Overseas Landlord

[WendyN]

Hi chaps,
here I am again. OK, so we sent an LBA to the company director, and copied in the local office. Got a letter back from the local office saying that they had sent a copy of our letter to the landlord in Thailand for his instructions, and his power of attorney (thought he didn't have one any more ?!). Wrote back saying that they had only been copied in as a courtesy, and that we were taking it up with head office.

Sent another reminder after 14 days, and eventually had the following offer: of our total claim £1000, plus costs plus interest, they offered us £550 plus £50 as a goodwill gesture. We wrote to them to turn this offer down, and re-served the papers on them 11/09/06.

Strangely, head office then sent us two cheques for £300 yesterday anyway, so we can't decide whether they crossed in the post, or whether they are planning to defend the claim by saying that they have paid us off. I'll be drafting a letter over the weekend saying that we accept the money only as part payment for the claim and will still be taking them to court for the rest... So again, will keep you posted of progress! I think we must be on the right track though!

13/04/05 - One month's rent promised by landlord (£450)
04/06/05 - Damages deposit retained by landlord on leaving property (£550)
05/06/06 - MCOL claim served on overseas landlord (£1000 + interest + costs)
01/08/06 - Letter Before Action sent to his UK estate agent
11/09/06 - re-served papers on UK estate agent

[Nightmare4banks]

Hi all!

WendyN,I have two questions for you:

1.Has the agent stated the reason behind offering you a lower amount?
2.Do you have it in writing to confirm the offer of one months rent for compensation for the disrepair?

Also,please note:

a.In my view you should get more that just £50 because it depends on how long you endured the disrepair,the level of this disrepair and most importantly what remedies did the landlord or agent carry out make your living conditions better.At the end of the day,judges get very annoyed when landlords/agents flout the laws and do not care about their tenants.

b.Normally,what happens is a judge would see to refund part weekly rent payments to you after examining all evidence of the disrepair etc.This is called "deminition in rent value".All this means is that when you were paying £450 per month for the flat it had a rental worth say of only £400 due to the disrepair.If you suffered the disrepair for say 1 year,you should receive the following amount:

Deminition in Rent for One Month:

£450 - £400 = £50

Total Deminition in Rent/Compensation:

£50 x 12 = £600

It would probably be calculated from the date the landlord/agent was notified - it is good that you sent the letter as I read in your previous post.Again,only the judge can decide the exact date to use in the calculation.

c.Send back the cheques by recorded delivery and tell the agent:

I was hoping that that you would agree to settle amicably before any hearing,I would be more than happy to do this so I will then notify the court that my claim against you has been withdrawn.

d.In the event of getting paid,DO NOT withdraw your claim until you receive cleared funds from the agent.Only at this stage should you contact the court to withdraw your claim.

Anyway,I hope you find this information useful.

If you have questions,just ask.

Keep us posted.

All the best!

[WendyN]

Hello,

1. No, they just said that if we did take the landlord to court, he would probably counter sue - although with what evidence, remains to be seen, as no final inventory check was taken.
2. Yes, we have it in writing from the landlord in a letter from April 2004. This is why we are seeking more than £50.

Wendy

[Nightmare4banks]

Hi all!

WendyN,in reply to your last post:

1.You state that the landlord wants to countersue.As a part of the disclosure process in civil court rules,your opponent has the obligation to state clearly the reasons behind the counterclaim backed up with evidence in the form i.e.receipts,sworn statements etc etc.

2.If your opponent does not come up with with goods i.e. the evidence whatever it may be you could request from the court that the courterclaim has no basis and therefore should be struck out accordingly and the reasons are:

a.To save both parties time and money.

b.To save The Honourable Court valuable time that could be used in dealing with other really geniune cases.

If and when the time may arise,just let me know so I can word the above in a more concise manner for you.

3.It is good that you have the written evidence regarding the amount from the landlord,so there is nothing for you to worry about here.You will need to send a copy of this letter to the court and the landlord/agent at the appropriate time.

I hope you find this information useful.

If you need any more help,just ask.

