Claim issued by L, Questions regarding litigation over withheld last month rent.

[Readalot]

Trying to help a relative and a very good friend af mine. We need some advice here.

 

The relevant facts. (A chronicle of a perfectly good tenancy going down the drain over some petty issues a principled T and a vengefull Agent, with L potentially being the victim once the dust settles)

 

- 12 month fixed term AST, Parties involved are Landlord, Tenant (my relative) and Agent. For brevity from now one L T and A correspondingly.

- There is a very generic and not detailed at all inventory which has never been signed by T.

- Deposit appears to be protected, and appropriate initial information about the TDS scheme (The Dispute service Ltd tds.gb.com) is given with the lease, but no proof of compliance (i.e. no certificate or ID number or any correspondence from TDS ) is provided.

- During the first 9 month of the lease almost no problems except almost half year delay with fixing leaking roof of garage, and one inspection when A went nearly berserk and started shouting at the T in front of his family including young children with threats to arrange a conflict between L and T in response to refusal to allow A to "inspect" bedrooms upstairs. Also apparently T when agreeing on inspection specifically explained on the phone that he will not allow anyone upstairs due to a 1 year old child sleeping with mother there at the time of 'inspection'. After that T asked A to leave and never show his face at T's home ever again.

- On one more occasion T has declined to allow the inspection of upstairs bedrooms in similar circumstances, but without any shouting involved at this time and it was another guy representing A.

- during 9th month of the lease a dishwasher (which is included in inventory) has died due to old age and A refused to repair/replace it. T went thru all the correct procedures for self-help, set-off (with my help) i.e. contacting A with a sequence of letters, taking quotes, etc..

- L served a valid section 21 notice ending on the last day of the fixed term lease.

- T continued with self-help/set-off procedure re dishwasher

- There are 20 or so unfair (as per OFT guidance) clauses in the lease. There are 4 clauses in the lease wich attempt to exclude repair responsibilities of L where relevant to white goods provided by L. In my opinion they all are either unfair or complete nonsense (tautology).

- There is an email from L indicating that L is expecting/proposing T to leave before fixed term ends. (Possibly related to expectation to make T leave before possession is obtained, potentially related to illegal eviction)

- A in the last possible minute has replaced the dishwasher to a new one.

- At one point in 10th month of the tenancy A send email 'notification of inspection'. T did not respond. A showed up at the specified time for inspection, T told him to take a hike and that A has not obtained appointment or permission to be here and that therefore A is trespassing.

- T withheld last month of rent and emailed A that deposit could be used in lieu of rent and that T will be happy to pay any reasonable breakages/dilapidation's on top of that after T vacates the house.

- The notice period has expired (recently) and the T has stayed therefore tenancy has automatically reverted to a statutory periodic tenancy. (Section 5 of 1988 housing act, I think.) A was informed by email. Apparently, there were some setbacks with finding alternative accommodation. Local council and shelter are now have been contacted and aware of the situation.

- On the first day after fixed term is over L with family showed up at the door giving about 20 minutes notice by email. T has offered them to proceed to kitchen to discuss the matters and have a 'cup of tea' and said that they surely will find an amicable resolution of any problems. L insisted to conduct an immediate inspection of upstairs bedrooms as a prerequisite to any discussion. T has denied (surprise, surprise). T made some attempts a few times to discharge the situation and discuss things, explain about covenant of quiet enjoyment, exclusive possession etc..without much good effect, only enraging L further. L claimed that he is the owner of the house and he is going to conduct 'an inspection' right now. At one point L made movements like he is going to run up the stairs, T stood on the stairway and told that that T will not submit to an unlawful search of his home and private residence and asked L to leave immediately. L refused, claiming again that He is the OWNER and the lease has expired. L also has mentioned that he is losing a lot of money everyday. After some more shouting Mr L and Mrs L left. Apparently some restraint to all the commotion was due to the fact that most of this was openly filmed on an iPhone. I've seen the record a few hours after the event and frankly found it to be quite hilarious, though T appeared to be quite shaken by all this. Apparently, again at this time Mrs T with a child were sleeping upstairs and were woken up by all the shouting. There were quite a few cries and screams of a very upset baby for the rest of the day. (some children apparently give their parents hell for hours after they are rudely woken up).

 

Now some litigation details.

 

A has issued a moneyclaim agains T, nicely timed so that the paperwork from the court arrives on the day after T was supposed to vacate the tenancy i.e. the day after fixed term lease expires (how cunning of them).

