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Lea_HTH

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Everything posted by Lea_HTH

  1. For the record it is not illegal to rent a room in a council property - the subletting clause in social housing tenancy agreements relates to subletting the whole of the property. If the tenant remains in occupation, even if only in one room, then taking a lodger is permitted. It is not cause, or reason, for the local authority to claim possession, nor would they obtain a possession order if they took it to court (would be struck out) - most local authorities are accepting of, and some encourage, their tenants to take lodgers in order to help pay rent. It is not necessary to declare such rent if it falls below a certain amount (which a deposit of £285 for the month would indicate it does if it is reflective of the monthly rent). The council tax reduction is another matter - claiming a single person discount could cause problems - but the likely request would be to pay the outstanding sum for the three/four months the OP was in occupation.
  2. Actually, late provision of the prescribed information does not render a s21 notice invalid, if the deposit itself has been protected - and there's mitigation to any claim brought by a tenant if all that was not provided was the PI. Don't rely on the s21 not being valid - doubtful any judge will see it as such, since whether the prescribed information was provided or not will come down to who the judge believes. There is good evidence to support the LL, in that the deposit was in fact protected in time and the tenancy agreement itself gives details of the scheme it is held in, and makes reference to the prescribed information.
  3. Re Shelter: they are right, according to the letter of the law, they are wrong because in practice what local authorities do is work according to whether or not you are officially homeless, as in NO ROOF OVER YOUR HEAD AT ALL - and that too is according to the law. Since it's the LA that will rehouse you, you have to follow what they say, not what Shelter say. I doubt that there are any local authorities who will rehouse anyone whilst they have another address that they are not legally obliged to leave.
  4. Landlord needs an N5 form, or N5B for accelerated proceedings - I'd suggest he use the latter, it's quicker. You and he need to agree together that there is no deposit, otherwise the claim will fail. LL will be awarded costs against you for having to bring the proceedings - you pay him back for any money he has to spend evicting you, which includes the court fee for filing the claim, as well as the bailiff fee to evict you. In addition, if your tenancy agreement makes reference to it, he can claim for the cost of his solicitor. He cannot evict you without raising costs, and the court will make you responsible for those costs, up to a fixed amount if not mentioned in the tenancy agreement, and much more if mentioned in the tenancy agreement. As I said, you and LL both want the same thing - you out of the house. So don't threaten him with court action for not protecting your deposit - pointless in these circumstances, and arguably too expensive for you if you can't afford to rent again privately - instead negotiate about how quickly you can both work together to get you out so that he doesn't lose his sale and you get your social housing points.
  5. I can virtually guarantee that sale isn't going through to completion without vacant possession; particularly if the buyer wants to live there. S21 has already been served - it is in tenant's and LL's best interests to ensure that notice is valid - proceed to court, get PO, evict. No need for either to mention the deposit - or both can confirm deposit was paid but returned before s21 issued. They both want the same thing - it's just that neither one of them is seeing it from the other's point of view.
  6. You're all looking at this in the most complicated ways possible. There are two things here: 1. Landlord wants vacant possession to sell and 2. Tenant wants social housing. The solution therefore, is incredibly straightforward. Tenant allows landlord to keep remainder of deposit to cover his costs for eviction (it'll cost around £300 in total) - agrees that deposit has therefore been repaid in full (get agreement in writing) - though it is preferable to say no deposit was ever taken. Landlord issues proceedings with now valid s21 notice (no one needs to know that deposit wasn't protected in time), possession is granted, landlord gets vacant possession, tenant gets eviction notice to hand to council - and everyone is happy. Most importantly for BOTH parties, there are no further delays - accelerated proceedings can be started the day after s21 notice runs out and LL can ask for HCEO enforcement, which means notice of eviction can be as little as a day later.
  7. It's not the judge who missed the point - it's the posters who spent months encouraging people like you to do exactly what you did, risking costs amounting to thousands. Proper advice, and correction of the wrong information posted, was given, the latter done consistently by Ben, the former I stated at least on two separate occasions, and probably several more on other threads. The arguments put forward in that thread had no merit whatsoever, and those of us who work in the field knew it, and sat back to await the judgment. No one wanted to see anyone lose money, but you were warned, and then forgot to be forearmed. It's your own fault if it cost you thousands. You should have used the tried, tested and proven route. Your story merely serves as a warning to other people who think they can get out of paying their mortgages by finding some fault with something somewhere along the line - if the law fails, equity will always win in a court of law.
