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Hi have been lurking here for a while and recently initiated a county court claim following advice here as my landlord and their letting agents kept refusing to protect my deposit despite having a tenancy since sep 2008!

 

However *just* before I filed company A sold the property I live in (purpose converted house -> Non-HMO flats) to company B (same director) and subsequently is now liquidating company A.

 

Company A owned 6 properties including mine, my flat block was the only one without a mortage on it.

 

This meant company A at sale went from a healthy but Illiquid balance sheet, onto an insolvent balance sheet.

 

Company B has also been accused by company A liquidators that it bought the property massively undervalue (approx 50%). Company B now has a mortgage on the property for approx 1/2 its value. (liqudatiors are preparing to hopefully have the transaction reversed)

 

Absolutely no communication from the landlord, and the agent (a close personal friend) is acting as if nothing has happened and it is business as usual.

 

Also when I rented the flat I was told it was on an "all bills except pre payment electric" where included in the rent and this is clearly reflected in the price against similar properties.

 

Now a demand for council tax since I have been resident has landed, what's worse is that before I could change the locks (I was naive) my tenancy agreement showing this has been lost/stolen (I suspect when "repairs" where done when I wasn't there, only found out afterwards). I was however lucky enough to have a witness when I signed up in 2008 who is willing to testify in court (I and my witness made a point of clarifying the coucil tax situation with the agent 3 times)and other tenants of the same building who are also now being told council tax is included but have received demands.

 

So now I am in a pickle, when I issued proceedings for the deposit it was against company A after the date of sale, and unless the liquidators are successful then it would appear there is no prospect of a creditors dividend past 3-10%.

 

I have not yet issued a court claim against the council tax issue.

 

Do I now drop the case and start again suing company B/company A as joint defendants? As regards the council tax I am assuming the agents (for their conduct) and company B as they have inherited the liability upon the sale?

 

Would really appreciate a point in the right direction here, if I was to win the deposit back and three times it, I could clear most of the council tax arrears and probably pay the rest myself (and sue once moved out, I could do without the agent harassing me)

 

Many thanks in advance :-D

 

(could someone please edit the title for mispelling?)

Edited by annoyed_tennant
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Bump for help please?

 

Have done some legwork/reading and it would seem to me that the way forwards is to use form N244 and apply to the court to add company B as a defendent and claim against both as joint defendants , then when it comes to enforcement (I fully expect to not get paid without it), I could enforce against either depending on what the liquidators actions on company A are? Whatever happens it is likley that one company will hold a significant equity stake in my flat block against which I could register a charging order if necessary!

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Can you clarify a couple of points:

 

Absolutely no communication from the landlord, and the agent (a close personal friend) is acting as if nothing has happened and it is business as usual.

Is the agent a close personal friend of the landlord (by which I guess you mean the person behind the company the owns/lets the flat), or you?

 

Is the agent acting for company A, company B or the owner/director of whichever company personally?

 

Now a demand for council tax since I have been resident has landed, what's worse is that before I could change the locks (I was naive) my tenancy agreement showing this has been lost/stolen (I suspect when "repairs" where done when I wasn't there, only found out afterwards).

 

You are saying that the landlord, or agent of same, burgled your flat and stole your copy of the tenancy agreement? Was anything else taken? Did you report the theft to the police?

 

What about the other three tenants? One of them at least must have a copy agreement which should show the original situation. You could SAR the landlord in order to obtain a copy of your agreement.

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The owner/Landlord has given me no comms that the flat block was being sold/change of landlord (the company). The "agent" runs his own personal separate management company, they where originally working for company A, they work for company B now (along with other landlords). The company a/b directors and the agency director are personal friends. The agency keep telling me that nothing has changed and to carry on paying them the rent (they inisit on cash but when the previously "mislaid" some cash for a week, I switched to paying by cheque, which their complaining about)

 

My tennancy went "missing" right after some "emergency repairs" (nothing of the kind and no attempt to contact me for access) where done by the agents to the toilet, agency where using their own keys. After the event I ofc changed my front door locks (which there not happy about now as I still refuse to provide them a key). However in that same week I noticed that my folder that was on the side marked "tennancy ****" had gone missing. It's *possible* that I lost it (have turned place upside down) and it isn't here, the timing fits but nothing else was taken and I can't prove anything so I didn't report it.

