Taking a student to court.

[Dotty50]

Both student and guarantor work so may be worth doing even just for the satisfaction of getting them to realise they cannot just walk away!

 

It may also cause problems for the student if they want further accommodation later this year

 

Crikey I am thinking like a DCA!

[caro]

Oops, lol. I'll put it back to legal issues if you like. Can't think of anything else.

[caro]

Just spotted this and thought of your problem dotty. http://www.consumeractiongroup.co.uk/forum/announcement.php?f=163&a=213

Edited April 14, 2011 by caro
editing link

[Dotty50]

I can't get the link to work Caro

 

It says that I do not have permission to access the page

[caro]

I've changed the link. It's to an announcement about a TV company looking for people with problems with student accommodation.

[Dotty50]

Thanks Caro, yes I spotted it a couple of days ago and have sent an email to them which they have acknowledged and will contact again if they want to use it.

[caro]

Will be interesting to see if they take you up on it. I've never heard of a situation like yours and it would be good for people to be aware that this can happen, and more importantly what you can do about it.

[Dotty50]

I don't think any parent would sign a guarantee under a joint and several liability if they realised exactly what they are agreeing to.

 

The annual rent on this property is getting on for £30k, yes that's right!

 

Unfair contract? Possibly!

 

Good job only one student left..........................so far!

 

What's so frustrating is neither the student or their guarantor will acknowledge that they are liable and obviously expect us to pick up their debt.

[Dotty50]

I need to establish if we can issue a claim against the student and guarantor now for the whole of the sum that will be due at the end of the tenancy?

 

I am concerned that the student will have moved on by then and we will not have any idea of their address

 

Does anyone have any idea?

 

I will also get the thread title changed to avoid confusion

[cerberusalert]

Thread retitled.

[Dotty50]

Thread retitled.

 

 

Thank you!

[caro]

Check the terms of the tenancy to see what should have been paid when they left. By the time you send a letter before action and start a claim I suspect that the tenancy will be virtually finished anyway.

[Dotty50]

Hi Caro,

 

Calculating the shortfall is the easy bit because we are have already had to pay some of it and there is another four months of the tenancy to go.

 

I think I will prepare a letter before action and see if it gets a response, neither student or parent has responded to a previous email!

 

Have I seen some LBA template letters on here?

[caro]

We had them for bank claims but not so sure now and this isn't the same scenario..

 

Technically I think you should send them a preliminary letter telling them what you want to pay and give them 14 days to comply. Tell them if they don't you'll be considering court action. If that doesn't work send an LBA saying you're disappointed they haven't complied, and give them another 14 days and then you file a claim in court.

 

This means you've followed the CPR and given them 28 days before going to court which is reasonable. You could perhaps suggest that mif they can't pay they let you know so that you can come to a mutually acceptable arrangement.

 

If you want to draft something and post it up I'd be happy to take a look.

[Dotty50]

Thanks Caro,

 

I will have a go at drafting something this week

[raydetinu]

Blimey eds missed this one!

I doubt you could claim against the guarantors, for the reasons expressed earlier, especialy if challenged! or LL you for that matter ( defo challenge that )

I suggest that neither you or the LL want to got court, so why dont all of the remaing students/parents try to come to some arrangement with LL for missing rent.

reduced amount but guaranteed payment.

negotiation rather than litigation.

Just a thought!

[caro]

Blimey eds missed this one!

I doubt you could claim against the guarantors, for the reasons expressed earlier, especialy if challenged! or LL you for that matter ( defo challenge that )

I suggest that neither you or the LL want to got court, so why dont all of the remaing students/parents try to come to some arrangement with LL for missing rent.

reduced amount but guaranteed payment.

negotiation rather than litigation.

Just a thought!

 

The very reason for pre-action protocols to make sure no-one rushes to court as a first resort.

[Dotty50]

Blimey eds missed this one!

 

I doubt you could claim against the guarantors, for the reasons expressed earlier, especialy if challenged! or LL you for that matter ( defo challenge that )

Sorry, what do yo mean, challenge what?

