 days and get it removed from the register, does anyone know if this will still affect our credit rating?

We want to fight this but want to know if we should pay the outstanding rent and then take him to the small claims court for compensation or if we should counterclaim his court action, we have the funds to pay the full amount but don't think we should pay rent for something we don't have use of. Also if we take the court action would it be for the full 18 months worth of rent deductions or just the amount to date?

Any help appreciated. Thanks

You say you signed an 18 month rental agreement that started last May? Then you still have another 12 months to pay. Pay up!

If you believe there is a legal dispute with the Landlord that cannot be resolved amicably, then sue him.

twink22 · 29 November 2012 at 1:15PM

Wywth wrote: »

You say you signed an 18 month rental agreement that started last May? Then you still have another 12 months to pay. Pay up!

If you believe there is a legal dispute with the Landlord that cannot be resolved amicably, then sue him.

We did sign an 18 month agreement but for a house and garage, we are still paying rent for the house but have deducted the garage portion of the rent as aware not getting it. What I want to know is if it would be better for us to counter claim his claim as Shelter have advised us, or start our own claim for compensation instead.

Wywth · 29 November 2012 at 2:03PM

twink22 wrote: »

We did sign an 18 month agreement but for a house and garage, we are still paying rent for the house but have deducted the garage portion of the rent as aware not getting it. What I want to know is if it would be better for us to counter claim his claim as Shelter have advised us, or start our own claim for compensation instead.

If you have sought advice from Shelter, I don't think the CAB will offer you different advice, other than to suggest you continue to follow the advice Shelter have provided you.

(I am surprised though that Shelter have advised you to continue to withhold rent due under a tenancy agreement

)

twink22 · 29 November 2012 at 2:44PM

I assumed that CAB would be able to give us a more legal answer to whether it would be better for us to raise our own claim or to counterclaim and if we lost the case would a CCJ be wipe off record if we pay it straight away? Shelter's advise was that we would have a good case if it went to court and that it would be quicker and cheaper to counterclaim but I don't know if this is the best way for us to go about it- this is a last resort, we have tried amicable discussions and offered to clear the garage ourselves but as its his stuff we cant just throw it away, we just don't think it's right for us to pay rent for something we can't actually use.

Wywth · 29 November 2012 at 3:49PM

twink22 wrote: »

I assumed that CAB would be able to give us a more legal answer to whether it would be better for us to raise our own claim or to counterclaim and if we lost the case would a CCJ be wipe off record if we pay it straight away? Shelter's advise was that we would have a good case if it went to court and that it would be quicker and cheaper to counterclaim but I don't know if this is the best way for us to go about it- this is a last resort, we have tried amicable discussions and offered to clear the garage ourselves but as its his stuff we cant just throw it away, we just don't think it's right for us to pay rent for something we can't actually use.

If you persist in not paying the rent, go to court and lose the case, then as long as you settle the judgement in full (which will be more than just the rent owed) in the allotted time then there will be no record of a CCJ being registered against you.

If you don't pay in full within the allotted time, but do pay in full later, the record of the CCJ should be marked as settled.

As for any effect on your future ability to rent, well in my experience word travels fast around the lettings agents in any town regarding tenants that don't pay.;)
Of course some landlords don't give too hoots about your previous credit history, not even asking for a reference from your previous LL. But then they tend to offer the types of property most good renters wouldn't even bother going to see, let alone agree to rent.

Again, therefore, I find it most odd that you imply Shelter are fully supportive of you not paying the rent lawfully due under the TA you agreed to. :cool:
(But I'm sure the advice you were given by Shelter regarding this is better than any I or the CAB can offer

)

shocky_2 · 29 November 2012 at 4:02PM

You need to check your tenancy agreement carefully to see if there is a "no deductions clause". The default position is that you are entitled to set-off a reasonable amount from your rent if the landlord is in breach of contract. However, many tenancy agreements have a clause which says you must pay the full rent without making any deductions. There is a strong chance that these clauses will be held unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 but you can't rely on that.

If your agreement has a "no deductions clause" then you are in breach of the agreement, and deducting for the garage is a very risky strategy because it would allow the landlord to terminate the lease for non-payment of rent: even if you have a valid counterclaim. Even if there is no such clause withholding rent is risky.

Personally I think the safest route would be to pay the full amount of rent and make it clear to the landlord that he had an obligation to provide you with vacant possession of the premises at the start of the lease, and unless he offers you compensation and removes his stuff you will sue him in small claims court. Make sure this all goes in writing. If he still does not remove his stuff then you issue a claim for the average price of a garage in the area over six months and a declaration that the landlord will be liable for that price going forward until he clears his stuff. You do not need a lawyer for this as long as you are careful to explain everything clearly and provide proper evidence (i.e. photos of the garage).

Alias_Omega · 29 November 2012 at 4:12PM

Did you know...

If the property is Part-Furnished, the Landlord would have to pay Council Tax on the property. Usually with 10% discount when empty.

I wonder if the landlord has informed the local council correctly about the state of the property when the property was in-between lets..

PS - You can also post this thread up on the Landlord Zone Forum. A forum for Landlords..

http://www.landlordzone.co.uk/forums/forum.php

dt3887 · 29 November 2012 at 4:17PM

im positive i seen a very very similar thread not too long ago....... just not with the court side of it.

Wywth · 29 November 2012 at 4:30PM

Alias_Omega wrote: »

Did you know...

If the property is Part-Furnished, the Landlord would have to pay Council Tax on the property. Usually with 10% discount when empty.

I wonder if the landlord has informed the local council correctly about the state of the property when the property was in-between lets..

PS - You can also post this thread up on the Landlord Zone Forum. A forum for Landlords..

http://www.landlordzone.co.uk/forums/forum.php

Our council allows 6 months between rentals for landlords with unfurnished properties. Unfurnished is defined as having insufficient furnishings to support day to day living.

So no CT for up to 6 months, and only if the property remains empty thereafter does CT begin to become liable, and then at 100%,
A tenant needs to have paid (or at least have been liable for) CT for at least a month before the exemption can start again.

twink22 · 29 November 2012 at 5:42PM

Thank you youngsolicitor that's the kind of thing I was hoping CAB would be able to tell me.

For the record I'm not saying that Shelter advised us to withold rent, they advised us after we'd done it and said it would be quicker and cheaper for us to continue witholding and make a counterclaim.

We aren't bothered about references etc as we will be buying a house next year which is why we are more concerned with the ccj issue. Shelter have advised us on breaching the AST and we will never be 2months rent in arreas that a s.8 would require.

I'm still not sure on the amount we would claim for though. If we claim for 6months by the time we get to court we would have lost out on more rent paid for something we aren't getting, would we have to claim again???

Landlord small claims court action

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