Preparing a defence for a court claim for Renewal Commission

[AA123]

Hi,

 

I wonder if someone may be able to help please, this is my first post here, this post is a little long as I have tried to provide as much detail as possible.

 

I used to rent my property which I solely own out via ABC Ltd, I entered into this contract for what I thought was a one year lease May 11-May 12

 

Part way through the lease I realised it would be better if I leased the property privately, so I served the relevant section 21 notice on the tenant to expire at the end of the 1 year fixed term lease.

 

I advised ABC Ltd that following the end of the 1 year lease I would no longer be requiring their services, they confirmed this.

 

I then entered into a business Investment arrangement with my girlfriend who works self-employed that in short says she can do whatever she wants with my property to generate revenue, in return she would cover all costs associated with the property (regardless of if the property was vacant or not etc)

 

So if she chose she could be an agent if she so wished, the terms of the business arrangement are specific and were drafted by a legal firm to make sure they were sound. One of the terms of the Business investment is that the property owner will not receive any revenue for a period of 24 months during the initial period, however thereafter for the remaining period will receive increased revenue going forward. This allowed her to build up capital in the first 2 years of the deal and I don’t have to worry about the property at all as I have other things to look after for the next 2 years, a win win if you like.

 

Prior to the end of my initial tenants lease under the Business Investment she elected to enter into a rental agreement with my former tenant, on all the paperwork she is the landlord, receives rent in her business account, deposit is held and registered in her name etc etc.

 

3 months later I receive an email from ABC Ltd who advise they have used a detective agency and that the tenant they introduced to the property is still in there and so they want their pound of flesh, renewal commission 9% plus VAT. I decline, the case is referred to the TPO yet they don’t seem to give a hoot and side with the ABC Ltd.

 

Yesterday I received papers from the court as a defendant for the claim by ABC ltd for the lost renewal commission; however they have also listed my partner as a defendant also.

 

So we have completed the acknowledge slips to send back to buy some time, I then spent all of yesterday preparing statements for her and myself, these have not been sent back yet, then I stumbled on this site and thought maybe I couldget some advice/steer and answers to a few questions please.

 

1.Only I entered and signed the terms with ABC ltd to rent my property out initially as the property was mine, so why have they listed my girlfriend as a defendant, can I have her removed or does she have to complete a full defence. I have done a draft one for her which states she is not a signatory on any of the claimants paper work, terms and conditions, lease agreement with initial tenant for the first year, or on their named statements etc and stated that all of this information is further discussed in my Defence document. It seems cheeky that they have listed her as a defendant when she has never had any dealings with them.

 

2. My partner is just that, we are not married and separate legal entities.

 

3. in my draft defence document I refer to:

 

a) The terms signed with ABC Ltd have my signature on only, though in the names at the top for some reason at some point I have written her name too, don’t know why I ever did that, though she has signed nothing.

 

b) The deposit protection certificate arranged by ABC Ltd has my name only on it.

 

c) The lease agreement with ABC ltd only has my name on it

 

d) The terms signed with ABC Ltd in May 2011 are a version which are improved following the OFT Foxtons court thing.

 

e) I have written TBC - meaning "to be confirmed" and initialled alongside several sections to do with renewal commission as when I read them I was not happy with those terms, they state this doesn’t mean anything.

 

f) The statements from ABC Ltd paying rent to client: Me (only) and landlord listed as me (only)

 

g) Copies of communication stating no longer require services any longer etc all between me (only) and ABC Ltd.

 

Post the initial tenancy in the draft bundle I have also included:

 

h) A copy of the tenancy agreement between my girlfriend and the former tenant (she is landlord my name is not on any paperwork)

 

i)copy of deposit protection certificate in her and former tenants name

 

j)copy of the business Investment legally drafted by girlfriends solicitors which allows her to control my property

 

k) Copy of bank statements from girlfriends business account which shows monies paid from former tenant to her business account (not me).

 

I have then put some text in that states all the above clearly shows I was not the landlord or received any monies in the subsequent rental period (as per business investment I get nothing for first 24 months) so 9% of zero if it was deemed I was the landlord. Also ABC Ltd terms state they may charge renewal commission for up to 2 years following the initial lease.

