Lea_HTH
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Everything posted by Lea_HTH
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The same place I said you gave 'wrong advice' - i.e. nowhere. What I did say was that you post the wrong information, because you have said the same thing on several different threads - and it is wrong. Irrelevant because I corrected YOU, not the OP. I was clear about what the wrong information was as I only quoted the bit I was referring too. Try reading, and get over the thought you are being 'picked on' - you're giving inaccurate information and it needed to be corrected. Since you raise it here though, being registered disabled does not automatically qualify someone for exceptional hardship in relation to extending the PO date. I see accelerated proceedings being used regularly since I defend possession proceedings - so I'll rely on my own DIRECT experience rather than your second hand reading of other people's alleged experiences any day. So, if you don't mind (or even if you do mind!), stop telling people stuff that you don't actually KNOW and leave it to those that do.
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The dates make no sense. You state your friend is a single 'parent of 17' - one presumes you mean single parent to A 17 year old. Try not typing so much information - it's fairly pointless until you're asked. Simple fact of all possession proceedings and likely judgment (despite what else you might read on this forum), is that to stop possession, the monthly instalment plus something towards the arrears to clear them in a reasonable time (which can be the remaining term of the loan) MUST be made. If that payment can't be made, then a possession order is likely to follow. Why can't your friend manage the payment? What other debts does she have? The mortgage has to be the priority. If she genuinely can't afford it, then she should contact the mortgage rescue scheme at the local authority and make an application as soon as possible. The loan company is not obliged to extend the loan and are extremely unlikely to do so when there are arrears. The judge can't do anything about that - it's not within his or her power.
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How much was the property sold for? How much was the loan from GE Money? You seem to be misunderstanding the simple fact that whilst GE Money gained the possession order, Santander held the first charge, so it is highly likely all monies (or at least suficient to cover your debt to them) would be transferred to them on sale, for them to take the monies they are owed, the remainder would then go back to GE Money to take their share. There are inevitably costs involved with a repossession - and just because Santander did not gain the PO, does not mean they had not started proceedings, hence the costs referred to above. They are entitled to charge interest on the arrears - your terms and conditions would refer to that. If there is any money left after the discharge of the debts secured on the property, then you will receive that from the solicitor who handled the sale.
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You need to stop saying this. If a s21 notice was served with the tenancy agreement, LL would be able to progress straight to court once the fixed term has ended. If not, then, properly served, it would only take 2 months to be effective, it can then take as little as 2-3 weeks to get a PO via accelerated proceedings (done on the papers) and as little as one week for the execution of the order (another paper exercise). Each time you post the wrong information, you are giving people false hope - it is better to give the QUICKEST times it could happen, and let them take proper advice from the duty scheme at their court (who will know how busy the bailiffs are). OP - you've agreed the rent increase on the basis of an 18 month contract - so whilst you could do as Mariner suggested, you're on shaky ground due to the agreement and the payment of the renewal fee - it would be easy to show in court that the intention for both parties to enter a legal contract was clear. Practically, and to answer the question you actually asked, you should negotiate with the LL/LA and point out to them that you have been a good tenant for several tenancy agreements and have no intention of being anything other than a good tenant in future, and as such, you would like them to continue with the new tenancy agreement without guarantors. See what they say first.
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The point is that the judge obviously didn't believe that, or believed that it had been repaid. Give the full story so you can get the help you're asking for.
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Yes, the law changed on 6th May 2012. All LLs with current tenants at that time had to protect the deposit within 30 days - no concessions.
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Superstrike has naff all to do with the s8 notice which caused the discussion in this thread! A claim for non-TDS compliance is separate to a possession claim brought under s8. The case law has no bearing whatsover.
