I propose to state the following in my N244 application:
1. I did not receive a notice from my landlord or from the landlord's representative regarding the tenancy agreement. <address named on the Order> is not - and has never been - my primary place of residence. My primary place of residence is <my actual address>. My wife and three-year-old daughter currently reside at <address named on the Order>.
2. I received no correspondence from the court or from my landlord or the landlord's representative in relation to the court hearing and was only aware of it when receiving the judgment on Saturday 12th May.
3. All monies due under the terms of the tenancy have been paid to the letting agent by standing order (Bank, account #) as per the terms of the tenancy (page #).
4. My tenancy is for a fixed period of two years and therefore remains inside the six month statutory protected period.
Well, here we have a problem, because the LL is entitled to serve papers on the actual address, he is not obliged to serve them elsewhere unless you put him on notice to do such at the outset of the tenancy. Does the LL know your wife and child are living in the property? Was your wife named on the tenancy agreement? Is there a clause disallowing children? Are you certain your wife did not receive the paperwork?
The important information you missed was a) telling me that you did not live at the property and b) not telling me that your wife and child lived there.
Yes, both the letting agent and the landlord are aware that my wife and child are living in the property as it was rented for that specific purpose.
You do raise one interesting point however: my wife is not named on the tenancy agreement. I did not request that she be named and the landlord did not ask that she be named on the tenancy agreement.
I collect all my post bi-weekly when I am in the UK and have done for many months. There has been no correspondence from the letting agent, the landlord or indeed from anyone else.
Moreover, both the landlord and the letting agent have my contact numbers and email address. No communication in any form has been made since the signing of the tenancy.
That said, I'm unsure how this changes the fact that I am the named tenant, that I have paid all rental monies due under the tenancy agreement and that the Order for Possession names me as the defendant?
It changes things because the reason for possession may be any number of other breaches of the tenancy agreement, and clearly perhaps, one that you may not be aware of or that your wife hasn't shared with you. It doesn't change that you are appropriately named on the judgment as the defendant, or that you have proof you have paid monies due. The issue here may not be rent arrears.
Could she have disposed of any letters arriving that were addressed to 'the occupier'?
My suggestion would be that you go to the court tomorrow and obtain copies of the claim form and the particulars of claim (it is essential you have BOTH), and then post back so that more specific advice can be given in relation to the actual claim that was against you.
A one day delay in making your set aside application should not cause too many difficulties and it's better that you know what the claim against you is.
Section 10 = tock the box for attached witness statement, then have a look at this guide http://www.consumeractiongroup.co.uk...r-repossession you will see examples of how to set out a witness statement to go with an N244. Anything you are affixing to back up your statement should be given an Appendix number and referenced in the statement.
Half the guides I read suggest ticking either 'the statement of case' or 'the evidence set out in the box below'.
Surely it's best to tick 'statement of case' - which is my defence - then write 'see documents attached' in the box below?
I don't have an awful lot to write as the documents I will be attaching are, in effect, my case.
Space Cadet UK:
The letting agent have told me they will not discuss my tenancy and that I should speak direct with the landlord - an offshore company with a mailbox address! The phone number I have been given is never answered. Judging by the fact I have had no contact with them in any form since signing the tenancy, they must have received my payments!
Okay, well don't panic, if it is simple rent payments that are alleged to be missing, and you have concrete proof that you made these payments to the LL, then it will very easily be sorted out.
I see Ell-enn has responded regarding help with the N244 - she's absolutely fabulous with assisting people with that (I don't do paperwork), so make sure you follow her instructions properly.
You must make a set aside application - and not a stay application. The PO, according to you, should never have been made because you do not owe any rent.
I am always quite surprised when court clerks' give their opinions about legal issues - none of them are qualified to do so, and generally have no clue what is what. It is in no way, shape or form, unusual for a warrant of execution to be filed immediately following a forthwith possession order - in fact, it is the usual course of action, otherwise there is no point to a forthwith order. Don't worry about that though - it's largely irrelevant as your set aside application will automatically stay the warrant.
Your evidence should be reasonably straightforward. I think I listed the points in an earlier post. You did not receive the paperwork, you do not have rent arrears (provide the bank statements), and you believe the court would not have made the order it made if you had been present.
I'm in the South East. From everything I have read and the opinions given today, this seems to be a no-brainer. I certainly hope the Judge sees it that way.
Can I please get some clarification though vis-a-vis Section 10. One Solicitor I spoke with today told me categorically NOT to tick 'witness statement' and to select 'statement of case', then attach my rebuttal and supporting documents as per your earlier advice Lea.
I really don't want to make a mistake and lose this appeal on a technicality.
It's not an appeal - you are asking the judge to set aside the decision made on 7th May.
On the facts presented, the forthwith order would never have been made if you had been present at the hearing and if you had provided evidence that the rent had been paid. Your biggest issue is if they state that the payment details you have are not their details.
Oh, and to be on the safe side, you should include a request to the judge to suspend the warrant until your case has been heard...some courts will do this automatically, others will not, so to cover all the bases, make the request in your application.
Hi All, I have been going through the courts to gain possession of a room in a house from a non paying tennant, i had my court hearing yesterday and the defendant did not show up (he tried to adjourn hearing but his application was refused as he did not file a defence) anyway the judge gave me possession order and have received an "order for Possession Forthwith upon service of this order upon the defendant" does this mean i can start immediately to apply to the court for a baliff ? if so how long does this procedure take? Will the defendant be able to appeal and do you think he has any chance of success? any help appreciated.