 

I do have a couple of tennants of other flats willing to provide evidence and testify in court that they agreed to let the flats on the same basis, some of them are now beginning to recive council tax demands too. From what I can piece together, they were paying council tax for when the place was a giant house and "forgot" to tell the council it was now flats. When the council twigged *10 years after conversion* the new bill was a lot higher and they didn't pay it instead telling the council to persue the tenants :evil:. This is despite the fact that I as have the other tenants been on the electroal role for separate flats!

 

 

I asked the agency for a copy of my tenancy and they said that they have lost it (convenient eh!)

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  • 4 weeks later...
  • 5 months later...

Would appreciate any views on what to do now please?

 

I have a final court hearing in June and have 2 issues

 

1) At a "case management conference" the other side finally took the time to appear, late! As a result a multi part order was made by the judge. The main question I have is that the ex-landlord said he intended to counter-claim for vague rent arrears and damage to flat. The order clearly stated such a claim was to be filed (out of time) within 14 days and filed. The judge verbally explained to the Landlord that served meant served on me and filed meant at court with the fee. Day 14 came and went. On day 25 court revived the counter-claim. On say 26 I receive a second class later detailing counter-claim. Counterclaim is very vauge/short and contains no detail apart from rent arrears of x and damage to flat of x. I query to the court why they accepted the counterclaim. They promise to refer to the judge as the office have cocked up. I ask they do so urgently as I only have until day 28 to file/serve a defence to counterclaim. Despite much chasing on day 49 I still have no answer from the court. Final hearing in 3 weeks ish now. I haven't filed a derfence not least because the claim is so vauge it could be for anything! Should I assume that the judge *should* simply dismiss there counter-claim with no argument? Outside court the landlord offered to drop their (vauge) counterclaim if I dropped mine. I considered for a minute and declinded knowing that the Potts & Hays vs Densley case may be decided in my favour and he would be hung drawn and quartered. I considered I would have a good chance of defeating any counter-claim (no inventory taken, witness who cleaned flat for me before I left, pictures, **** hole when moved in etc). Bank statements with cheques for rent.

 

2)I have seen news of the latest judgements and they don't make for pretty reading. At the case management conference the other side indicated they had protected the deposit the day before with the DPS. They actually protected it the day after. I have proof of this. This was long after the tenancy ended. However the idiot hasn't sent me the "prescribed information." Fortunately unlike "Potts" I used the claim wording from this website and believe I have clearly pleaded the prescribed information as well. Do I just keep quiet, hope nothing turns up and then use this to continue the case?

 

Any advice on how to proceed?

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My advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted.

 

 

Risks of litigation

 

Unfortunately, the type of questions you are asking boil down to 'Can I win my claim?' This is a question that only the Court which hears the case can decide.

 

The Court will take into account the evidence which is given at a hearing by you and by, or on behalf of, the landlord. This evidence will only emerge by cross-questioning of the witnesses.

 

The outcome of a Court case is never certain.

 

 

Defence to counter-claim

 

Where the landlord alleges facts, such as the existence of particular documents or events, it is for him to prove them. All that is needed from you, prior to the hearing, is a clear denial of such self-serving or unsupported points as he makes. In a claim over disrepair, he who alleges the disrepair is the one who must prove it.

 

But if you have been ordered to file a defence to the counterclaim, or other pleadings, and you do not do so, then you will probably automatically lose the case by default; or the hearing might be adjourned to the next available date if you are very lucky, to give you time to comply.

 

 

Tenancy deposit

 

The Court of Appeal has decided, in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected by the landlord, that section 213 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its payment into a TDS scheme) are available to the Court. As this can only be the case if the tenancy is still on-going, the penalties for non-protection of the deposit are NOT available once the tenancy has come to an end: the Court decided that the tenant CANNOT succeed in a claim for three times the deposit once the tenancy is over.

 

The practical effect of this is that the tenant must make his claim at the BEGINNING of the tenancy. Remember, a shorthold tenancy can't be brought to an end by the landlord, by notice, in the first six months; and can't be ended by a section 21 notice at any time after that, either, if the deposit is not protected.

