Landlord is named wrongly on Court Claim Papers

[Herilsamika]

Thank you both Raydetinu and The Carpet Cleaners - you have been very helpful! I'll search for info on the Section 8 and ways to defend this particular type of notice.

[Lea_HTH]

Your thread is confusing - in the first post you state you are on a periodic tenancy, then in yesterday's post you state you signed a new tenancy agreement in December 2013, yet the first post was made on 28th February this year, so which is it? Is there a tenancy agreement that starts in December 2013, or are you on a periodic tenancy?

 

If periodic since 2006, there is sufficient room for a legal argument not to protect the deposit - but if there is a new tenancy in Dec 2013, then the deposit should have been protected before 30 days was up and the PI provided too. That said, I've yet to see a s21 struck out on the basis of a lack of PI if the deposit was in fact protected.

 

The most important issue is this, if you had been in arrears for your tenancy prior to the new tenancy agreement in 2013, whilst the LL can chase you for the arrears, he cannot claim possession of the property for those arrears as they arose under a different agreement to the one you hold now. If, however, the arrears have arisen since 2013 and the new agreement, then the LL has no obligation to take any alleged overpayment of rent to reduce new arrears, though he has an obligation to return any overpaid rent to you (and you can sue for its return). Logic would say if there was an overpayment, that the LL would simply reduce current arrears with it - but he is not obliged to.

 

s8 notices can be served for a variety of reasons, half of which are mandatory - which means there is no defence to them and the court has no discretion but to award possession. The rest are discretionary, which means it's up to the judge.

 

As with most cases, you are better off negotiating with the LL. If you've been there with no problems since 2006, you must be a reasonably good tenant, and any logical LL will consider that.

[raydetinu]

Yep agree, don't get confrontational with the LL if you want to stay, and discuss exactly what he wants and then how to get over any problems.

Keep it amicable if you can, does not sound as though you are far apart and can be sorted to every bodies satisfaction in the end.

[Herilsamika]

If periodic since 2006, there is sufficient room for a legal argument not to protect the deposit - .................

 

 

 

I'm confused by this statement, as I have been made to understand that as of April 2012, the legal loophole was closed and all deposits should have been protected, whether they were taken pre- April 2007 or not? The link below (if I understand it coreectly on page 4) makes this clear that deposit protection is/was a must??

 

http://www.mydeposits.co.uk/sites/default/files/Guidance%20on%20the%20Court%20of%20Appeal%20judgement%20%28Superstrike%29_0.pdf

[Herilsamika]

Your thread is confusing - in the first post you state you are on a periodic tenancy, then in yesterday's post you state you signed a new tenancy agreement in December 2013, yet the first post was made on 28th February this year, so which is it? Is there a tenancy agreement that starts in December 2013, or are you on a periodic tenancy?

........................................

.......................................As with most cases, you are better off negotiating with the LL. If you've been there with no problems since 2006, you must be a reasonably good tenant, and any logical LL will consider that.

 

Sorry Lea_HTH - I'll try to summarise to clear up as best as I can - I've actually been digging out paperwork since 2am this morning to prepare for small claims.

 

I signed an AST in 2006 for a period of 12 months.

This lapsed into a SPT during 2007, after the April 2007 deposit rule.

The LL sent a new AST to be signed with a new rent amount in December 2013 - £1200pcm.

This was signed and the new rent paid, therefore I am actually in a newly created AST for 12 months.

There are no arrears for the new AST.

 

The overpayment issue is summarised below (as best as I can):

From 2007 to 2013, the LL received monies from me that were different from

the rent due amount - rent due was £1000pcm.

Some months the LL received more rent £1300pcm,

some months, £970pcm (general examples given).

No DD or SO set up on either side due to the nature of my job - LL was happy to give

his bank details over for deposits - I have all my receipts to show payments made.

 

No dispute with LL on how much money LL received.

Dispute arises because LL states that all overpayments are being kept because LL changed

the rent due amount to sync with the extra payments made by me.

No written agreements exists to change rent from £1000pcm to £1300pcm, then back to £970pcm

so not sure how LL can legally argue this point!

LL never increased rent on old tenancy, only the new AST signed in December 2013.

 

There are no arrears on either rental agreement - previous agreemnt an overpayment exists

and the current statement, the account is up to date.