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Unfair solicitors charges/repossession threat
Lea_HTH replied to Mark54321's topic in Home Repossessions
Pay the actual debt and ask them to quantify their losses. If they refuse, then you'll have to let them take you to court, and they'll be obliged to quantify their losses there. nearly £3k in fees over three years is ridiculous, so I think they'd have a hard time. You also need to check your lease to see if the charges they are levying are allowed for in the lease - if not, they can't charge them. Even if they are listed, they have to be fair and reasonable for the work involved (what they're asking for is not reasonable). In order to forfeit most leases, the debt has to be over £350, so your three years of £100 don't quite reach the requirement, and there are multiple steps they have to go through before they get to that stage. -
What's more important was that the judge awarded the PO because he didn't believe your defence - so either he decided, on the facts presented by you and the LL, that no deposit was taken, ergo it did not need protecting, or that the deposit was returned. If there was a deposit, and the judge found that there was - i.e. the evidence was concrete, then the judge would have no discretion but to dismiss the possession claim. To do otherwise would have been an error in law, and it would be on that basis you would make your appeal. I suspect the whole story hasn't been given.
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Boiler broken new born baby
Lea_HTH replied to flexeh's topic in Residential and Commercial lettings/Freehold issues
The logical action would be to call a gas safe engineer and get it checked - won't cost the earth and if it is something simple, it could be fixed on the spot. If not, then the landlord can arrange a gas saef engineer of his own tomorrow when he/she is notified. And ask for an emergency contact number for future issues. Oh...and don't fiddle with the boiler yourself unless it's for things that are meant to be fiddled with by the householder - there is a reason things connected to the gas need qualified engineers. And kids are often hardier than people treat them these days (unless they have specific disabilities/needs); warm up one room, and let everyone sleep in the same room tonight. Your LL should effect a repair to hot water/heating in a reasonable period - and I'd say that is a day at best to get someone out to look, with the hopes that a repair will be complete within a week or so. If it was just heating, then marginally longer. -
It's a separate claim. Writing it out above doesn't make it not a separate claim...two completely different tracks. The rest of what you wrote is irrelevant. My post is correct.
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A s8 notice can be served for a variety of reasons, not just rent arrears. There are actually 17 grounds, eight of which are mandatory, which means the judge will have absolutely no discretion but to award possession if the ground is made out. The other 9 are discretionary. The periods of time for the notice depend on the ground used and can vary from issuing notice and filing in court on the same day, to two months. A ground 8 claim cannot be 'slowed down' with a counter claim for disrepair or non-TDS compliance. TDS has absolutely no bearing whatsoever on a s8 claim - that has to be made separately. A g8 claim made out on the day notice is served and on the day of the hearing is MANDATORY. Sequenci, you may be better off stating what you'd like to do and give details of the tenancy type, when it was started, whether deposit was protected, whether there are any breaches of the agreement by the tenant etc., as there may be specific grounds you can use rather than just a s21. If there is nothing untoward, then the easiest way is a s21 - make sure you get the dates correct - or, if the LL wants to move back into the property because it was his home, then a s8 ground 1 will work equally as well. Unless the tenant has exeptional hardship factors, a s21 using accelerated proceedings should have them out within about a month of the notice ending, so long as you file for possession the day after the notice expires (case is decided on the papers without a court hearing).
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Shortfall after sale of business premises
Lea_HTH replied to Frantic50's topic in Home Repossessions
The OP was a sole trader, so he/she and the business are one and the same legal entity - there is no 'the business' and 'the OP' legally - the bank will have to provide all the information they hold. If the OP had been the director of a limited company - the limitations on what he/she owes would have been covered by the fact that the Ltd Co. and he/she being two seperate legal entities (save as to any director guarantees given). -
There won't be a hearing as they already hold an SPO - applying for the warrant to execute it is a paper exercise. You will need to make an application to the court on form N244 to stay any eviction (once you receive the notice of eviction from the bailiffs - as it is cheaper to apply once you have the NoE). However, you are free to apply directly to the court prior to the receipt of the NoE if you don't want to wait. Did you catch up the two missed payments? Or are you now approximately £1800 more in arrears than you were before? You'll need to have good reason and evidence of why the payments were missed - the fact that it was so close to Christmas will make the judge think that was the reason for the missed payments, so ensure you are clear and provide proof of what the money was used for.
