Distress For Rent "Costs" - Need Help Please

[cowboy1204]

We run a small shop and basically have an A***hole for a landlord.

 

Whilst our bank, accountants and solicitors are saying that under the current economic situation thousands of businesses have re-negotiated their Rents so as to pay monthly, our Landlord insists we stick to paying Quarterly in advance, some £10,148.09 !

 

Our rent was due 1st April but without the Easter weekends takings we were struggling. I BACS £5148.09 to the landlord and telephoned his office to say that we would get the rest to him on the tuesday after bank holiday (6th April). On 6th April I BACS £5000 to him as promised.

 

On weds PM 7th April I have a Bailiff in attendance wanting to Levy Distress on our goods for £10,148.09. I explained we had paid, even showed him our online banking, but he said that his client (our landlord) had not received the funds. After some persuading he listed our goods, gave us 7 days before he returned, and wouldn't leave without collecting £824 in CASH.

 

Friday 9th April our bank has done a trace and said that the money went to our landlords bank account as requested, yet still hasnt appeared in his bank. Monday 12th April money turns up in Landlords account and is listed as being paid on 1st April and 6th April respectively - both before Bailiffs visit. Landlords accounts person appologises and states that the LloydsTSB had a "major computer problem straight after the bank holiday" and that our snotty landlord was writing them a "strong letter" to complain.

 

My problem here is the Bailiffs are saying they collected what they were instructed to collect and that I have to take the matter of the £824 up with their client. They are saying that they were instructed on 1st April, so at any rate they should of only been instructed to collect £5000?

 

Their charges for 1.5 hours/ 1 man in attendance (and I didnt see a Van!)

 

£191 inc Vat as per legislation

93p a day walking possesion

£520 + VAT for the Van, Insurance, and attendance.

 

Legally I know I can get the Levy Fee down to £137 (as only £5000 owing at the time they were instructed).

 

But its the "reasonable charges" I want to know what can I do about this £520 + VAT ??

 

At that cost for 1.5 hours of chat and paperwork maybe I'm in the wrong Job?

 

I've never heard my solicitor swear, but when I told him he wasn't very polite about our Landlord - something about him playing with himself I think - could really understand !!!!

 

Any help or comments would be greatfully received.

[comebackjimmy]

Hi

 

I seem to remember somewhere else on this forum a case coming to court (I think it was against John Marston) where it was ruled the van fees could not be levied unless the van was actually used to remove goods.

 

Maybe some other CAGers can assist.

 

Who was the bailiff?

[seanamarts]

I would personally place a claim against your landlord, then he can make a claim against his bank. Then let him quibble the fees the bailiff charged, It may make him think twice in future about involving the bailiffs as quick as he did.

Wouldnt surprise me in the least if this was Marston's bailiff.

[cowboy1204]

Bailiffs are DBS limited - Part of Churchills Recovery Services based in Warrington.

 

Very interested about the Van, I have emailed them for a breakdown of their costs.

 

Yes I may claim against our Landlords, what have I got to lose? They are already wasters!

 

Thanks for your help so far guys.

[impecunious]

Did your landlord take you to court over alleged rent arrears?? Just wondering why Bailiffs should be involved without a CCJ? Am I gettting confused or do different rules apply to rent arrears?

 

All seems to have happened extremely quickly.

 

Impecunious!

[cowboy1204]

Under the Distress For Rent Rules (Amendment) 2003 a Landlord can appoint a Bailiff if your rent is 24 hours late! It's unusual but it can happen.

 

Our solicitor said that not even "London" landlords act that quickly in his experience. Thats why we both think our landlord is a t****er!

 

This is one of those laws written hundreds of years ago. There are changes going through from 2005/7, but the only change that hasn't gone through parliament yet is the one preventing Bailiffs from this action without a Court Order! Just my luck.

 

Maybe its because all those muppets that sit in the house of lords are all landlords?

[impecunious]

That seems very HARSH!!!!!

 

First time I've ever heard of it!!

 

Sorry to hear you're having to go through all this. Have you considered moving premises??

 

Impecunious!

