Son being sued by letting agent for rent arrears

[baconrasher]

Hi Caggers

 

My son has got himself into another mess....

 

He had a joint tenancy (AST 6 month contract). He was unemployed for a while, we gave him money for his rent which he decided not to use for that purpose. The net result was that he ended up at the end of the tenancy with about 4 months of rent arrears; his flatmate also did not pay for at least the final month.

 

The letting agent has now issued a court claim for the rent arrears and a load of other charges (and is of course withholding the deposit - which we paid).

 

Some problems I have spotted:

1. Can the letting agent sue for the rent arrears - surely only the landlord can do this?

2. No LBA was received prior to the papers from MCOL.

3. The figure in the claim has no breakdown, but appears to include the rent arrears from the joint tenant.

4. My son agreed a payment plan with the agent, and made the first payment on this plan. The claim form states that no plan was put into place (we have an email trail showing it did).

 

The claim was only received today, so we have a few days to respond.

 

Any advice on a suitable response (note my son owes some money - but not the total stated on the claim; he is in a position to pay off the arrears in installments).

 

Many thanks

 

Bacon

[honeybee13]

Hello there.

 

To help us start to advise you, please would you type up the Particulars of Claim [POCs] minus any personal details? Also, what is the date on the top of the form?

 

HB

[baconrasher]

Will do - I won't have the claim until tomorrow. All I have is my son reading it over the phone.

 

Thanks

 

Bacon

[mariner51]

All joint Ts are liable for full rent owing

Your son app agreed to a payment plan which he then defaulted on

AFAIK LA can now issue Court proceedings on behalf of their client

 

 

IMO your son is taking you for granted (deposit etc). Tell him to 'grow a pair' and honour his primary responsibilities.

[baconrasher]

All joint Ts are liable for full rent owing

Your son app agreed to a payment plan which he then defaulted on

AFAIK LA can now issue Court proceedings on behalf of their client

 

 

IMO your son is taking you for granted (deposit etc). Tell him to 'grow a pair' and honour his primary responsibilities.

 

My son has been taking me for granted for the past 24 years!

 

He has not defaulted on the payment plan.

 

Unless the law of agency does not apply to landlord & tenant, then an agent cannot sue on a debt owed to its principal (in its own name).

 

/b

[mariner51]

OK maybe my bad, but you did state son made one payment, without revealin the terms of the offer. A single missed/late payment can mean the full amount is due.

LA's can initiate claims on behalf of their clients, but only claimant or Solicitor can speak at Court.

I await the Particulars of Claim and details of the agreed repayment plan.

Otherwise stay stum until son receives Offciial Court papers.

[baconrasher]

Here are details of the claim:

 

The claimant is the letting agent.

 

The claim is:

 

"Outstanding rent totalling 5525.00 for an Assured Shorthold Tenancy Agreement at XXXXX. 10 x late payment charges totalling 350. The Tenant has acknowledged the debt and offered a payment plan that he has not followed up. He has made one payment of 200.00"

 

The claim is signed by the letting agent as claimant.

 

The claim is date 20 April.

 

The payment plan was for £200 pm with a lump sum payment of £2000 in the future. The repayment plan commenced on 28/3/15 with a £200 payment, a second payment will be made tomorrow.

[baconrasher]

Some further info....

 

An LBA was not received - the court claim came out of the blue, as my son assumed that, provided he kept up the payment plan, all would be well.

 

Please note. I do not condone my sons actions and I have stressed to him that he must pay the arrears. However, I do not think the letting agent comes out of this well.

 

Why did he wait for months before chasing for the rent arrears?

Why has he reneged on the payment plan?

 

It looks to me as if he is using the court claim as a debt collection mechanism - leaving aside the whys and wherefores, this is not what the courts are for.

 

bacon

[legalistic]

I doubt that the letting agent is entitled to sue. S/he cannot, for instance, bring possession proceedings (Chester Accommodation Agency Ltd v Ababrese 1997 Times, 28 July, CA).Statute law on housing normally always uses the word "landlord" and this has a specific meaning in a given statute.If a successful objection was made on this point the claim could simply be brought again, this time in the landlord's name.There might be something in the contract between the landlord and letting agent enabling the agent to initiate proceedings but such a clause could be void.

[baconrasher]

Any thoughts as to how to approach replying to the claim.

 

Simply deny any liability for the amount on the basis that the rental agreement is with the landlord and not the agent?

 

(Reading these forums it seems to be quite common that agents disclaim any liability on the basis that they are not the landlord, so this is simply using the same argument).

 

I have a sneaking suspicion that the agent may have been so incompetent that they did not notice the arrears, and have continued to pass on the rent to the landlord. In which case I doubt the landlord will sue! However, my objective is to get a proper repayment agreement in place and make sure my son sticks to it - and that means stopping this court action.

 

Bacon

[mariner51]

LBA prob not required as son should have been aware of consequence if payment plan was not followed (full amount becomes due).

The total amount claimed is £5875,though Judge may throw out the late payment charges.

Anyone can use the Court to claim for perceived monies owed. LA may be providing this service to LL under their Agreement with LL.

With a £5875 debt it is unusual that anyone would accept an initial payment of £200 and a final payment of £2K, seems back to front. Are you certain initial payment should not have been £2K? Certainly this would explain the present Court action.

A rent debt of £5525 at £200 pcm would take over 2yrs to pay off. IANAL

 

 

Please keep us informed of outcome.

[baconrasher]

IANAL either - but I am aware of CPR. Lack of an LBA means no opportunity to agree a settlement without recourse to court proceedings.

 

I agree with your analysis of the payment plan - it does seem a bit lopsided. However, my son gets lump sums of commission hence the £2k payment. If the opportunity arises to agree a 'proper' repayment plan then it is more likely to be based on the original rental (£425pm for my son's share).

 

You are correct - anyone can lodge a claim. However, if you are claiming for money due from a contract (letting agreement) then you have to be a party to the contract. If my son responds that there is no contract with the agent, and that the claim should be struck out, the only way this can continue is for the agent to show that he has some sort of agreement from the landlord that he can pursue legal claims on his behalf. I have never used a letting agent, so I don't know if this is likely - the landlord lives abroad so it is possible.

 

What I don't know is the right form of words to use when acknowledging service of the claim.

 

/b

[legalistic]

Baconrasher, CPR 19.3 says that all parties seeking a remedy need to be joined as claimants.What is this commission your son gets and who is it from.

[baconrasher]

I have read 19.3 - some of the claimed rent arrears are for the joint tenant. I was going to ask that he be joined as a defendant. However, I don't think that 19.3 covers a claimant who has no locus standi (ie a new claim is required; you can't just substitute the landlord for the agent).

 

He is a salesman - he gets a basic wage plus commission based earnings on top. He tends to get lumps of commission every 3 months or so.