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Halifax taking us to court for deceased father's mortgage
Lea_HTH replied to jill3006's topic in Financial Legal Issues
As the above poster states, as executors you are responsible for ensuring the proper administration of the estate. However, the mortgagee also has responsibility to act quickly - and 18 months of accruing debt doesn't seem like acting quickly to me. I would strongly suggest that you seek the advice of a solicitor, since there will be an abundance of paperwork to go through, background details as to the length of time the mortgagee has taken to act, as well as perhaps some investigation into why a further advance was given...if your father was a pensioner, or would have been a pensioner at the time the mortgage was due to end, then the loan itself may have been missold (far more complicated to prove). You need a solicitor. -
I think you need to speak to the bereavement team again, as you are the administrator for the estate - they have to deal with you. If the arrears are actual missed payments, then they can start possession proceedings. It would appear, given your financial circumstances, that MRS is possibly the best route for you. If possession proceedings are started, you can provide the court with a letter from the local authority stating that they are assessing an application for MRS for you. In the meantime, if you are able, make as much payment as you can so that the arrears do not rise any further - or at least don't rise by the full CMI each month. As I stated previously - your matrimonial home rights have a role to play and you need to speak to a solicitor/CAB/Shelter with regards to this. There isn't much else to say until you've seen the local authority with regards to MRS.
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Unfortunately I don't agree with you - 'believing a term exists' and it 'actually existing' are two different things. My reading of the term in its entirety is that it relies on something in 'condition 1' - no judge would read that and not ask 'what is condition 1'...the judge isn't interested in other people's 'understanding' of the clauses (unless it is mutual understanding or the reasonable man's understanding), but in the reading of them and the interpretation. If a judge finds it ambiguous and unclear, he'll strike it out as if it never existed. There is no 'ambiguity legally' - it either IS or it is NOT in law - and that is what the judge decides. That said, I don't think the clause is ambiguous - it relies on 'condition 1' to clarify. A judge would look to what you understood yourself to be signing - a one year tenancy agreement - not to whether you understood the terminology of the get out clause. For the record - nowhere in anything that you posted have I seen anything that could be construed as a break clause. Whilst I understand your frustration, unfortunately I can't see that your arguments make sense, hence stating that negotiation is probably the way forward. I don't think you'd win if the LL decided to sue you for any void periods he suffers due to you leaving before the end of the tenancy term. I have given you my view based on the information you provided and the clause as it is written in your contract. What you choose to do is entirely up to you, but at least you have an alternate view to your own interpretation, so you are forewarned as to what could happen (that's not to say it will happen). I still believe negotiation is the way forward.
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The first thing that springs to mind is that you state you lived in the house when it was mortgaged by your husband and his mother (to buy it), and he then subsequently remortgaged whilst you were living in it...if that is the case, then your matrimonial home rights exist before the mortgage, and even if there are arrears on the mortgage, the mortgage company will have a harder time trying to gain a possession order against the house. Matrimonial home rights are a complicated area of law - so I'd suggest, strongly, that you seek the assistance of CAB, Shelter, or preferably a solicitor if you can afford one IF they start possession proceedings. Ell is correct though - they cannot start possession proceedings on the basis of charges. As your husband died intestate, and his estate seems quite small (value of the house is low), then it would seem likely that you will inherit the house under intestacy rules. If Halifax want their money, they are doing themselves no favours by their current actions, as it makes sense to allow you to adjust the loan in order to repay them. But you do not have to remortgage with the Halifax, so you can look at other banks (though avoid subprime lenders - stick to the high street), get an offer in principle and then inform the Halifax that you will be paying them off and can they provide a redemption figure. You will in effect be 'buying' the house from yourself...though of course you are not, it's just a matter of getting the money for the outstanding loan from a new mortgagee.
