Urgent HELP NEEDED PLEASE landlord tenant act 1987 48(1)

[caroline33]

Hi,

 

I have been asked to help a friend (the Landlord) fight a court case as he cant afford legal help and am out of my depth and would greatly appreciate any help and advice from any Lawyers, Barristers or those with experience with this issue.

 

Landlord issues small claims for rent owed for the remainder of contract as tenant leaves before. She he tenant counter claims disrepair. Counter claim dismissed (it was made up) and so is Landlords claim because of non compliance of Section 48 of the Landlord and Tenant act 1987.

 

The tenant did receive in writing the address at the time of signing however at the hearing she said she had never received it!. The Judge believed her on the basis that her body language appeared that she had not seen the document before, she also claimed the address was known as it was given by phone (which was a lie).

 

This is despite the fact for the time she was there is evidence of her writing to Landlord a few times during 2 months and being aware of the address in the small claims summons and issuing a counter claim. Landlord is now considering two options 1)appeal (a few days left to do so) or 2) issue a new small claims case.

 

I would be gratefull if anyone could advise on the following in particular reference to any case law that we can depend upon.

 

1) Should she appeal? And on what basis? In the tenants witness statements some of her dates are also incorrect but were not considered much by the judge.

 

2) Can body language at the trial be more influential than Landlords word document given.

 

3) If no appeal, can Landlord now then issue a section 48 again to tenant and then claim the rent that was due till end of contract and if yes is there any time limit for this.

 

4) How would you serve a section 48 to make sure she does not lie again, recorded delivery?.

 

5) If section 48 complied with does rent become lawfully due fronm that point on or all rent past and present from start of tenancy?

 

6) Is there any case law that Section 48 in writing, because the judge says she was aware of it orally (she lied), and if it be accepted tenant side correct (which it is not) surley the purpose of section 48 has been fulfilled, I.e, corespondence received answered and also court proceeding?.

 

I would be gratefull for any help and advice please, thanks.

[Guest Old_andrew2018]

A quick question how much was the original claim for?,

[caroline33]

Hi, £1500

[caroline33]

Hi old andrew sorry, just curious to your post, does the amount levels make any difference?

[Guest Old_andrew2018]

No the amount does not make any difference, it was simply me thinking about cost of pursuing, with the possibly failing.

It also crossed by mind that the tenant might look for return of the deposit.

i) was it returned

ii) was it protected in one of the TDS

 

Andy

[caroline33]

any other views?

[Steve__M]

I am not a lawyer, and I don't think there are any here.

 

Don't appeal, because the judge did not make an error in law. You appeal for errors in law. He judged a matter of fact (deciding that a Section 48 had not been served) and then correctly applied the law to say that the rent was not due.

 

LL could try serving the section 48 and then issue a new claim. Make it clear in the new claim that regardless of the late issue of the Section 48, the tenant *did* know the address. I don't know whether this will work.

 

Get an impartial view of the counterclaim. While you have confidently claimed that the tenants claim was worthless, one does get the impression that judges sometimes seek to find a judgement that suits natural justice rather than a pedantic application of the law.

 

The law says "A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant."

 

So I think it would need to be in writing.

[caroline33]

Hi, thanks for your thoughts, just wondering if that could you still do it now given she is no longer a tenant now technically, can you also appeal on the basis that the effect of section 48 were evident by the tenant liasing and issuing a counterclaim?

[caroline33]

Hi guys just bumping, anyone got any views on whether a section 48 can be issued to a tenant after they no longer are a tenant?, PLEASE HELP.

[Kentish Lass]

I am not a lawyer, and I don't think there are any here.

 

I have not responded to this OP since I do not have any expertise in this particular area. Where HAVE the lawyers gone? No Pain No Gain seems to have disappeared, and his/her postings were so helpful and informative.

[caroline33]

Thanks Kentish Lass for your post anyone else out there that can help?

[caroline33]

bumping!

[Planner]

Nothing to add, but good luck. The former tenant sounds like a really nasty piece of work.

Edited August 3, 2009 by Planner

[caroline33]

Yes the tenant was very manipulative and a plain liar regretably. Any other help guys.

[jackieandwayne]

Caroline, Planner may have to help me out here (he's brilliant) but as a Housing Officer, I would say that you will not win this now.

 

I don't believe that serving the S48 now will have any effect whatsoever, she is no longer a tenant.

 

Just a thought, I don;t serve these notices, because there is a special section within my tenancy agreements that gives all the details of the owner, and the managing landlord. Now, have you got a copy of the very first tenancy agreement and were these details incorporated within that agreement? My agreements say something like "As per S48 blah blah blah ... and then all the details required. Because if you have got that in the agreement I would think that covers you. I hope so, otherwise I'm doing it all wrong as well!

Edited August 4, 2009 by jackieandwayne
missed word

[caroline33]

Hi, thanks for your views, but after extensive reseach and cases you can serve a s48, for as long as that is complied with irrespective of tenant having no longer that status all rent that was not due is unsuspended and becomes due 100%, thanks.

[Guest Old_andrew2018]

Hi caroline,

 

Can I ask about deposit, and TDS, I did mention this in post #7.

If the deposit is still held would this go in part towards the rent that is outstanding, and was this deposit protected in a TDS.

 

Andy