 

The claim is for one month worth of rent due under "an agreement between A and T" plus 130£ of court fee and solicitor fee. I stress that A is the claimant, not L is the claimant. The statement of truth on the claim is signed by A's solicitor with reference to A's authorisation.

 

There is a clause in the lease stating the the parties agree that "no other third party other than A may enforce the agreement"

 

T has intention to send acknowledgement of the claim, send appropriate CPR requests for relevant documents and information and file the defense in the last possible moment. Than eventually counterclaim when rent money will be withheld from deposit. One thing which is not clear is how A (not L) can start claim like that. There is an agreement between L and T and there is no agreement between A nd T. There is also section 22 of CPR practice directions which specifically forbids management agents signing statement of truth on behalf of L. (what about A's solicitor?) There is oppinion that only L or L's Solicitor can sign a statement of truth.

 

Any suggestions on how to best handle this would be very much appreciated.

 

More specifically there are some questions:

 

Can A issue claim referring to the lease as an agreement between A and T?

 

If not, how to best counter this?

 

If yes, how possible T can issue counterclaim for disrepair, money withheld from deposit and potentially harassment and breach of covenant of quiet enjoyment? Such counterclaim cannot be issued against A, only against L as far as I unedrstand.

 

Basically T wants to delay the proceeding both for possession and this last month rent claim as long as possible so that new accommodation can be arranged and potentially counterclaim if there is any merit in it.

 

There is an appointment set up with shelter/council legal people and aparently T will be given priority for rehousing and therefore qualified legal advice will be available. However, it would be great if T comes to them with pretty good understanding of things.

 

Wow! this is a long post... I hope someone will be able to help.

[MrShed]

I dont understand what the agent is claiming for? The POC must give an indication?

[Readalot]

I do not understand it either. The claim form refers to some non existing agreement between A and T.

From the claim form: "The claimants claim for £XXX being rent due under an agreement made between the Claimant and Defendant ... and interest ... pursuant to Section 69 of the County Court act 1984". Claimant is the agent, not the lanlord and obviously there is no agreement exists between the Agent and the Tenant.

 

Frankly, I think they are £%ing idiots. But maybe I just do not understand something... and maybe my common sense is not the best guide here.

[MrShed]

OK let me rephrase the question what rent are they claiming?

[Planner]

- L served a valid section 21 notice ending on the last day of the fixed term lease.

 

Then they didnt serve a valid s.21. A s.21 b notice must be dated after the end of the fixed term. The last day of the fixed term isnt after the end of the fixed term, notice that has been served is therefore invalid.

[Readalot]

OK let me rephrase the question what rent are they claiming?

 

T did not pay the last monthly payments. i.e. on and before 12 month lease period T paid letting agent fees (reference, admin, 50% of inventory check in fee etc...), deposit and 11 monthly rent payments. 12th montly payment was not paid. Efectively, T is about 5 weeks in rent arrears as of now.

 

T has offered twice by email separately to both A and L to now make weekly payments of rent while the statutory tenancy is in force and asked L and A to give T bank details for the payments. Both such emails were ignored.

[MrShed]

OK thanks for that clarification.

 

Right, on that basis then, the claim itself is valid (IMO) - as the tenant has not yet left, they cannot claim back the deposit and so cannot offset against rent. Chances are (depending upon the court) that they wouldnt allow this offset anyway - but of course it works out as if it is allowed in any event.

 

Why would T offer to pay weekly, when its a monthly rental period? Did T not have bank details from previously paid rent in any event? I hope that T is keeping the rent due in a seperate account...

[MrShed]

Coming back to obviously your main question here - can A claim this or only L?

 

I assume L has not been marked down as a joint claimant?

 

Who signed the TA, L or A?

[Readalot]

- L served a valid section 21 notice ending on the last day of the fixed term lease.

 

Then they didnt serve a valid s.21. A s.21 b notice must be dated after the end of the fixed term. The last day of the fixed term isnt after the end of the fixed term, notice that has been served is therefore invalid.

 

This is a great news. Could you possibly give a reference to source of this info i.e. what T shall tell court regarding validity of this section 21 notice.

 

The lease is for period from 12/08/2009 to 11/08/2010 inclusive. The first rent payment is due on 12/Aug/2009. 'date of expiry' on the section 21 notice is "From 11/08/2010". Could you please confirm that such notice is invalid and maybe some pointers where to look for confirmation of this. If you are correct, and such notice is invalid it would be indeed a very very good news for the T.