All negotiations have failed, that's why I asked about S21 and S8.

[Lea_HTH]

Your tenancy started in 2006...and ended 2007 - but you do not specify actual dates. Did it go periodical before or after 6th April 2007? That is what is relevant.

 

I see you ignored the question regarding the differences in your posts and when/if a new tenancy agreement was started - you've posted whilst I was typing this, so will respond to that.

 

If there are no arrears on the new AST, LL has no grounds to claim possession under a s21 until the tenancy period is over, or any appropriate break clause is activated. If the property was formerly the LL's own home, then a s8 notice can be served under g1 (mandatory).

 

LL can't change the rent amount under the agreement - he's mistaken there. What he can't do is keep any overpayment, but that overpayment has nothing to do with your current tenancy agreement, so any extra payments you made under previous agreements are disputes related to those agreements and not this one.

 

I suspect, if the deposit was merely paid into his bank account, and there is no specific record of a 'deposit', that the LL will state no deposit is held. Does your new tenancy agreement specify that he holds a deposit for you?

[Herilsamika]

Yep agree, don't get confrontational with the LL if you want to stay, and discuss exactly what he wants and then how to get over any problems.

Keep it amicable if you can, does not sound as though you are far apart and can be sorted to every bodies satisfaction in the end.

 

Thanks raydetinu, but it is now past that point! The LL refuses to negotiate, won't return money or give me credit for it and is actually trying to extort more money from me, as LL claims I'm in arrears!

[Herilsamika]

Your tenancy started in 2006...and ended 2007 - but you do not specify actual dates.

Signed tenancy in August 2006, so went SPT in August 2007 - after April 2007.

 

Did it go periodical before or after 6th April 2007? That is what is relevant.Already answered above - it went to an SPT after April 2007 - August 2007 to be exact.

 

I see you ignored the question regarding the differences in your posts and when/if a new tenancy agreement was started.

Didn't ignore it - I wasn't sure if I was in a new tenancy!!! I had to check paperwork to be sure - I received the AST in September 2013 while out of the country, the new AST was to take effect from December 2013. I signed it in front of a friend while out of the country and posted it back to the LL from abroad.

In my earlier post, I was operating under the assumption that I was still in a SPT, as I didn't remember if I had received acknowledgment from the LL (I checked and no paperwork from LL to acknowledge receipt of new AST) However, the CAB says that doesn't matter if I have an acknowledgement or not from the LL that they received the new AST as I paid the new rent amount in December 2013, so an AST was created regardless of non-acknowledgement from the LL.

 

Sorry Lea_HTH - see above - I've answered your question - the tenancy went SPT after April 2007. The schemes advise that the deposit held from 2006 should have been protected in 2012.

[Lea_HTH]

I suggest you type up a table of payments made against payments due and then issue a money claim against the LL for the return of your overpaid rent from previous tenancy agreements.

 

I am afraid I would not advise trying to claim for non-deposit protection as it is just so expensive to get a claim started - but if you have a spare £1k go for it. If you have proof of paying the deposit, you will win and have your deposit returned to you - and at least one times that amount as a penalty is likely to be awarded against the LL (up to the judge if he wants to award more).

[Herilsamika]

I suggest you type up a table of payments made against payments due and then issue a money claim against the LL for the return of your overpaid rent from previous tenancy agreements.

 

I am afraid I would not advise trying to claim for non-deposit protection as it is just so expensive to get a claim started - but if you have a spare £1k go for it. If you have proof of paying the deposit, you will win and have your deposit returned to you - and at least one times that amount as a penalty is likely to be awarded against the LL (up to the judge if he wants to award more).

 

Thanks Lea_HTH - I've done the table already and had this sent off to LL as part of the LBA. I'm just giving them 14 days as per legal advice to respond.

 

With regard to claiming for deposit non-protection, the good news is that I don't have to outlay any money - I've already been advised that I can raise the non-protection as a counterclaim when the LL serves the S21 or S8. I have legal advice that I would be in a strong positon to claim for a full penalty(x3), as the LL failed to protect the deposit in 2012 and has since failed to protect the deposit for the new AST created in December.

[Herilsamika]

I suspect, if the deposit was merely paid into his bank account, and there is no specific record of a 'deposit', that the LL will state no deposit is held. Does your new tenancy agreement specify that he holds a deposit for you?