Keep us posted.

All the best!

[WendyN]

Hello,

on advice from MCOL, as we had to change the defendants address from the landlord to the agents anyway, we accepted the agent's offer as a partial refund, and amended the court documents accordingly, paying ~£30 to make the changes. It has taken us three months to get it right, what with the papers being sent back regularly because we hadn't underlined something or done in red pen... Then just before Christmas we were told that the papers had gone to the district judge for permission to amend them - which was news to us, as they had cashed our cheque anyway! Then today we received the following:

BEFORE DISTRICT JUDGE

SITTING AT NORTHAMPTON COUNTY COURT

ON 30TH DECEMBER 2006

WITHOUT A HEARING

REASON: CLAIMANT APPLICATION TO AMEND THE DEFENDANT NAME, EXTEND THE CLAIM, AMEND THE PARTICULARS OF CLAIM AND RE-SERVE THE CLAIM.

IT IS ORDERED THAT:-

• APPLICATION IS REFUSED.
• IF APPEARING THAT THE CLAIM IS BEING MADE AGAINST A LETTING AGENT RATHER THAN THE LANDLORD, THE CLAIM HAS NO REASONABLE PROSPECT OF SUCCESS.

A) IF THE DEFENDANT WAS AN AGENT; END.
B) IF THE DEFENDANT IS A DIRECTOR OF A COMPANY AGAINST WHOM ANY CLAIM IS, SEND TO COURT.

NOTE: a party affected by the Order may under Rule 3.3 (5) apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.3 within 14 days of service of this Order.

I think the whole court system is biased towards our landlord and the estate agents. What right to they have to decide whether it is winnable or not?! Surely that is our risk to take? What can we do now? Please help.

[Nightmare4banks]

Hi all!

WendyN,in reply to your last post and in my view:

1.The claim should be made against the agent in the event of the absence of the landlord.The landlord has a duty to hire an agent if he resides abroad.

2.This seems abit strange that the judge has thrown out your case against the agent.However,judges are also very fussy about penalising people who should not be penalised.It is a balancing act rather than an act of being biased.

3.The section regarding issuing the claim against a director is a bit unclear.I would suggest that you contact the court to get a clarification and highlight the fact that the landlord does not reside in the UK and therefore you cannot issue a claim against him personally and it was the agent that you had dealt with throughout the tenancy.

After you have contacted the court post the response here so we can see how to possibly assist you further.

[WendyN]

thanks nightmare4banks, will contact them today.

[WendyN]

Hi all,

well MCOL were pretty useless; none of their staff are legally trained so they couldn't tell me much, and denied that they had given me any advice in the first place.

However, they did give me the number for Community Legal Services: 0845 345 4345 (Housing Section: 0845 456 6957) who were very helpful.
They can provide free legal advice in person if you qualify for it, and up to 30 mins free legal advice on the telephone even if you don't.

The lady I spoke to said that if you have the landlord's address, usually you can't make a claim against the agents, as it would need to be the landlord. However, as the landlord lives in Thailand, she recommended that I put his address and his c/o address (his registered UK address; i.e. the estate agents) in that section of the form, and write a letter stating that this is the case. As I need to do this within 14 days of the deadline, I will write a letter today.

Why they couldn't just put that in the letter I don't know...!

WendyN

[WendyN]

OK, here it is:

Dear Sir / Madam,

Re: Claim No.

I refer to your undated letter sent to us this week, regarding our request to change parts of our claim. This application was refused, without a hearing, on 30th December 2006.

As you will see from our paperwork, we initially made a claim against our landlord’s power of attorney; however she developed an illness which meant that she could no longer fulfil this function.

The landlord himself lives in Thailand; and is therefore legally obliged through the Landlord and Tenant Act 1987 to have a registered address in England or Wales.

Section 47, Landlord and Tenant Act 1987

This legislation requires that every demand for rent carries the address of the landlord and if that address is outside England and Wales the demand for rent must also carry an address in England and Wales where notices in proceedings can be served on the landlord.