 

In my opinion, the county court could possibly make a sympathetic finding in your favour, because the Act tends to favour the tenant, in terms of returning your original deposit. It is only in relation to the penalties that the Court of Appeal has severely limited the availability of the remedy.

 

 

In Potts, the tenant might still have won, if she had raised the related point that the landlord had failed to provide her with the prescribed information pursuant to section 213(5). But she failed to do so (she based her claim solely on the landlord's failure to pay the deposit into an authorised scheme), thus she lost the case.

 

If, but only if, you have expressly mentioned section 213(5) in your claim, then you might win even though the tenant lost in Potts.

 

 

If you didn't add company B as a defendant, any judgement against the landlord will probably never be paid if the landlord company has become insolvent; but your prospects of winning a claim for penalties are now less than they were before the Court of Appeal's decision in Gladehurst.

 

 

Disrepair and rent arrears

 

The original deposit is now protected in a TDS scheme, and it belongs to you, so it will probably not be affected by the insolvency of the landlord provided you win your case in regard to disrepair and rent arrears. You, of course, will produce documentary evidence from your bank, or the rent book completed by the landlord, proving that all the rent payments were made.

 

If the landlord alleges damage, he must prove it. If there is no check-in inventory, the landlord really doesn't have a leg to stand on; so the tenant is in a stronger position where there is no check-in inventory.

 

 

Read the FAQ about what deductions the landlord can lawfully make from the deposit -

 

- Unfair deposit deductions

 

That FAQ explains the concept of 'betterment', and why the landlord is not allowed to make any deduction for betterment.

 

 

Also read this document - Fair Wear and Tear

 

It explains some aspects of the law regarding fair wear and tear, applying the principle that a tenant is NOT liable to pay for the cost of remedying ordinary wear and tear.

 

 

Also, the landlord can't ask the tenant to pay (i.e. out of the deposit) for the cost of repairs that the law requires the landlord to do. What those repairs are is explained in this FAQ -

 

- Disrepairs in privately rented accommodation

 

 

Council tax

 

If the council tax you mention fell due AFTER your tenancy ended, the landlord will be legally liable for payment, not you. You have not mentioned such trivial matters as what dates the tenancy began on and ended on, or who ended it and how.

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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Company B was added as a defendant, when I had an application heard by the same judge who agreed to allow me to add them to the claim within 14 days which I duly did and the court have amended the paperwork.

 

The court (finally) got back to me today to say that, indeed, the landlords counter-claim is de-barred and have struck it off, so now worries on that front!

 

In my particulars

"[sic]or the applicant did not received the prescribed information concerning which Tenancy Deposit Scheme was to hold the deposit, within 14 days of the defendants receipt of the deposit (in accordance with section 213 (3) of the Housing Act 2004)."

 

Regarding the council tax, I have informed the relevant council on the day I moved out that I would no longer be living there and giving them the Landlords address of where to send any further bills. The liability relates to when I was resident in the property. The tenancy was ended by me serving notice as a perodic tennat. I achived this by leaving notice at the company B's registered address (which conviviality is Company A's address as well!). As the mail system wasn't working because of weather, me and a witness went and delivered it personally. This was done to end on the last day of "a rental period". The other side do not dispute any of this. The flat is still up for rent with no tenant.

 

Tenancy ran from sep 2008 to Jan 2011. Property was located in Somerset.

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In my particulars

"[sic]or the applicant did not received the prescribed information concerning which Tenancy Deposit Scheme was to hold the deposit, within 14 days of the defendants receipt of the deposit (in accordance with section 213 (3) of the Housing Act 2004)."

 

 

Oh dear!

 

The case of Potts v Densley is really something you should most urgently read. The claim you need to make in this respect is for breach of section 213(5) [provision of prescribed information], not section 213(3) [securing the deposit]. If you claim only under section 213(3) you are likely to lose for the same reason the tenant lost in Potts. You must claim under both 213(3) and 213(5).

 

Have you considered seeking leave of the court to amend your claim out of time?

 

If you simply don't understand the reasoning of the Court in that judgement, you might want to consider taking legal advice before the hearing, or taking a Solicitor or housing advisor to the hearing with you.