[Zamzara]

As usual, no 'reasonable costs' can be charged until goods have actually been levied.

 

In addition, for rent arrears, unlike council tax they cannot charge for 'attending to remove' even when a levy has been made. They can only charge the costs for actual removal and sale.

 

If you actually paid the debt, no costs can be charged, and the landlord must return any money paid. He is responsible for the bailiffs he appointed to act as his agents, even if he is now out of pocket.

 

Did your landlord take you to court over alleged rent arrears?? Just wondering why Bailiffs should be involved without a CCJ? Am I gettting confused or do different rules apply to rent arrears?

 

Distress can be levied for rent arrears without any court order for tenancies other than assured, assured shorthold, or protected tenancies, but this is due to be abolished in future.

[cowboy1204]

Yes Zamzara is quite correct; this is due to be abolished. But as I have said; in the amendments to this act it looks like the last thing to be done!

 

They attended to remove, but we saw no van and no second bailiff during the 1hr 45min visit. With what we have done with the place in fittings and fixtures, and what we sell, they would of needed ladders, tools, and maybe 2 other bailiffs to remove the goods the bailiff listed and maybe the whole day to do it. It is my opinion therefore that they had no intention of removing goods on that particular visit.

 

We only opened last July, and we have put our heart & soul and money into the fit-out. If we hadn't I would be telling the landlords to stick their premises where the sun won't shine !

[tomtubby]

We run a small shop and basically have an A***hole for a landlord.

 

Whilst our bank, accountants and solicitors are saying that under the current economic situation thousands of businesses have re-negotiated their Rents so as to pay monthly, our Landlord insists we stick to paying Quarterly in advance, some £10,148.09 !

 

Our rent was due 1st April but without the Easter weekends takings we were struggling. I BACS £5148.09 to the landlord and telephoned his office to say that we would get the rest to him on the tuesday after bank holiday (6th April). On 6th April I BACS £5000 to him as promised.

 

On weds PM 7th April I have a Bailiff in attendance wanting to Levy Distress on our goods for £10,148.09. I explained we had paid, even showed him our online banking, but he said that his client (our landlord) had not received the funds. After some persuading he listed our goods, gave us 7 days before he returned, and wouldn't leave without collecting £824 in CASH.

 

Friday 9th April our bank has done a trace and said that the money went to our landlords bank account as requested, yet still hasnt appeared in his bank. Monday 12th April money turns up in Landlords account and is listed as being paid on 1st April and 6th April respectively - both before Bailiffs visit. Landlords accounts person appologises and states that the LloydsTSB had a "major computer problem straight after the bank holiday" and that our snotty landlord was writing them a "strong letter" to complain.

 

My problem here is the Bailiffs are saying they collected what they were instructed to collect and that I have to take the matter of the £824 up with their client. They are saying that they were instructed on 1st April, so at any rate they should of only been instructed to collect £5000?

 

Their charges for 1.5 hours/ 1 man in attendance (and I didnt see a Van!)

 

£191 inc Vat as per legislation

93p a day walking possesion

£520 + VAT for the Van, Insurance, and attendance.

 

Legally I know I can get the Levy Fee down to £137 (as only £5000 owing at the time they were instructed).

 

But its the "reasonable charges" I want to know what can I do about this £520 + VAT ??

 

At that cost for 1.5 hours of chat and paperwork maybe I'm in the wrong Job?

 

I've never heard my solicitor swear, but when I told him he wasn't very polite about our Landlord - something about him playing with himself I think - could really understand !!!!

 

Any help or comments would be greatfully received.

 

 

With the country (sorry WORLD) in the grips of the worst recession that we have known I am astounded that a Landlord can act is such a despicable manner.

 

Do you by any chance have a rental deposit?

[cowboy1204]

Yes we have, just a mere £25,000.

 

And yes I know what you mean, thankyou for your support.

[tomtubby]

Yes we have, just a mere £25,000.

 

And yes I know what you mean, thankyou for your support.

 

I was think about the legal case of John Fuller v Happy Shopper and the right to equitable set off. I have not had the time to read the case fully but I am aware that many landlords are very wary of taking action for unpaid rent becuse of this case.