  8. Bandit127 the PO has a fixed date, 30th April 2014, so 'forthwith' has nothing to do with the OP's case. A forthwith judgment is given for a possession order, which means, on the day of the hearing, the possession order is given forthwith, which means the claimant can proceed straight to a warrant of execution and the bailiffs will issue a notice of eviction to the mortgagor. The stage the OP is at, is that after 30th April, the mortgagee can apply to execute the warrant (without notice and no hearing will be required), and thereafter, depending on whether or not the mortgagee has applied for HCEO to carry out the eviction, or whether the court bailiffs will do it, the eviction could happen as little as a day after 30th April if carried out by HCEOs, or (and this is much more likely) an absolute minimum of one week if the court bailiffs do it...and, as most court bailiffs are busy and evict on an area basis, the OP might have as much as several weeks before they get around to it. There is no such thing as an 'appropriate repose of 28 days grace' - the OP can apply for a stay of execution (as correctly stated by Ell-enn) and make an arrangement to pay the CMI plus something towards the arrears. And there is no such thing as an 'eviction hearing' - eviction takes place without further hearings, either to execute the warrant or to carry out the eviction. And one last thing - the OP has enough on his hands and doesn't need you a) berating him over burying his head in the sand or b) reading your incorrect nonsense about the process, particularly when you claim to have been through it yourself, so obviously at some point buried your own head in the sand! To the OP: try not to worry - you should be able to sort this out, and in actual fact, if you can clear the arrears in their entirety by borrowing from family, I'd suggest you apply to have the original PO set aside, rather than stay the eviction. You have an automatic right to do this as you were not in attendance at the original hearing.
  9. You should see a solicitor. An all monies charge is difficult to challenge, but not impossible. The bank have no obligation to hand over monies they hold for you when you owe them money. It will be offset against your debt to them at some point. I can't see evidence of misselling or duress - but if you see a solicitor, they can go through all the documentation you have and make an informed assessment, rather than just a guess from a few posts on a forum. You may also be able to challenge any charges or fees added to your account during the period of time that this money ought to have been available to you - especially if you can show that if you had access to that money, you would have been able to make payments to them.
  10. I have given you as much help as I can afford to give - it's too time-consuming, and I made my suggestion more than once as to the appropriate route: a solicitor. If you are insistent on ignoring the advice, then I'd suggest you seek the assistance of CAB, or perhaps even the pro bono unit (to whom you'll need a referral from an appropriate agency). I do, however, believe (based on experience) that the judge will give you an opportunity to repay over a reasonable time - so make sure your proposal is realistic and shows true affordability, not airy fairy stuff.
  11. This isn’t straightforward, so I hesitate at providing you with information you may not understand, but I suppose something is better than nothing. The key to an all monies charge is whether there is ‘deferment of principle’ in the agreement. If there is, then the court has the discretion to suspend or adjourn. If the loan was taken out for the purpose of buying a house with payments of principal and interest, the mortgage is covered by s8 of the Administration of Justice Act 1973. A loan that is taken out for a fixed period which is interest only with the sum repayable at the end, is also covered by the same section of the AJA 1973 (Confirmed by Bank of Scotland v Grimes [1985]). If a loan is for a fixed period with repayment of the principle at maturity - (this is usually a business loan with a balloon payment), s8 also applies (Royal Bank of Scotland v Miller [2002]). Therefore, if a business loan is secured on a residential home with payment of interest and principle, then that is also covered by s8 as there is provision for deferment of principal by instalments. The usual s36 AJA 1970 doesn’t apply where principle is payable on default - this is the usual basis for a defence to possession. Grimes and Miller referred to above are cases in which an all monies charge applied and the court found that s8 applied. The court will also look at whether or not the loan can be repaid in a ‘reasonable time’.
  12. But you do have a chance - it's just that it's going to be a bit of an uphill struggle to get all your case law in order and explain to the judge why he/she should apply such in your circumstances. Negotiation is for those in a position to negotiate - all you're doing is offering and hoping they will accept. Don't forget to keep a written record of everything - the judge will be interested to know what if anything you've done to try to resolve matters.
  13. The particulars of claim should include the statements and a full breakdown, including what are actual arrears and what are charges (listed separately and detailing interest accrued separately). 'Unfair charges' is a consumer term, not a business to business one. If you don't have a full breakdown, request one either from the solicitors involved or directly from the bank. As I believe I have said, business to business transactions do not have the same protection as business to consumer transactions. Of course they can claim the shortfall from you.
  14. Yes, posters often 'insist', even when it's patently obvious they don't really have a clue. What you choose to do is up to you.
  15. My initial advice stands - file the N244 with a statement, proposal for payment and I&E for HOUSEHOLD income.
  16. You said it could be used as 'mitigation at a court hearing' - that's suggesting to the OP that it can be used in a court of law as a reason to get an adjournment. That's an attempt at a legal argument. You're not a lawyer, which is probably why you didn't get it. I corrected your incorrect information, I suggest you get over that.
  17. All of that is extraneous Wintry - we could all post anecdotal information, it doesn't make it a legal argument and to state it in a way that makes it look as though it will fly in any court in the land is misleading. I take it you're not a lawyer.
  18. Good news re the deposit proof you have. But...I am surprised if you have received legal advice about counterclaiming, that you have not also been told that whilst you can do that, the case will be allocated to the multi or fast tracks and with that come the additional fees aforementioned.