Failure to comply with section 47 means that any portion of the rent which is attributable to service charge is not lawfully due. The address of the landlord on such a written demand could be the landlord’s office address, rather than home address.

Section 48 Landlord and Tenant Act 1987

This requirement is very similar to section 47 but with a subtle difference – it requires that the tenant must be given an address in England where notice of proceedings can be served on the landlord – it follows that this address does not have to be that of the landlord.

Until section 48 of the Landlord and Tenant Act 1987 is complied with rent is not lawfully due.

All of our legal and financial dealings have therefore been with our letting agent: (names removed to protect the guilty). Please see attached documents for confirmation of this.

We would like to appeal against the decision of the District Judge in this instance, as we are only able to make a claim against our landlord through his letting agent in this country; and this is his registered address in the UK for notice of proceedings.

I therefore attach a new N244 for addition to our N1 claim form, with more specific address details, and with calculations of interest. I have already sent, and you have already cashed, a cheque for £35 to cover the cost of making these amendments.

I hope that this is sufficient to make these amendments, and look forward to being able to reserve papers as soon as possible.

Yours sincerely,

WendyN

[Nightmare4banks]

WendyN,in reply to your last post.

1.This seems to be the best and really ONLY thing you can do.

2.There is nothing wrong with complaining to the Court Manager about this matter.As you relied on MCOL folks and the issue has seemed to become a mishmash.Actually you could also complain to the Court Manager regarding the judge's decision about the agent.This is because he made a mistake
and overlooked the fact that the landlord resides abroad.
You will probably be asked to send a fee and your claim would be reviewed by a higher ranking judge.This can only be done in two specific circumstances( and within certain time limits - I think it maybe 14 days but I am not 100% sure.):

a.The made error in a point of law.
b.The judge did not do things in a fair and proper manner in the hearing - this would not apply to your particular case.A good example of this would be one party has his/her/their version of the events dealt with but the other does not.



Anyway,I hope you find these points useful.

[catiekitten]

Hi Wendy,

Sorry to hear of the problems you're having. You might find this thread on moneysavingexpert.com helpful. It's very lengthy, but try and bear with it, as the problem has many similarities to yours. Please help re flat deposit - MoneySavingExpert.com Forums

Wishing you lots of luck,
Cate

[WendyN]

Hello all,

reply received from MCOL:

"WITHOUT A HEARING

REASON: Claimant's application to appeal the District Judge's order

IT IS ORDERED THAT:-

If the application is made as I suspect under 3.3 (5) complete application under part 23 and complete part C with a statement of truth. "

I take it that this just means provide more details, with the extra paperwork we have?

WendyN

[WendyN]

Hi all,

we have completed a 'statement of truth'; which is apparently:
Statement of Truth: A statement made by a person or their lawyer in a civil case that he or she believes that the contents of a document are true. Statements of truth replace affidavits. Deliberately providing false information in a statement of truth is contempt of court. (http://www.compactlaw.co.uk/legal_glossary/s/statement_of_truth.html)

so here it is! I have stated at the bottom that we can provide extra info if needed, in case we haven't answered what they need. Feedback gratefully accepted!

WendyN

"Myself and my partner were resident at the property ..., under the Estate Agency of ..., from 5 July, 2002 to 4 June, 2005. Our Landlord, ..., is resident in Thailand, so he is legally obliged through the Landlord and Tenant Act 1987 to have a registered address in England or Wales.

All of our legal and financial dealings have therefore been with our letting agent, ... Ltd (Registered Head Office: ...; Legal & Finance Office: ...; Local Office: ...). A deposit of £550.00 upon taking residency, and all subsequent rent monies were also paid to the Agents. Please see attached documents for confirmation of this.

We have also had dealings with the Landlord’s Power of Attorney, ..., but she has stated that she is unable to deal with court proceedings on his behalf due to illness. Confirmation of this is also attached.