 

I have also stated that I do not believe they may pursue my girlfriend for monies under an agreement I entered into with ABC Ltd, she is a third party and has no arrangement with ABC Lts and has never had any business with them.

 

I have drawn reference to the case of OFT V Foxtons which states that aparty may not purse a third part for renewal commission if the house is sold and that I believe this is similar, relying on a term to collect renewal commission from a third party.

 

I have also stated that ABC Ltd is registered as a member of The Property Ombudsman of which their code of practice for letting agents :TPOS website letting agents code of conduct (I can’t post link won’t allow me as a new user) the version dated Aug-11 states:

 

FairContracts

 

 

3iYour Terms of Business must be transparent in relation to client commitments.They must be written in plain and

 

intelligible language and comply with other requirements of the Unfair Terms in Consumer Contracts Regulations

 

1999.You should not use terms that may be deemed unfair, and consequently unenforceable, by virtue of the

 

aboveRegulations. Your Terms of Business must not contain terms which are inconsistent with the provisions of

 

this Code of Practice for Letting Agents.

 

3jYour Terms of Business must not include any terms requiring the client to paycommission where another agent or

 

any other third party renews the tenancy of a property which you were previouslyinstructed to let; or which requires

 

the client to pay commission in circumstances where the tenant agrees to purchasethe property.

 

Now as I'm sure you can imagine all of those ads up to a significant volume along with all the exhibits/appendices. Should my initial defence be this thorough or simply a skeleton argument and then submit a more detailed defence when asked to supply documents later?

 

I have also added at the end of my girlfriends’ statement/defence that all the above clearly demonstrates she should not be a party to the claim and thatI we feel she should be removed, can this happen?

 

The other thing is I obviously would prefer this was allocated to small claims to control costs, the value is for £X000, (much less than £10k) but it should only be £X000 minus £1000 as the former tenant ended up moving out early anyway so they would be due less commission if we were found to be liable. (I guess their detective was on holiday that week).

 

Also their calculation for interest is at a rate set out in some court scheme;wheras their terms talk about interest on overdue amounts would be at BOE baseplus 2%. So which interest calculation should they be using?

 

I'm sorry it is so detailed and long and so many questions, any help and/oradvice greatly appreciated.

 

Thanks in Advance.

 

ps Do you think the OFT would be interested in the case given their rulings on Foxtons, if so doesn anyone know who in the OFT dealt with this ?

 

edit: sorry some words joined up together making difficult to read (dont know why)

Edited May 21, 2013 by citizenB
formatting

[honeybee13]

Hello there.

 

Following your report of this thread, I'm moving it to the legal forum. There will be a short term redirect from this forum.

 

My best, HB

[steampowered]

What does the contract say? If your contract with the letting agency says they are entitled to commission for as long as the tenant stays in the property, then I struggle to see how you can defend this.

[AA123]

What does the contract say? If your contract with the letting agency says they are entitled to commission for as long as the tenant stays in the property, then I struggle to see how you can defend this.

 

Hi,

 

Thats why Im asking here Thanks for the reply.

 

I guess I would be hoping that the OFT foxtons ruling that such terms are unfair if a third party takes over the management of the property/or if it was sold and may not rely on them as per TPO code of conduct for agents section 3j (copy above).

 

That I contested the renewal commision at the initial time of entering the agreement and was not told that my modifications were not deemed acceptable.

 

I was not the landlord to the tenant after her initial year

I received no rental revenue form the property after first year (so 9% of zero is zero)

 

I had written to claimant advising no longer required their services after initial lease

 

They have provided no services and expecting payment for that, possible unfair terms ?

 

etc etc

Edited May 21, 2013 by AA123

[steampowered]

It sounds like the unfair terms point might have some mileage but I am sceptical about the other points. Before going into this further you haven't fully explained the basis for the estate agent's case. Can you give a fuller explanation of how they describe their claim or perhaps type out their Particulars of Claim?

[novice101]

This is the case where I am the named party above but have not signed anything.

[AA123]

steampowered,

 

Thanks for replying again, I am trying to attach scanned JPG of the particulars of claims but they are coming up very small, bare with me while I keep trying.

 

I must be doing something very stuipid !, I'm selecting files uploads and they are here, but when I click on them they are smaller than my bonus last year !

 

EDIT now attached below

Edited May 21, 2013 by AA123

[AA123]

Trying a different typoe of attachment... I think that worked.