  19. I suggest you type up a table of payments made against payments due and then issue a money claim against the LL for the return of your overpaid rent from previous tenancy agreements. I am afraid I would not advise trying to claim for non-deposit protection as it is just so expensive to get a claim started - but if you have a spare £1k go for it. If you have proof of paying the deposit, you will win and have your deposit returned to you - and at least one times that amount as a penalty is likely to be awarded against the LL (up to the judge if he wants to award more).
  20. Your tenancy started in 2006...and ended 2007 - but you do not specify actual dates. Did it go periodical before or after 6th April 2007? That is what is relevant. I see you ignored the question regarding the differences in your posts and when/if a new tenancy agreement was started - you've posted whilst I was typing this, so will respond to that. If there are no arrears on the new AST, LL has no grounds to claim possession under a s21 until the tenancy period is over, or any appropriate break clause is activated. If the property was formerly the LL's own home, then a s8 notice can be served under g1 (mandatory). LL can't change the rent amount under the agreement - he's mistaken there. What he can't do is keep any overpayment, but that overpayment has nothing to do with your current tenancy agreement, so any extra payments you made under previous agreements are disputes related to those agreements and not this one. I suspect, if the deposit was merely paid into his bank account, and there is no specific record of a 'deposit', that the LL will state no deposit is held. Does your new tenancy agreement specify that he holds a deposit for you?
  21. I think you'll find your proposals were what were persuasive - not the lack of following pre-action protocol. If the defendant didn't have representation at the hearing the possession order was granted at, or were not in attendance at the hearing, the the PAP argument might fly at a stay hearing - otherwise in my experience (several thousand cases), it doesn't. I wasn't criticising your advice - it was good that you told OP to seek further advice - that is always sound advice to give. In social housing possession proceedings, household income where there are non-dependents in the household is hugely relevant. If, as you state below, you have been doing defence work for 14 years, you ought to know this. They have to start somewhere - that somewhere is with the advice I gave - proposal, statement and income and expenditure for the HOUSEHOLD. That's great - so have I been doing it for years and training others to do it. I'm secure in the advice I give.
  22. Your company is listed as dormant...may I ask why you're trading?
  23. Filing an N244 before the notice of eviction is received is £80 (there is fee exemption for those on benefits or low incomes), and £40 if the notice of eviction has already been received. Caro: yes, there are hikes in social rents, but not usually as high as £1000, even in London a four bed social housing property would be at best £150 or under per week - social housing rents are heavily subsidised. OP: is the tenancy agreement an AST or an AT? I suspect the former.
  24. Your thread is confusing - in the first post you state you are on a periodic tenancy, then in yesterday's post you state you signed a new tenancy agreement in December 2013, yet the first post was made on 28th February this year, so which is it? Is there a tenancy agreement that starts in December 2013, or are you on a periodic tenancy? If periodic since 2006, there is sufficient room for a legal argument not to protect the deposit - but if there is a new tenancy in Dec 2013, then the deposit should have been protected before 30 days was up and the PI provided too. That said, I've yet to see a s21 struck out on the basis of a lack of PI if the deposit was in fact protected. The most important issue is this, if you had been in arrears for your tenancy prior to the new tenancy agreement in 2013, whilst the LL can chase you for the arrears, he cannot claim possession of the property for those arrears as they arose under a different agreement to the one you hold now. If, however, the arrears have arisen since 2013 and the new agreement, then the LL has no obligation to take any alleged overpayment of rent to reduce new arrears, though he has an obligation to return any overpaid rent to you (and you can sue for its return). Logic would say if there was an overpayment, that the LL would simply reduce current arrears with it - but he is not obliged to. s8 notices can be served for a variety of reasons, half of which are mandatory - which means there is no defence to them and the court has no discretion but to award possession. The rest are discretionary, which means it's up to the judge. As with most cases, you are better off negotiating with the LL. If you've been there with no problems since 2006, you must be a reasonably good tenant, and any logical LL will consider that.
  25. Firstly, the pre-action protocol that social landlords must follow is PRE action - it does not apply to a warrant of execution. There were quite clearly other proceedings involved here as OP is asking about staying an eviction. So, the pre-action protocol is irrelevant. Stay application must be made on N244 - OP you will find this in the sticky created by Ell-enn at the top of this forum. Fill it in, submit it with a statement and a proposal for repayment and include an income and expenditure for HOUSEHOLD income. From reading the information you have posted, it would appear that housing benefit (or more likely local housing allowance) has been reduced due to the fact that there are non-dependants living in the property. Such circumstances, where both are working, will reduce the available benefit quite drastically - often to nothing at all if the wages earned by each non-dependent exceed certain amounts. The non-dependents must help their mother pay the rent - either that, or they should move out so the mother's LHA/HB can be increased accordingly. The biggest concern here is that £1000 per month is not a usual social housing rent - is it a private rental via a housing association? Security of tenancy is less assured in such cases.
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