 

 

 

Regarding the council tax, I have informed the relevant council on the day I moved out that I would no longer be living there and giving them the Landlords address of where to send any further bills. The liability relates to when I was resident in the property.

 

 

The tenant is normally liable for paying the council tax that arises during the tenancy. I note that you say the rent was inclusive of council tax, under the terms of the tenancy agreement, but you are unable to produce the written agreement. It may boil down to your word against the landlord's, so make sure you get photocopies of all the other shorthold agreements for your block, and send those copies to the court and the landlord before the hearing date, if they support you on this point.

 

 

 

The tenancy was ended by me serving notice as a perodic tennat. I achived this by leaving notice at the company B's registered address (which conviviality is Company A's address as well!). As the mail system wasn't working because of weather, me and a witness went and delivered it personally. This was done to end on the last day of "a rental period". The other side do not dispute any of this. The flat is still up for rent with no tenant.

 

 

You are lucky they both had the same address. Even so, your notice could have been invalid, as you addressed it to the new company, if you were not served with a formal, legal notice in writing of the change of landlord.

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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You are lucky they both had the same address. Even so, your notice could have been invalid, as you addressed it to the new company, if you were not served with a formal, legal notice in writing of the change of landlord.

 

As I was unsure, I thought I would cover all the bases and served notice to both companies in separate envelopes. I was never served with the notice, it only came to light when I used companies house/land registry.

 

Sigh if the mention of the prescribed information won't be sufficient in court (I used the wording in the sticky). I understand the reasoning of the decision (although it is an awful decision). I guess I could ask to amend the claim but then surely the landlord will be "tipped off" and serve it on me (late) anyway! Being small claims the Judge may be more inclined to let me amend the claim.

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I fear this far down the legal process there is little useful advice that can be offered other than the OP provides a reasoned, documented argument and lets the Court decide (named defendents not withstanding)

Did Co B purchase property from A before liquidators were appointed?

Did Co B purchase property with all responsibilities & debts pertaining?

 

Following Gladehurst I suggest 3x deposit punitive damages for OP is unlikely.

Council will likely pursue occupiers for C Tax, if empty LL. It would be for them to sue LL for re-imbursement depending on terms of AST.

Was AST signed by LL as an individual or as an officer of Co A?

Was Co A a Plc or a sole trader entity?

 

I hope OP uses grammar/spellcheck on any Court submissions before sending.

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Company A and B are both Ltd companies with the sole purpose on companies house of "letting own property".

Company A sold to Company B just before liquidation. The liquidators believe it was sold below market value (think 70% undervalue ) and are investigating this and looking at reversing the transaction through the high court. Company A owned several properties, all of which had mortgages except the flat block where I was living. All of the landlords other property still belongs to company A.

 

The contract was signed by the Letting agent, who produced a document showing he had full authority to sign on behalf of the landlord's company A.

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As I was unsure, I thought I would cover all the bases and served notice to both companies in separate envelopes. I was never served with the notice, it only came to light when I used companies house/land registry.

 

Sigh if the mention of the prescribed information won't be sufficient in court (I used the wording in the sticky). I understand the reasoning of the decision (although it is an awful decision). I guess I could ask to amend the claim but then surely the landlord will be "tipped off" and serve it on me (late) anyway! Being small claims the Judge may be more inclined to let me amend the claim.

 

 

I regret any shortcomings in the 'sticky' thread, but it was written before the very recent court decision in Potts was ever made, and your claim was issued before that decision, too; and I am not an administrator on this site, so I can't easily edit any closed thread.

 

Also, the 'sticky' only gives general guidance, as it points out: it is meant only to point you in the right general direction. It is not an authoritative statement of the law, and it is not a substitute for consulting a Solicitor, or a specialist housing advisor, or the CAB.

 

 

There is a time limit for providing the prescribed information, which you say the landlord has missed. So it might be too late now for the landlord to comply with the statutory requirement.

 

If you intend to apply to amend, do so TODAY. Don't wait until the hearing and take the judge by surprise, for that's usually a good way to lose the case.

 

Being unrepresented, the judge might give you more leeway, provided you don't provoke him by turning up for a 2 hour hearing and asking - in effect - for an adjournment to the next available date. They get very mad when 2 hours of court time is wasted: whereas if they know a week in advance that you are not able to proceed, they'll be able to shove in another case.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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  • 4 weeks later...

