Tricky Landlord - Help Please

[pink1]

Hi, We've recently moved out of a rented flat. The tenancy agreement said we had to give a months notice. When my husband went to do this the landlord was all, "no no don't worry move out when you want I'll refund you any overpayment in rent." Thinking ourselves lucky to have such a nice landlord we duly moved out 10 days early.

 

Check out was completed, agreed no defects and deposit would be refunded in full. Duly received, banked, cleared. Still no 10 days rent. So we wrote and asked for it. LL claims to have found teeny weeny burn mark in kitchen worktop next to cooker and has produced quote for £130 for replacement of whole thing and on that basis is witholding refund of rent.

 

I would say defect not detected at check out - can't prove we're liable (fair wear and tear anyway after 4 years?) and he should still adhere to arrangement to refund overpayment in rent. What would anyone more knowledgeable say?

 

Thanks x

[jackieandwayne]

I would say what you say - check out inventory done and dusted, signed by both parties, I hope, that's an end to it.

 

I should send him a letter before action asking formally for the return of your monies as agreed. However, how was the agreement arrived at? Verbal or written, because if verbal its his word against yours unless your husband had a credible witness with him when this was said. If written, well, he released you early!

[pink1]

Thank you (and sorry for late reply - been away).

 

We issued proceedings via MCOL. He has entered counter claim - so it looks like we're going to Court...

 

Agreement was verbal but he confirmed it in writing. Only problem is the letter seems to have gone astray in the move.... I'm thinking though, I know he copied it to the managing agents - can I subject access request it out of them do you think?

[jackieandwayne]

Yes, do an SAR request and see what comes back, hopefully it will be in time for the Court date. Just say that you wish to have a copy of their file, including all data they hold so on and so forth, but I wouldn;t specifically refer to this letter at this stage, see if it comes back with the info first. Either hand deliver it or send it registered.

 

Also have another very good look for the original, it has to be somewhere if you know you don't generally bin things like that.

 

Your defence will be that there were no problems or damage afterwards; you have signed and dated documentation to this effect, and have received your deposit back. You were unaware of any mark or chip in the worktop, and you certainly didn;t cause it. You cannot be responsible for what happens in the property after you have vacated. You agreed to leave early with the landlords good wishes and you have this in writing (we hope!). Of course, don't forget to say that you went to give the correct notice, and only left early because he was agreeable to that.

 

What happens next is up to the judge but without that letter, you left early, and were liable for the last bit of rent on the face of it. So you need to obtain it. If you can;t find your copy, and the agents don't come up with the goods, no harm in putting in your defence that you are waiting for a copy of it from the managing agents/they have ommitted it from your SAR - and then you'll need to take that up with themif you want to.

 

Don't worry about going to Court, its a matter of being prepared and a bit of deep breathing beforehand. Its only County Court, very informal, but just take a breath before you speak, and run quickly through yourmind what you want to come out of your mouth, stay calm, and don;t feel intimidated, the judge will help you. You should be in and out within about 10 minutes with luck.

 

Fingers crossed and I hope all goes well.

[the_freedom_trail]

Hi pink1,

 

I am not a betting man but if I were I would back you to win this case. As jackieandwayne have already stated, the check out is what its all about and if no burn mark was detected at that point then how on earth can they prove it was you that did it? In addition, burn mark in a kitchen could reasonably be considered fair wear and tear - lots of hot pans, kettles, etc it is certain that it would happen at some point.

 

TFT

[pink1]

Thank you, both, feeling a bit calmer about the prospect of court now....

 

Haven't received the allocation questionnaire yet - subject access request sent today. Fingers crossed the timings work out and I guess I'm spending my weekend unpacking those last few boxes in the spare room!

 

Do you think it's worth subject access requesting the LL directly too? He's an officious so and so - sure he'd keep copies of all his letters!

[jackieandwayne]

Well, you could, but if it were me I wouldn't want to give my defence away at this stage. I'm hoping the agent won't tell the landlord about your SAR - they really shouldn'.t

 

On the other hand if the landlord realises what your defence will be, he may well see the error of his ways and give you your money back.

 

Its your call - you know him!

[jackieandwayne]

Didn't mean defence, I meant case! LL is the defendant!

[pink1]

So we've received the details of his counter-claim .

 

Firstly - and most interestingly - he admits that he agreed to refund the rent for the period in question!!

 

Secondly - and less interestingly - he is claiming £680.79!! This is made up of £138 for the replacement of the entire kitchen worktop (really? for one little burn mark??) which we were expecting but also £542.79 in rent!! He says we "deliberately ignored the contract terms of giving written notice which if it had been adhered to the notice to leave would have been 9th June 2009. The loss of rent equates to 26 days" Not sure how he works this out...

 

Having calmed down and put my rational head back on surely the salient facts remain that the "damage" was not detected at the "check out" and as for the rent issue the tenancy agreement was terminated with the full refund of our deposit (right?), surely he can't go back and change his mind now?

Edited July 22, 2009 by pink1

[pink1]

So now I'm thinking - given that he admitted that he agreed to refund the monies to us has he infact entered an admission and a counter claim? He (and the court) are calling it a defence and a counter claim but he doesn't defend our claim for the repayment in the rent... Should I ask (can I ask?) for the status of what he has entered to be altered?