 

Hi Lea_HTH - there is no dispute with LL over the deposit paid - both tenancy agreements state the deposit amount and the deposit was paid with a bank cheque for the exact amount stated. LL issued a receipt as well for the deposit in 2006. With the new 12 month AST in 2013, LL specifically makes mention of the deposit amount, stating that the amount previously held would continue to be held as a deposit on the new AST. However, what LL has failed to do to date, is give me any details of where deposit is and send me the PI! I have checked the websites of the schemes and all comeback with "no deposit held" - I've also written to all schemes just to confirm that they don't have my deposit.

[Lea_HTH]

Thanks Lea_HTH - I've done the table already and had this sent off to LL as part of the LBA. I'm just giving them 14 days as per legal advice to respond.

 

With regard to claiming for deposit non-protection, the good news is that I don't have to outlay any money - I've already been advised that I can raise the non-protection as a counterclaim when the LL serves the S21 or S8. I have legal advice that I would be in a strong positon to claim for a full penalty(x3), as the LL failed to protect the deposit in 2012 and has since failed to protect the deposit for the new AST created in December.

 

Good news re the deposit proof you have.

 

But...I am surprised if you have received legal advice about counterclaiming, that you have not also been told that whilst you can do that, the case will be allocated to the multi or fast tracks and with that come the additional fees aforementioned.

[Herilsamika]

Good news re the deposit proof you have.

 

But...I am surprised if you have received legal advice about counterclaiming, that you have not also been told that whilst you can do that, the case will be allocated to the multi or fast tracks and with that come the additional fees aforementioned.

 

 

Hi Lea_HTH,

 

I did some quick googling and came up with this recent thread about suing for deposits - a poster insists that you can use MCOL.

 

http://www.landlordzone.co.uk/forums/showthread.php?61095-Superstrike-deposit-protection-rules-clarity

[Herilsamika]

 

As with most cases, you are better off negotiating with the LL. If you've been there with no problems since 2006, you must be a reasonably good tenant, and any logical LL will consider that.

 

The only problem is that my LL is not logical. I have sent my corrected rental statements repeatedly showing a credit balance, yet the LL insists that any overpayments are regarded as an increase in rent!! The LL seemed clueless when I insisted on my PI and instead just repeatedly insisted that as I was paying more money in rent, I owe the rest of my allowances!! I'd like to just get my S8 or S21, countercliam for my non-protection of the deposits (each failure to protect), sue him for the overpayment and then leave this crazy house! Plenty of houses out there to rent, despite what the newspapers keep telling people - I've seen three houses this weekend all in the same rental price range and with gardens to boot!

[Lea_HTH]

Yes, posters often 'insist', even when it's patently obvious they don't really have a clue.

 

What you choose to do is up to you.

[mariner51]

AIUI the Localism Act 2012 amended the deposit protection rules that had existed since Apr 2007, when deposit protection became mandatory & tidy some of the loopholes created by legal precedence in the interim. It changed the mandatory protection window from 14 to 30 days, clarified when this period started (on receipt) and allowed the presiding Judge to determine the level of T compensation to 1-3x deposit, rather than fixed 3x (allegedly on Judiciary advice) to prevent Ts benefitting from minor LL breaches when no real financial risk occurred.

The Localism Act was not applied retrospctiveyl but gave all LLs with a pre-existing TA with an unprotected deposit 3o days to comply ie 5 May 2012

The fixed term vs SPT new TA was only confirmed in the Superstrike v Rodrigues in 2013

I fail to see how later precedents can overul

[Herilsamika]

Yes, posters often 'insist', even when it's patently obvious they don't really have a clue.

 

What you choose to do is up to you.

 

 

Mariner is right! I've been waiting to see what happens to a mate of mine that is suing for her deposit back. Her claim has NOT been allocated to the multi or fast track! Perhaps it may depend on the deposit amount, as her amount of deposit is £250.

 

I personally know four different people, other than my mate, who are in the process of filing against landlords who have not protected deposits. I have checked with all of them today and we have all received the same advice that any LL who had a deposit in their possession during May 2012 should have protected it in 2012 (Localism Act). Thereafter, each new signed AST must be fully protected. If the deposit was already protected before signing, the LL must provide the PI to be legally safe!