 

Thank You.

[Readalot]

Coming back to obviously your main question here - can A claim this or only L?

 

I assume L has not been marked down as a joint claimant?

 

Who signed the TA, L or A?

 

As I quoted Particulars of Claim start with "The Claimants claim... rent due under an agreement made between the Claimant and Defendant..."

 

In field Claimant - name and address of The Agent, no Landlord mentioned.

 

Signed by Claimant's solicitor with statement that "The Claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement"

 

My apologies if I did not make it perfectly clear from the first try. Thank You.

[Readalot]

Who signed the TA, L or A?.

 

TA signed by A.

[Readalot]

Right, on that basis then, the claim itself is valid (IMO) - as the tenant has not yet left, they cannot claim back the deposit and so cannot offset against rent. Chances are (depending upon the court) that they wouldnt allow this offset anyway - but of course it works out as if it is allowed in any event.

 

Why would T offer to pay weekly, when its a monthly rental period? Did T not have bank details from previously paid rent in any event? I hope that T is keeping the rent due in a seperate account...

 

 

My understanding that T is treating the section 21 notice as valid and is expecting possesion proceedings to start very shortly. T is looking for alternative accomodation and expects to leave teh property once alternative accomodation is secured. Since it is not clear when it will happen T do not want to overpay.

 

I understand that T expects to vacate the house and the lease and deposit matter ended by the time the last month rent matter gets to the hearing and is considering counterclaiming for disrepairs, and breach of covenant of quiet enjoyment. It is confusing and cleare how to counterclaim in this case if the claim for last month rent is started by A not by L.

[MrShed]

If the TA has been signed by A, then A is the landlord LEGAL agent.

 

I believe (but PLEASE dont quote me on this) that A may well be able to claim rather than L in this scenario.

 

Without wishing to complicate the matter too much....what disrepairs is T intending to claim? I would also say that breach of covenant will result in nominal damages if any whatsoever. These breaches are not seen as major by the courts, and indeed can often be seen as frivolous (not stating that this is correct, just how the courts view them).

[Planner]

Its all in the housing Act 1988 (s.21 funnily enough!)

 

Heres a easier to read fact sheet from our good friends at the Landlord Zone http://www.landlordzone.co.uk/pdf/servingS21.pdf

 

Looking at it logically, we would all agree that if a LL had served a s.21 notice expiring on day 60 of the tenancy agreement, we would all agree it was wrong as the fixed term was still in place. If he had served one that expired on day 120, again we would all agree it was incorrect as the fixed term was still going. So if he served one expiring on day 365, the same logic applies the notice is invalid as it has expired within the fixed term.

 

A s.21 b noice should be dated to expire after the end of the fixed term, in this case 12/08/2010.

[Readalot]

Excellent! Thank you very much Planner!

[Readalot]

Its all in the housing Act 1988 (s.21 funnily enough!)

 

Heres a easier to read fact sheet from our good friends at the Landlord Zone http://www.landlordzone.co.uk/pdf/servingS21.pdf

 

Looking at it logically, we would all agree that if a LL had served a s.21 notice expiring on day 60 of the tenancy agreement, we would all agree it was wrong as the fixed term was still in place. If he had served one that expired on day 120, again we would all agree it was incorrect as the fixed term was still going. So if he served one expiring on day 365, the same logic applies the notice is invalid as it has expired within the fixed term.

 

A s.21 b noice should be dated to expire after the end of the fixed term, in this case 12/08/2010.

 

Your argument would work perfectly well if we were talking about a periodic tenancy, because it would be subject to s21(4). However, in this case we are talking about a fixed-term tenancy and as such s21(1) is applicable. As far as I can see the only 2 requirements to the notice, namely, 21(1)(a) - that fixed term tenancy has come to the end; 21(1)(b) - more than two month notice is given. 21(1) does not even mentions any notice expiry date, unlike 21(4).

 

Basically the question here is whether 21(1)(a) referes to the time of notice expiration or to the time of, let's say, possesion hearing.

 

I am digging here and looking for further confirmation that your point is corect, because a TRO from local concil has an opinion that the section 21 notice we discuss is indeed valid, even after I brought to her attention your arguments.

 

Actually, if we follow 21(1)(a) to the letter, than even if on "day 1" of fixed term 1 year AST L serves s21 notice stating that he is requires possesion of the property, for example "from day 65" than he is indeed entitled to start possesion claim on the "day 366" of said tenancy.