[cowboy1204]

Dear all

Earlier this year we leased a shop.

Because of major problems at the land registry caused by our landlord’s solicitors who were totally useless,

we moved in without the lease in place.

Only a “gentleman’s agreement” forced us to pay the rent.

We paid a premium of 25,000 (yes honest) towards the landlord’s costs

of renovating the building before we moved in,

and started paying the 7,500 a quarter rent.

However, by the 6th April we were struggling a little to keep up the payments

and owed 10,158.00 to our landlord that should have been paid on the 1st April.

On the 6th April we BACS 5,158.00 to our landlord along with an email

promise to clear the balance of 5,000 in the next few weeks.

It was the best we could do.

On the 8th April a Bailiff visited our premises demanding 10,158.00

or he would remove our goods.

An old law states that in the case of a business lease a bailiff can be instructed

the day after rent is missed without seeking any court action!

We explained that firstly we had just paid 5,158.00 to the landlord,

and showed him our online banking statement clearly showing the funds going into our landlords account.

On consulting with our landlord it transpired that a problem with HIS online banking system

prevented him from showing the 5,158.00 coming into his account

(one week later his statement showed the funds going into his account on the 7th April,

the day before he instructed the bailiffs).

We also explained that there was no lease in place which the bailiff just ”laughed at”.

The bailiffs, refusing to believe us, wouldn’t leave until they listed our goods,

and charged us 800 for a van, petrol, insurance

and a fee based on the 10,158.00 that they said was owing.

The bailiff was in a car!

( We paid off the 5,000 during the next 3 weeks and we are now up to date with the rent by the way).

Now we are aware,

that acting only as agents for our landlord that the bailiffs

can get away with a lot and let’s face it they often do.

They can blame the landlord.

But does that make them above the law?

We have sent several emails to the bailiffs asking them to itemise how they came to the 800,

they have refused to do this claiming they acted “within the law”.

If you recalculate this according to the law,

because we clearly only owed 5,000 at the time of their visit,

this knocks approximately 200 off the bill.

My question to anyone out there reading this is:

I was about to take the bailiffs to court, my reasoning being that

1. They over-charged us; and in any event

2. They acted outside of the law as our lease was not signed until 9th September 2010 !!

So in other words they had no legal right at all to enter our premises

and demand money as no agreement existed for them to act on.

Then I had the thought that demanding money without any legal right to do so is theft?

Or at worst this is extortion?

So should I actually be getting the Police involved here?

Surely with no legal right to do so, saying

“pay me 800 in cash or I’m going to take your goods from your premises”

in this case IS THEFT?

Anyone out there thinking like me?

 

Thanks in anticipation for your comments.

[Thegreenpimpernel]

Make the complaint to the police just to get it on record, but expect NOTHING from them.

 

I'm not an 'expert' Mr Cowboy, but i know a bit about commercial premises and at first glance there seems to be a few thing wrong here.

 

My understanding is that there needs to be a lease to levy distress for rent, and as you say the rent must be a day over the due date as specified in writing, or implied through the frequency of previous payments.

 

Can you tell us the day you took over the premises, what amounts have been paid and the dates of those payments.

 

Why is a payment of £10,000 due when it's £7500 a quarter?

 

Did you keep any paperwork from the bailiff. If he didn't give you a receipt, call HMRC, they would love to know about it, and i would rather have the police on my back any day rather than them!!!!

 

Please try to provide the answers to the above, but on the face of it, there was no legal means to levy for rent and the fees, are as usual, total nonsense.

 

I need to brush up on the rules, its been a while and its rather late tonight.

 

BTW - these bailiffs usually act at no cost to the landlord, so your conflict will be with them at no risk to your relationship with your landlord.

[cowboy1204]

Yep you're right it's late so I'll be brief:

 

We moved in on 1st jan and paid 1st quarters rent plus the 25 grand.

 

We used some of the landlords builders to do some of the work 4 us on our fit out which came to approximate 2500 which is the difference. This labour was invoiced to us by the landlord but was therefore not even subject to the distress for rent act anyway!