 

[ATTACH=CONFIG]43989[/ATTACH]

 

[ATTACH=CONFIG]43990[/ATTACH]

 

 

[ATTACH=CONFIG]43991[/ATTACH]

Edited May 21, 2013 by citizenB

[citizenB]

AA, I agree, it is very frustrating when words join up

 

I have "unjoined" them for you in order to make reading easier.

 

I have also gone through your draft defence and removed, personal names that would identify either you or your partner.

 

I think this is where you copy and paste from another document. For some strange reason the forum doesn't like us doing this when using certain browsers !

 

You would have found it much easier to convert your documents (all of them) into pdf format and upload them using the instructions below

 

 

 

Dx100 – Instructions on uploading pdfs

 

scan the requiredletters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

 

 

[AA123]

None of these names are real. Reproduced as it was poor formating pasting from word.

Draft response replaced with PDF [ATTACH]43992[/ATTACH]

Edited May 21, 2013 by AA123
Becasue Im rubbish in formatting ! DOH

[citizenB]

One question I would have - are you linked financially in any way with your GF ?

[AA123]

Thanks for the reply Citizen B,

 

We are not married if that's what you mean, we are seperate tax entities also. We have a joint bank account for the payment of rent or bills in our home (not the property in question) but that's it. The same as perhaps 4 professionals sharing a house may have a bills account, we lice together and I understand ther eis no such thing as common law now.

[citizenB]

I have replaced all the names above with fake names BTW so no one can get in trouble etc

 

Ah right.. can you please let me know if posts # 11 and 13 contain exactly the same text or if this is a duplicate posting ?

 

Could I also please ask you to convert your word documents into pdf format and follow the instructions I have given you for uploading them to the forum.

 

Because of the CAG formatting, it is making them very difficult to read !!

[citizenB]

I have replaced all the names above with fake names BTW so no one can get in trouble etc

 

Thanks for the reply Citizen B,

 

We are not married if that's what you mean, we are seperate tax entities also. We have a joint bank account for the payment of rent or bills in our home (not the property in question) but that's it. The same as perhaps 4 professionals sharing a house may have a bills account, we lice together and I understand ther eis no such thing as common law now.

 

 

Righto, I was just thinking of reasons they might have joined your GF on this claim.

 

I think you might be rushing ahead.. can you please advise what is the date of issue on the claim form - top right hand corner of the claim form ?

 

You have 33 days from the date of issue in which to submit your defence and you should only respond to the actual claim.

 

Your timeline will be..

 

Date of issue + 5 days for service + 14 days to acknowledge + 14 days to submit defence (33 days).

[AA123]

Date is 08/'05/13, stamp says served 13th May we sent back acknowledgments last week day served date by recorded post, been tracked and received.

 

It just dawned on me one thing that isnt in my very cumbersome defence initially and it's the question you ask about why court papers in G/F name too. When I initially filled the terms in I thought we might rent in her name instead of mine, so i quickly filled the forms in in both our name, she didnt know at the time though, only I signed it though. WHen the estate agents sent draft court papers to me I emailed them and asked why are you putting her name on it, she isnt involved or a signatory of the modified terms, it fell on deaf ears.

 

I have attached the draft defence for her (1 page) here [ATTACH]43994[/ATTACH]

And My Defence (long) here [ATTACH]43995[/ATTACH]

 

I'm thinking I have overcomplicated it in my defence, but am not sure if I shoud disclose absoloutely everything in this defence document if my defence relies on it.

Edited May 21, 2013 by AA123

[citizenB]

Aha, that is better

 

I am just going offline for half an hour or so.. will come back and have a read of the claim and your defence in closer detail.

[AA123]

Thanks, feel free to delete posts 9,10,11 as I cant find the delete button, only the edit one

[citizenB]

Ok -

 

Issue date 8th May + 5 = 13th May + 14 to acknowledge = 27th May + 14 to submit defence = 10th June. So you have a little time in hand in order to get everything together.

[citizenB]

I must admit, from reading your response to their claim - I cannot see they actually have one ? Certainly not with your GF.

 

They have obviously attached paperwork which clearly shows that your GF is not party to the agreement, so why would they issue a claim to her as well.

 

 

In my comments earlier on, I advised that you should only answer the claim as it stands, which you have indeed done.