Outcome,

Judge changed at the *very* last second, Judge that had dealt with applications and Case management conference up until now was called away and a different District judge unfamiliar with the case heard it.

 

Claim was ultimately dismissed, and the now protected deposit paid to Company B, although several things have made me consider an appeal (realistic prospect comments would be appricated):

 

1)At a case management conference, all parties were clearly told by the Judge, when documents must be filed and served by (a Tuesday the day after a bank holiday). Forgetting that Monday was a bank holiday and missing the Saturday post office (and not wanting to chance non-special delivery), I hand delivered my documents (by posting them through the letterbox, took witness with me who came to court) on the Monday to both parties and filed them in court on the Tuesday (again by hand). I recived my documents special delivery on the Wednesday. Royal mail "track and trace", and the postmark show they were only posted on the Tuesday. Order very clearly states "In default the party may not rely on the documents". I bring the proof to court. The other side claim to have received my documents late. Claim to have "CCTV and a witness who saw me deliver the documents." Unable to produce this in court and judge "prefers" my witness and tells them to give it a rest. I claim the same argument with the envelope, a copy of the "track and trace" etc. Judge asks me what my prejudice was by having received them late. I said none, but I believe that the court order has been ignored by defendants again, which was the basis for striking out their counter-claim. Judge waves away my protests and I let it go.

 

2) Judge dealt with the issue of prescribed information. Says that the Section 213 (5), relates only to protection from a section 21 notice. I point out that this isn't the case. I continue to argue the point, and basically get told by the judge to drop it "As I am familiar with this section of the Housing Act 2004." other side admit that they haven't given me the prescribed information. Order also states "any party wishing to rely on case law must provide a full transcript of the case with the documents refrenced in paragraph... else they will not be entitled to rely on them." All they other side produce is a mention of the Tinesa and Honeysuckle cases, and say prima facia I am entitled to the return of my deposit only, as late protection is acceptable. No extracts from the case nothing. Again told irrelevant as I confess to being familiar with the cases and their implications.

 

3) Over the deposit itself, the other side as referenced above, started a counter-claim for rent arrears and damage. Counter-claim was originally struck out sumarrily because it is out of time and the defence is debarred. Separate application by Company B dealt with this, and dismissed it. Limited evidence, whoever was still included in the documents I received. Nothing about supposed rent arrears other than a passing mention in the witness statement. In court produces two (old) bounced cheques. At the time the cheques bounced had banking problems etc (not really relevant), rent arrears paid up later but I didn't have proof of this in court. Judge says he can adjourn so i can obtain proof. I decline and say I don't have proof as the counter-claim was struck out and the court said the issue wasn't being considered as the defence was debarred. He then said they could still use them as "set off" against what was owed. I argue the other side haven't even provided a schedule of arrears, when I am supposed to have run up these arrears, any payments made since, anything. He then tells me court take a dim view of countermanded cheques and that "I have got off lightly" and allow this "evidence". At this point I question to myself what the point of judges directions are if the other side can ignore them willy nilly.

 

Accepted the judgement, and didn't at the time seek leave to appeal.

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Regrettably, I think that you didn't understand enough of what occured at the hearing to be able to give us a coherent account of it. You are not able to coherently explain the Judge's reasons for taking each decision.

 

You chose to conduct your own case at the hearing. I don't think you understood that Barristers go through several years of professional training before being allowed to do that. You couldn't reasonably expect to understand, or cope with, the mirriad legal and procedural issues which a hearing can throw up.

 

A county court judge has wide discretionary powers, and can basically decide for himself what procedure to adopt.

 

Trawling through your notes, I detect that you made application under section 213(3) of the Housing Act 2004, after your tenancy had ended. The latest court decisions to which I refered in earlier posts make it clear that if you do that you will lose; and you did lose.

 

Therefore, it is not obvious what your grounds of appeal would be. The outcome appears to be in accordance with the law as it currently stands.

 

Bear in mind the strict time limits for starting any appeal. You will need to consult a Solicitor for advice as to whether you have any grounds for an appeal. The Solicitor will need to see all the paperwork relating to the case.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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