During our occupancy, there were several problems with the property which remained unresolved upon our exit. To compensate us for these, an offer of ‘one month’s rent’ (£450.00) was made to us in writing on 13 April, 2005, following a meeting with the Landlord on Monday 11 April, 2005. Confirmation of this is also attached. This amount was accepted by us with the Agent on 3 June, 2005. We left the property in good and clean condition on 4 June, 2005, and can provide photographic evidence to prove this.

Upon occupancy of the residence we signed a copy of the inventory check in the presence of the Agents, as we were contractually obliged to do so. However, upon vacating the property, an exit inventory check could not be competed because occupancy of the residence had been taken by a third party between the time of our exit and the time of the meeting to carry out the exit inventory check. Due to the problems in the property, workmen had entered, and had been assigned to carry out repairs. Furniture had been moved and stored in the small bedroom, carpets had been taken up, the curtains were taken down and used as dust sheets, and bags of plaster, plasterboard and tools had been brought into the property. This was all the more disturbing, given that all three existing sets of keys were already in the possession of myself, my partner and the Estate Agents at this time; so neither we nor the Agents had any idea how they were able to enter the premises. For this reason, it was agreed that an inventory check could not be carried out; nor were we asked or expected to sign an exit inventory document.

Despite continued correspondence with our Agents and with the Landlord’s Power of Attorney, both parties refused to return any part of the £1,000.00 owed to us. They were unable to provide any reasonable justification for this. We were therefore forced to make a claim for this amount through the small claims court one year later, on 5 June, 2006; against the Landlord’s Power of Attorney.

We are now applying to make changes to this claim.

As the Landlord’s Power of Attorney has now developed an illness, she has stated that she is unable to deal with these proceedings; we are therefore changing the defendant of this claim to the Landlord, c/o his Estate Agents and registered UK agents, ....

Also, on notifying the Agents of this, and fifteen months after leaving the property, ... refunded us £600 on 13 September, 2006, towards the cost of our claim. However, given that this amount does not cover the full amount agreed, and given that the time period elapsed is now nearly two years, we would still like to claim the outstanding amount plus interest.

I hope that this information is sufficient for these purposes. Further information or evidence can be supplied on request.

[cherryredcutie]

Hi Wendy,

I have just read your thread and wondered how the whole thing ended? I am in a similar situation and need to sue my landlord, but the agents are not giving out his address. I spoke to Shelter and they said I should sue the estate agency, did the court accept this in the end in your case?

Kind regards,
cherryred

[WendyN]

Hi CherryRed,

I'm afraid to say that it still hasn't been resolved - we are off to court on Tuesday 16th October - not to get it sorted out, but to see if we can change the name of the person we're suing changed from the landlord c/o his mums address to the landlord c/o his estate agents address. These things take so long... but we are hoping it will all get sorted in the end.

In your case however - they are not allowed to withhold the landlord's address from you, you are legally entitled to it. In fact, if they don't provide you with it, no rent is lawfully due. So you tell them -if they won't give you the LLs address, you want all the rent you paid back. I would advise you to do a bit of background research on the act below; read your contract thoroughly... and then give them hell. Good luck!

See weblink here:

Landlord regulations - Residential Landlord

"Section 47, Landlord and Tenant Act 1987

This legislation requires that every demand for rent carries the address of the landlord and if that address is outside England and Wales the demand for rent must also carry an address in England and Wales where notices in proceedings can be served on the landlord.

Failure to comply with section 47 means that any portion of the rent which is attributable to service charge is not lawfully due. The address of the landlord on such a written demand could be the landlord’s office address, rather than home address.
Section 48 Landlord and Tenant Act 1987

This requirement is very similar to section 47 but with a subtle difference – it requires that the tenant must be given an address in England where notice of proceedings can be served on the landlord – it follows that this address does not have to be that of the landlord.

Until section 48 of the Landlord and Tenant Act 1987 is complied with rent is not lawfully due."

[WendyN]

PS: You may also wish to have a chat with Community Legal Services Direct: 0845 456 6815 - the first half hour of advice on the telephone is free, and if you are in receipt of certain benefits the rest is free too. They may be able to advise on the whole LL @ his home address vs. LL @ estate agents address thing.