 

I think you GF needs to respond to the claim, but first, I wonder if it might be required for her to ask for information by way of the CPR rules in order to obtain reasons why she has been dragged into this.

 

I will alert others to have a look at our thread. However, I think I saw steampowered on your thread earlier and (s)he certainly has more knowledge of this area than I do.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?391928-Court-Papers-Received..but-I-dont-know-why-my-name-is-on-them

 

The link above is to your GF's thread. She has been advised to simply deny entering into a contract with the claimant.

[AA123]

Thank you very much for your time. What a wonderful site. O look forward to any more views and information that may come available. my last reply contains both my an my GF's draft defence. I look forward to the CPR guidance/comments you mentioned as I don't know anything about them.

[citizenB]

CPR 31.14 allows you to request copies of documents mentioned in the claim form. You will find an example in the first post of the thread linked below. The draft request is halfway down the first post

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage

 

CPR part 18 allows you to request information only. Once you have their responses you can then request confirmation by way of documentation in order to back up their statement of truth. I have attached an EXAMPLE of a CPR part 18 request. Feel free to use it but do make sure that you amend the draft/example questions to those that would most benefit your circumstances. If they have mentioned a document in their Particulars of claim which you do not have, then request it using CPR31.14.

 

 

 

Draft CPR 18 for forum.pdf

[AA123]

Thanks again CitizenB

 

In MY particulars of claim they have attached:

 

1. A copy of the invoice sent - addressed to me (BF) only for unpaid renewal commison.

2. A copy of the terms which I (BF) signed, they are completed with my TBC comments on them etc in the name of landlord section is says My name & GF's name, however only I have signed the modified terms.

 

In My GF's particulars of claim they have sent exactly the same as the above, but the invoice sent is still in my name, her name does not feature on any demand (or indeed ever again in any paperwork from the claimant) as it was all subsequently done in my (BF name).

 

So, I guess this is all that the 31.14 would reveal ? os is there any point in doing so ?

 

Is there a way my GF can do something to ask that the claim is dimissed or she is removed from it rather than having to do a full defence etc or simply she has to say so in the defence and hopefully when it is sent back a judge will decided she should be removed from the claim? For example she has never been sent a default notice or any demands for payment etc ?

 

Do letting agents have to make proper demands first etc like banks before issuing proceedings ?

[steampowered]

Hi,

 

It looks like you have done a great job with the draft Defences - well done.

 

The Foxton ruling is a bit more complicated than the OFT's extract suggests, as it was a holding that the specific clause in question breaches the Unfair Contract Terms Regulations not that all renewal commissions are unfair. Let me revisit the judgment and I will get back to you in a day or two on the Defence. You have a good amount of time before it needs to be finalised.

[AA123]

Hi SteamP,

 

Thanks for taking the time to read the documents and also for taking the time to read the foxtons ruling, I have read them historically and again more recently, there are so many of them, wading through mud !

Having thought about this over the past few days I have a few more questions and thoughts that you (or anyone else) may be able to assist with....

 

1. Is it correct that if I/we were to lose this case and pay the CCJ immediately (within 30 days) it wont appear on our credit files and/or affect our credit rating ? (is that automatic or do you have to do something to prevent this appearing in your credit file ?). Thinking future mortgage applications etc.

 

2. I attach a blank copy of the terms I signed and modified [ATTACH]44069[/ATTACH] as you may wonder which version I modified and signed.

 

3. Do you think I need to make more reference to unfair terms etc in my defense in a similar manner to how they are discussed in the Foxtons case.

 

4. Am I showing too much of my hand in advance by submitting the current draft defence and all exhibits, or does it make sense to do this ? When I spoke to moneyclaims they said they have seen it where the defendant makes a comprehensive defence and it's not unheard of for the case to be dropped.

 

5. I dont want it to come across as overly complex so the judge doesnt allocate to a track other thanthe small claims, to keep costs contained.

 

6. I would like to make sure this is heard in my local courts, I have enquired with the money claims service and they said I just fill someothing out on a form at a later date, rather than have to travel down to London. Is this correct ?

 

7. Do you thin it's possible the judge could/would drop the claim immediately agaisnt my GF on presentation of her defence, or does that generally not happen.

 

 

Thanks again for reading and any answers/advice going forward.