 

Any thoughts?

[MrShed]

But Readalot, you have absolutely confirmed Planners point in your response.

 

You said:

 

11/08/2010 inclusive. The first rent payment is due on 12/Aug/2009. 'date of expiry' on the section 21 notice is "From 11/08/2010

 

Then in the last post you said :

 

21(1)(a) - that fixed term tenancy has come to the end

 

Planners point is that the notice is not valid as its expiry date was PRIOR to the end of the fixed term. From what you have said, that is the case, he is correct, and notice is invalid.

 

The notice should have expired on the 12th, or AFTER the 11th. Not "From" or "on" the 11th.

[Readalot]

Mr Shed. Completely agree with most what you said and there is no argument about the facts of start and end of tenancy or expire date on the notice.

 

But here is a scenario to consider.

 

Let's imagine that T submits an objection to an accelerated possesion procedure and requests the hearing. Than I come to the hearing as a litigation friend of T and argue:

 

Readalot:

The section 21 notice has expired before the AST fixed term has ended and therefore it is invalid, please dismiss L's case

Judge:

Mr Readalot, based on your name I conculde that you know how to read. Is it correct?

Readalot:

Yes.

 

Judge:

Mr Readalot, than please read for me section 21(1) of the Housing Act 1988.

Readalot:

(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and

(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice stating that he requires possession of the dwelling-house.

 

Judge:

In what you just read is there anything about notice expire date?

Readalot:

No there is nothing about expire date.

Judge:

I am satisfied, that (a) at this moment 28th of September 2010 the fixed term of the AST has came to the end and no other than statutory periodic tenancy is in force and (b) that more than two month notice has been given. I therefore MUST grant the possesion order. I also order T to pay L's legal costs and suggest next time to read more before wasting court's precious time.

Landlord:

Ha! Ha! Ha!

Could you offer better answer for me to the question "In what you just read [s21(1)(a)] is there anything about notice expire date?"

 

Please understand, I am not trying to argue with anyone here just for sake of an argument. I really just want to know what to do in the described above scenario.

Edited August 25, 2010 by Readalot
spelling

[MrShed]

Dont worry, I realise you arent arguing for the sake of it, its an interesting scenario.

 

Basically, your question isnt about notice expiry date, but whether section a applies at the time of expiry of notice, or at the time of court hearing.

 

Is that correct?

[MrShed]

You know what...?

 

I think you make a very good, and after just reading the relevant sections of the HA 1988, a very correct point.

 

It would APPEAR that from the act, a notice can be served to expire BEFORE the end of the fixed term, as long as this notice does not expire less than 6 months into a tenancy! Clearly such a notice couldnt be ACTED upon prior to expiry of the fixed term, but it is still valid from the look of it....

 

I get the feeling that you and I are both missing something here, and clearly the conversation would be very different if the fixed term was 6 months rather than 12, but on the face of it I will do a full about turn and say that I think I agree with your point...!

[MrShed]

Of course, the other question here is when was the notice served...?

[Readalot]

Basically, your question isnt about notice expiry date, but whether section a applies at the time of expiry of notice, or at the time of court hearing.

 

Is that correct?

 

Correct.

 

One consideration here is that effectively by serving the notice which expires one day earlier than the end of the fixed term. L would effectively (maybe) shorten the fixed term by one day. Logically, he than would be able to shorten it by more than one day, as planner has demonstrated. Which does not seem to be fair.

 

I am looking for a way to argue this.

[Readalot]

Of course, the other question here is when was the notice served...?

 

The notice was served in 70 days before the expiry date. Nothing to talk about here.

[MrShed]

Correct.

 

One consideration here is that effectively by serving the notice which expires one day earlier than the end of the fixed term. L would effectively (maybe) shorten the fixed term by one day. Logically, he than would be able to shorten it by more than one day, as planner has demonstrated. Which does not seem to be fair.

 

I am looking for a way to argue this.

 

I cant see that that is the case. Any possession order prior to the end of the fixed term would have failed, it is only the notice that is valid.

 

The notice was served in 70 days before the expiry date. Nothing to talk about here.

 

Thought as much, was just checking

[MrShed]

I cant see that that is the case. Any possession order prior to the end of the fixed term would have failed, it is only the notice that is valid.

 

To perhaps embellish upon this, there is nothing in either S20 or S21 that states that the act of expiry of a valid notice converts a fixed AST to a SPT.