 

Hope that helps, and thankyou

[cowboy1204]

PS part of "our" premises was found to be on the neighbours lease when our solicitor checked with the land registry. Being luckily another tenant of our landlords, his solicitor had to carefully persuade the neighbour to have some of our premises removed from his lease. His solicitors failed therefore to do there homework properly resulting in the lease not being completed until 4 weeks ago. Essentially no lease when the bailiffs visited and the landlords error too!

[cowboy1204]

PPS I have all paperwork from bailiffs Inc their "breakdown" which reads exactly as follows:

 

" van, INS, fuel. £564.00+vat"

(plus the distress on the 10 grand making the total over £800)

[BLF]

The best you can hope for is a reduction to the levy fee as the bailiff attended for the wrong amount, and get your 200 quid back.

 

"They acted outside of the law as our lease was not signed until 9th September 2010 !! So in other words they had no legal right at all to enter our premises and demand money as no agreement existed for them to act on"

 

Although you have no written agreement, you have entered into an "Oral tenancy Agreement" with the LandLord. An agreement all the same.

 

"Then I had the thought that demanding money without any legal right to do so is theft? Or at worst this is extortion? So should I actually be getting the Police involved here? Surely with no legal right to do so, saying “pay me 800 in cash or I’m going to take your goods from your premises” in this case IS THEFT?"

 

No, Not Theft. Formal siezure on behalf of your LL for Rent Arrears And costs incurred by the Bailiff.

 

"Anyone out there thinking like me"?

 

Unfortunatly not, however, you will have been overcharged for the levy fee as the amount of rent owed was incorrect at the point of levy. You need to write to the bailiff and ask for your money back. That is an OVERCHARGE, however it IS a mistake as the bailiff had the wrong figure.

 

Also bear in mind, even though you told the LL you would pay 5158.00 vian Bacs and forward the rest in a few weeks, he would normally still instruct a bailiff to cover himself incase you didnt pay the rest.

 

Go get your 200 quid back though, it is due back to you.

EDIT - usually the bailiff would charge no more that £235 inc vat for the Van fee + Levy fee and any waiting at 70.50 PH (Inc vat) that is seen as REASONABLE.

Edited October 8, 2010 by BLF

[Thegreenpimpernel]

BLF said:

 

"Although you have no written agreement, you have entered into an "Oral tenancy Agreement" with the LandLord. An agreement all the same."

 

My understanding was that even if there was a lease, where no due date is specified, the due date can be inferred by the frequency / date of previous payments.

 

In this case there is no lease AND there has not been the opportunity to establish a payment pattern and therefore an implied due date.

 

I suspect the only legal remedy in this case was the repossession of the building (via a bailiff) then a futile attempt to recover rent due under an oral agreement.

[BLF]

"In this case there is no lease AND there has not been the opportunity to establish a payment pattern and therefore an implied due date."

 

Due date would have been agreed oraly, its still agreed, however it gives the rent payer more leeway as its harder to enfore ( He said / She said )

 

"I suspect the only legal remedy in this case was the repossession of the building (via a bailiff) then a futile attempt to recover rent due under an oral agreement"

 

This is neither a viable option for LandLord or Tennant. If the ORAL lease is ended via forfiet, the LL will not get his money and tennent will loose the money spent for the renovations.

 

Using the bailff to sieze assets means that if rent isnt paid, he will still get his money via sale of the goods. However, this option still isnt good for the tennent.

 

I believe best option for tennant is to get the difference back in the levy fee and possibly argue the van fee was a wee bit on the heavy side.

[Thegreenpimpernel]

The repossession of the building is off the table. The tenant has now got a lease and as i understand it is not in breach of it.

 

I'm not saying this enforcement doesn't happen every day, but that's not to say its legal!

 

I don't want to get cowboy's hopes up, but i think the entire action was unlawful (no lease - no distress for rent) and all the fees could be repayable.

[Thegreenpimpernel]

I hope this link is within the rules. It is from a prominent commercial rent recovery firm.

 

http://www.dbsltd.net/downloads/Guide.pdf

 

In support of my opinion, i draw your attention to the phase under the heading 'distraint', it clearly states that a LEASE must exist.