 

I am worried though about the prospect of facing a £600 claim against us. We can't afford it... The man is (IMHO) a bully (I, in fact, left the checkout in tears) and we don't want him to get away with this as a matter of principle though. I'm not worried about the claim for the worktop because as jackieandwayne and TFT say it wasn't detected at the checkout - it's the rent bit that's bothering me. Rationally I'm sure he can't change his mind now and he's just trying to make us withdraw, but I'd really appreciate it if someone more knowledgebale could let me have their thoughts please?

 

Thank you x

Edited July 22, 2009 by pink1

[jackieandwayne]

Ok, as i read it, he admits your claim. So he will be ordered to pay you.

 

If you click on the warning triangle this will alert the site team that you need a legal eye cast over this - as i am not a lawyer, just a HO.

 

However, your claim is to do with the rent (a money claim), whereas his counter claim is to do with the deposit (which should have been protected). Now this is where I am not sure, but I would imagine the judge will just disregard it or whatever, (a) because he released your deposit in full to you, on the back of an agreed satisfactory check out inventory and (b) issues to do with tenancy deposits are a different matter and dealt with in a different way, (I think) and there is no issue with the deposit since he has returned it to you in full.

 

I'd love to know if I am right, but if the site team are unavailable for any reason, then you can pop along to your local Shelter office for advise - they'll soon put you straight with this.

 

Post back if you do go to Shelter, your experience will help lots of people on here.

 

And, always remember, you cannot get blood out of a stone, so if the landlord should win (I doubt) then tell the judge that you can only afford a quid a week!

[pink1]

"If you click on the warning triangle this will alert the site team that you need a legal eye cast over this"

 

When I do that it says, only to use it to report abusive posts etc? Being a newbie I don't want to do anything too naughty...

 

whereas his counter claim is to do with the deposit (which should have been protected)

 

Don't think so - it was paid over four years ago...

 

Thank you so much for your continued help with this - I'm off to find Shelters's website!

 

Px

[Planner]

Pink1,

 

Looks like the advise that has been given is all good, thats why I havent chipped in. Chances are your LL wont even turn up in court!

[pink1]

Thank you. I wondered, from some of your other posts, if you might help me with the more legal slant jackieandwayne suggested I get... I have e-mailed Shelter but they can take 3 days to reply and I am stressing a little...

 

given that he admitted that he agreed to refund the monies to us has he infact entered an admission and a counter claim? He (and the court) are calling it a defence and a counter claim but he doesn't defend our claim for the repayment in the rent... Should I ask (can I ask?) for the status of what he has entered to be altered?

 

What do you think?

 

Also are my instincts right about him changing his mind about the rent and notice period etc? Is it that he is estopped from enforcing the term of the tenancy requiring a month from the commencement date or is is that given that the tenancy agreement no longer exists the terms of it are no longer enforceable?

 

Thank you so much,

Px

[jackieandwayne]

Tipping the warning triangle is to alert the site team to abuse etc., but also just to alert them that you need a little more help. It's ok - they haven't bitten me yet!

[citizenB]

Site team aware. When does your defence need to be in by ?

[pink1]

Wow thank you. Allocation questionnaire and defence have to be with the court by a week today (Friday 31st).

[steven4064]

It seems pretty clear-cut to me:

 

1. He agrees he let you leave early so the stuff about a month's written notice is nomesense

 

2. You have the signed check out sheet sayong no defects.

 

He hasn't a leg to stand on IMO. Just hold on in there and make these points in your statement of case and in court.

 

In fact, you could go one better, you could apply for his defence to be struck out on these 2 bases under CPR Part 3.4 (2)(a) as defence discloses no reasonable grounds for defending the claim nor for bringing a counter claim. Include that in the apprpriate place on the AQ - you could do it in 'other information' - something like

 

"the defendant, on his own admission in his defence, released me from the requirement for 1 month's written notice and, further, signed an inventory on termination of my lease agreeing that there were no defects in the property. On this basis I request the court to issue an order stiking out the defendant's defence and counter claim under CPR part 3.4(2)(a) as disclosing no resonable grounds for defending the claim nor for bringing a counter claim"

[pink1]

Thank you so much - huge relief. Will do as you say re: AQ but please coud you just clarify "CPR"?

[pink1]

Shall I enter a defence as well just to be on the safe side?

[steven4064]

Yes, your defence would be based on the same 2 points.

 

('CPR' = Civil Procedure Rules - see PART 3 - THE COURT'S CASE MANAGEMENT POWERS - Ministry of Justice)

 

PS - I have recently helped someone else win a case based on a verbal agreement for over £50k as a litigant in person

[pink1]

Ahha! Shall I ask the Court to make a consequential order for him to pay up? I'll work on a draft over the weekend...

 

Is there a thread for your amazing sounding win?

[steven4064]

Is there a thread for your amazing sounding win?

Unfortunately not. It was pretty simple really - my freind's company did some urgent work for another company without a written contract ('cos it was urgent, see), sent an invoice and then the other comapny refused to pay them on the basis that their end-custimer hadn't paid them.

 

Tough, I said. We started a claim in the County Court based on e-mails which showed that the other company has requested work, had accepted work as being acceptable, had refused to pay. Once we sent copies of these e-mails to their solicitors they advised their client they hadn't a hope of winning so they paid up.

 

The admission in the defence and the signed inventory correspond to the e-mails in the above case.

[pink1]

Nice

 

What do you think about the "consequential order" - is it as self explanatory as it sounds?

[steven4064]

I'm not sure what it means TBH