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OP, you may do better trying to negotiate your way out of the contract with the LL, as even if this ends up in court and the clause you refer to is seen as unclear, it'll either be struck out or ignored, and then you are back to where you started, with a 12 month contract. It might be cheaper and less stressful for you and your family to simply assist with the remarketing of the property and the payment of the fees to do so - and move out when a new tenant is found, rather than leave the LL with a void period where he is entitled to continue to claim rent from you under the contract.
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I can see why people are confused by the tenancy agreement - but the interpretation of clauses is taken as a whole in law and also in relation to any references within the clause to other sections within the contract. Therefore, as I said, the reference to condition 1 is relevant. I am not here to teach anyone the law, but there IS a statutory protected period of 6 months - except in the case of replacement tenancies, which of course OP's is...but that doesn't mean that there isn't a period of 6 months of an AST that isn't protected by statute because the relevant statute clearly states as much.
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I think you're all ignoring the condition of giving that notice. It says 'you may end this contract by giving us at least one month's notice in writing that you will give up the property on the date shown on the notice referred to in condition 1.' The pertinent part of that is what is 'condition 1' (is it point 1 of the 'ending the contract' section, or is it condition 1 on another page of the tenancy agreement?). If it is point 1 of the ending the contract section, then notice by the tenant can only be given if a s21 notice has been served on them, and even then, their notice pertains to the date given on the s21, not their own chosen date. If 'point 1' and 'condition 1' refer to different things, then we need to see what 'condition 1' is before deciding if there is room to break the contract. Normally a 12 month contract cannot be ended unless it includes a break clause, such clause to be made effective only after the six months statutory protected period. The section included in the PDF does not refer to a break clause, which normally gives a specific period of time when it can be activated. I hope Shelter actually had a look at the contract before interpreting it the way you say they have.
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My home is being repossessed - please help, in a mess!
Lea_HTH replied to helenandlee's topic in Home Repossessions
Just because the possession order was granted forthwith (on 15th January), does not mean that the bailiffs have attended the property as yet. Until the bailiffs attend, the mortgagee cannot change the locks and you are entitled to continue to enter the property and remove items that belong to you/your father. What you need to do is phone the court (or go to the property to pick up any paperwork), and find out when the bailiffs are coming (or if they have been already) - if they haven't been, then your father can go and get his goods - if they have been, then the locks will have been changed and the property likely boarded up, so he won't be able to gain access and will need to contact the mortgagee to ask for permission to re-enter (they won't let you do this unaccompanied). If the possession has been taken, even if the property is not boarded up and no one has changed the locks, your father will be breaking in if he attempts to enter without permission from the mortgagee. Likewise - if possession hasn't been taken - you can make an application to the court to stop the possession if you are in a position to pay the CMI plus something towards the arrears. Had you considered renting the place out if you no longer live there? -
It's not the tenant that sounds 'flaky' here. I think the LL has royally messed up and is now trying to resolve things in retrospect. There is no mention of attempting to fix anything the tenant complained of, instead the tenant appears to have an abundance of evidence against the LL for failure to do things, and potentially for harassing her. I'd suggest LL re-issue a s21, that way, when this court action fails for what appear to be valid reasons on his telling of the story, he'll already have his second action in hand.
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Was there, at the time you served the s8 notice (forget whether she claims to have received it or not), 8 weeks (if weekly paid), or two months (if monthly paid), of rent arrears? Is there still that level of arrears or more today? What disrepair is she claiming for? Is the house in your name? I.e. are you the registered owner at the Land Registry? These are straightforward questions, with simple, straightforward answers, so don't complicate things - we'll get there a lot quicker if you give the information you're asked for.
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Sorry guys, it's not about pulling anyone up - I, like you probably do, think it's important that people have accurate information so they don't feel cheated when they get into court and hear the judge say something different. The judge does have the power to order no costs to be added to the mortgage or the security IF he believes the proceedings were not necessary.. .at that stage, if the costs are added, the mortgagor can ask for them to be removed by waving the court order. Otherwise the mortgagee's court costs can only be challenged if they are over the top. ..e.g £6-800 for a hearing is about fair, more and they are verging on over-charging.
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