 

 

I suggest that neither you or the LL want to got court, so why dont all of the remaing students/parents try to come to some arrangement with LL for missing rent.

reduced amount but guaranteed payment.

negotiation rather than litigation.

The landlord has already obtained a ccj against the guarantor and had no hesitation about taking the rest of us if WE did not pay the outstanding amount, which we have now paid

 

Just a thought!

 

Why do you think we couldn't claim from the guarantor?

[raydetinu]

Gurantor form notnormally valid unless witnessed and signed by parties as a Deed, possibly under seal. any agreement/contract must have value to both sides. A Guarantor has no benefiet in the arrangement therefore usual contract/ agreement not valid, so must be done as witnessed legal document as in a will. affidavit etc.

CCJ was only granted on Guarantor because it was not challenged in court.

 

Sorry if its too late, missed that you had paid already!

Just to check was any deposit paid by defaulting tennant that could have been used.

[Dotty50]

Don't apologise, I appreciate any help given thank you.

 

Actually that's a very good point about the guarantees, all the signatures were done by post so Mickey Mouse could have signed them! No witnesses or identification proven at the time either. I did think about challenging this but we as guarantors were concerned about getting a ccj.

 

I did question the fact that the landlord had accepted a guarantor who was obviously not capable of fulfilling their obligations, yet we had to pay for references before the tenancy was agreed, but the question was not answered! I am beginning to think that maybe we shouldn't have rolled over so easily, let the landlord issue a claim as threatened and put a counterclaim in?

 

There will still be further monies due by the time the tenancy ends so maybe I should try and get a free consultation with a solicitor to see if they think the paperwork would stand up in court?

 

No holding deposit was paid, which seemed like a good thing at the time but it could have been to our advantage if one had been .

[raydetinu]

You neednt of waited for it go to court to mention the suspected invalidity of the guarantor form, just a letter to the LL pointing this out may have done the trick and possibly stopped the action.

good luck anyway.

we all learn by experince and anything that avoids the use of solicitors or courts is always good, as there is less stress and maybe a few quid.

[Dotty50]

Nothing would stop this landlord we got a tough one!

 

It seems that the guarantor has applied for a set aside and a hearing is due to take place fairly soon but the landlord can't attend, does that mean it will be set aside without question?

 

The rent is no longer owed to the landlord which has been confirmed to the court.

 

I feel that in some ways we have been bullied into paying the rent with the threat of court action held over our heads!

 

I have emailed both student and guarantor but have had not had any response. Can I send a letter before action by email or should it be sent by post, recorded?

[raydetinu]

'I feel that in some ways we have been bullied into paying the rent with the threat of court action held over our heads!'

Unfortunately it worked!

 

LBA is always a good idea, as gives defendant opportunity to settle before going to court.

dont forgt tho that garuantor may challenge validity!

 

Regarding the other garuntors action, if LL cannot attend and informed the court, more likely another date may be set.

[Dotty50]

Thanks Ray,

 

The landlord is now pushing the students for the shortfall of the rent for May and wants them all to pay an equal split for this to the end of the tenancy, which means of course that he will have been paid in full and will have no recourse on the student that move out! I don't feel that we should pay anymore until we know the results of the set aside.

 

We (parents) will be over £3000 down and I want to issue a claim now whilst we now the errant students whereabouts, the claim being for the total amount owing under the terms of the contract.

 

I have not been well this week but plan to get the lba prepared asap and go from there

[Thegreenpimpernel]

My penny's worth....

 

With regards to the bailiff, it doesn't matter that you guys / your parents are jointly liable. If the CCJ is against the former tenants parents, then they are the only people who can be pursued with that warrant.

 

The LL will need an additional (successful) claim against the other liable parties (you and your flat-mates) to enforce against you.

 

The bailiff will of course tell you otherwise.

 

The bailiff has no business visiting an address where the debtor has known to have fled. Is his premature departure not the entire basis of the claim?