[Herilsamika]

The most important issue is this, if you had been in arrears for your tenancy prior to the new tenancy agreement in 2013, whilst the LL can chase you for the arrears, he cannot claim possession of the property for those arrears as they arose under a different agreement to the one you hold now. If, however, the arrears have arisen since 2013 and the new agreement, then the LL has no obligation to take any alleged overpayment of rent to reduce new arrears, though he has an obligation to return any overpaid rent to you (and you can sue for its return). Logic would say if there was an overpayment, that the LL would simply reduce current arrears with it - but he is not obliged to.

 

This is the exact opposite of the legal advice that a solicitor has given me today.

 

The solicitor explicitly said that if there is an overpayment of rent for one address, it does not matter if it arose under a previous or new rental agreement. If the tenant and the landlord remain the same parties, and the address remains the same, then the the two agreements can be merged into one if there is money issue.

 

Therefore, any money paid to the landlord from now on must be deducted from any future money owing for rent! The solicitor has advised me to force the landlord to pursue me if they think that money is owed!

 

In the meantime, I can indeed withold rent in the future, as all I would be doing is increasing the landlord's account and I would then have to chase and sue the landlord for my overpayments.

[raydetinu]

What I suggest is you prepare a statement of the account to include all your payments on one side and rent due on the other, for the whole time you have been living there.

Then send that to the LL for his information and agreement and if you have overpaid in total you can to some agreement on how to proceed.

This will also be useful if do get to court as it will be evidence and it will be up to him to come with some form of evidence to counter it.

If you back the statement up with bank statements or pay in slips all the better.

[Herilsamika]

What I suggest is you prepare a statement of the account to include all your payments on one side and rent due on the other, for the whole time you have been living there.

Then send that to the LL for his information and agreement and if you have overpaid in total you can to some agreement on how to proceed.

This will also be useful if do get to court as it will be evidence and it will be up to him to come with some form of evidence to counter it.

If you back the statement up with bank statements or pay in slips all the better.

 

Well, I've sent off the statement of account as you suggested and LL has not replied to that at all - no acknowledgement I've also formally asked for proof of deposit protection in the cover letter with the rental statements. I now have letters from all four deposit protection schemes to let me know that my deposit has never been with them, nor is it with them now! The LL has not responded to my request for deposit info or acknowledged the statement. The LL does not know that I have the written confirmation from the schemes. Instead, LL has sent another SMS message to say that they will approach my employers for the alleged rental arrears! They do not respond to legal letters either, as I've instructed a solicitor to write to them about my overpayments. Three times I've wrote to them and solicitor has written once. Is this now a case of just let them write to employers and present that to the court as evidence of harassment?

[Herilsamika]

So, I've been away for the Easter Hols, from Monday of last week to just now returning to the flat.

 

First thing first, I open up the door and there is an envelope on the kitchen table from the landlord, dated 16 April.

 

The note states that an inspection would be made on Sunday 20 April. Who does an inspection on Easter Sunday?

 

The only obvious signs that someone has been in the flat is that the fact that the note is on the kitchen counter and the lights inside have been left on!

 

Correct me if I am wrong, but does a landlord have the right to enter a flat without consent?

 

I've read loads on the internet but there is no general agreement on this matter.

 

Should the landlord not have waited until they received my permission?

 

Thoughts please, especially from you legal minds out there! Thanks in advance.

[rebel11]

Hi Herilsamika

 

The landlord should ask your permission and give at least 24 hours notice for entry. The letter should of been slipped under the door.

 

It's all about respect. If you entered his house without his permission I think he would be very unhappy indeed.

 

http://www.adviceguide.org.uk/wales/housing_w/housing_renting_a_home_e/common_problems_with_renting.htm#h_the_landlords_rights_of_entry

[45002]

Well simple answer is... Yes

Reason being is they own the property.

 

 

Well simple answer is... NO

 

Every tenant has a right to Privacy.

 

Change the locks and make sure you don't cause any damage when doing so.

 

Restore LL locks when you leave

[Conniff]

No they cannot just enter. It matters not if they own the property. Entering without giving advance warning or requesting can be classed as harassment and is a reportable offence.

 

 

Misinformation post removed

[rebel11]

Better still get him/her to change the locks.

 

Well simple answer is... NO

 

Every tenant has a right to Privacy.

 

Change the locks and make sure you don't cause any damage when doing so.

 

Restore LL locks when you leave