Small claims court defendant is non-uk resident

[digbydisaster]

Hi all, I am looking for some advice please.

 

If a non-UK resident landlord is not willing to return tenants deposit

can the tenant use the small claims court to claim against them if they do not know the landlords address?

 

 

The AST shows the landlords address as the same address as the rental property

and this is not an address the landlord has lived at for 5 years.

Can court papers be served to that address even if it is very unlikely the landlord will see them?

 

I am confused about the rules for address for the defendant.

 

 

How does it work if the papers are served to an address at which the defendant no longer lives?

 

 

I have read that the papers automatically count as served a number of days after they are sent.

 

 

How does this work if the address is wrong or old?

 

I read that money claim online cannot be used for non UK addresses.

 

 

Can you use the "normal" small claims or other court for non-UK addresses even if the amount is under £1500?

 

Any help would be great. Thanks!

[aburobert]

If the landlords registered address is the same as the rental property then that is where the court papers are served.

 

It simply means you get judgement by default if he does not receive the papers. As he has property in the UK you can eventually go after that with a charging order. Someone must collect the rents etc. for him and they would have a contact address for the landlord so as to pass on any papers like these. If he has a UK bank account and you win go for a Garnishee order where the money will simply be taken out of that account.

 

First issue that Summons and see what happens (after sending a letter before action under a certificate of posting).

[unclebulgaria67]

Did you rent via a letting agent ? If so, have you contacted them about this non refunded deposit ? It might be an idea to contact any agent before you issue a court claim against the LL. if you failed to do so, this might be questionned in any set aside application by the LL. A Judge might say that the letting agent could have helped you resolve the debt, making the court claim unnecessary.

 

If you rented directly and they gave the rented address for communications to them, you are entitled to issue the court claim to that address, if they have UK assets.

[digbydisaster]

Thanks guys. I rented directly from the landlord who gets rent paid by direct debit / standing order. No one collects rent for them.

 

I read this:

 

"The claim form is even deemed to have been served if the claimant knows that the defendant has left that address – unless they know the defendant’s new address."

 

So I have the rented property address which like I say the Landlord has not lived at for years, but I also know their new address in South America, so what is the situation now?

 

Does it matter that they are not a UK resident? Can I still use money claim online and I read somewhere (moneyclaimsuk) I can't as they are out of jurisdiction?

Edited July 8, 2015 by digbydisaster

[digbydisaster]

Also found this:

 

DMBM665410 - Enforcement action: county court proceedings: preparation and service of the claim: claim forms returned undelivered

Individuals

If a claim that the court has served by post is returned undelivered, you will be sent form N216 (Notice of non-service).

 

Defendant moved address

New address outside the United Kingdom

 

If the defendant has moved abroad

 

write off the court fees

advise the court of the move out of jurisdiction and that no further action will be taken

transfer the debt to the appropriate office (see DMBM560020 and DMBM560030).

 

 

Does this mean that I will loose the court fees that I paid? And then can do nothing? or does this not apply to my situation?

[unclebulgaria67]

Think as you know their South American address, you are not able to issue the court claim to a UK address. But........

 

Did the LL provide their foreign address ? Would they be able to find out that you knew their foreign address ?

 

From what I have read, many creditors Solicitors seem to issue court claims using UK addresses, when they should have known the foreign address. If you have not been given the foreign address by the LL or someone acting for them, then I am not sure where you stand. You could perhaps issue the court claim to the address the LL officially gave you i.e the UK address.

 

You would have to think how likely you are to get the money, if you got a UK CCJ by default.

[unclebulgaria67]

Also found this:

 

DMBM665410 - Enforcement action: county court proceedings: preparation and service of the claim: claim forms returned undelivered

Individuals

If a claim that the court has served by post is returned undelivered, you will be sent form N216 (Notice of non-service).

 

Defendant moved address

New address outside the United Kingdom

 

If the defendant has moved abroad

 

write off the court fees

advise the court of the move out of jurisdiction and that no further action will be taken

transfer the debt to the appropriate office (see DMBM560020 and DMBM560030).

 

 

Does this mean that I will loose the court fees that I paid? And then can do nothing? or does this not apply to my situation?

 

Think that is correct, that if the court claim is sent back undelivered from the UK address, you would lose the court fee and you would not be able to continue.

 

I suppose that if you know for sure they are out of the country, you cannot really do much. What if a Judge asked you,if you knew the defendant lived abroad. You could not lie.

 

What I think i would do, is write out to the foreign address, asking for the rental deposit to be paid back to you. Advise them, that if you do not receive the money within say 2 months, that you will ask a UK court to apply a debt to the UK address that you rented, so you would be paid when it is sold. This is not exactly true, but they may just pay you the amount. It may be worth a try. If it fails, then you would have to forget about it.

[BazzaS]

Also found this:

 

DMBM665410 - Enforcement action: county court proceedings: preparation and service of the claim: claim forms returned undelivered

Individuals

If a claim that the court has served by post is returned undelivered, you will be sent form N216 (Notice of non-service).

 

Defendant moved address

New address outside the United Kingdom

 

If the defendant has moved abroad

 

write off the court fees

advise the court of the move out of jurisdiction and that no further action will be taken

transfer the debt to the appropriate office (see DMBM560020 and DMBM560030).

 

 

Does this mean that I will loose the court fees that I paid? And then can do nothing? or does this not apply to my situation?

 

I don't know if you can still proceed, but I would check what the courts say, rather than rely on the DMBM's.

 

DMBM's are part of HMRC's Debt Management and Banking Manual.

 

They show what HMRC would do.

While this is influenced by the courts rules and processes, (so sometimes what HMRC do would be what you HAVE to do), you can't necessarily assume that it is always the case that you MUST do what HMRC would do.

 

It would depend on if the courts would insist, or If HMRC have made their own choice.

[AndyOrch]

Thread moved to the appropriate forum.

 

Regards

 

Andy

[ericsbrother]

serve papers on the UK address and let LL know that you have done so by email or letter to Patagonia or wherever. Ultimately the UK assets can be used to pay the debts.

[digbydisaster]

Thanks guys. I am still confused about the serving papers. I know the LL address in South America, so therefore is it totally against the "rules" to serve papers to a UK address? Does anyone know where it officially says this? I know that Section 48 of the Landlord and Tenant Act 1987 states that "A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant". Does the fact that they are not in the country over rule this? Or does this still count?

 

 

Also is it correct that a non-UK resident cannot have a ccj made against them because they must have been given the opportunity to attend the County Court court to defend themself and living in South america is clearly a barrier this.

 

I keep reading so many things!

 

 

Thanks!

Edited July 13, 2015 by digbydisaster

[ericsbrother]

You have LL's UK address so you put that down on the form. Informing LL in SA is merely a nicety that you dont have to do but will make them sit up and take notice. IF there was no interest in any property in the UK then you send papers to SA and they getn ignored and there is nothing you can do about it but LL has a UK address so you use it. LL is answerable to the british legal system and also to the tax authorities.Enforcement is another matter but you cant put a house in the back of a transit overnight and do a runner so you are on solid ground

They ahve the opportunity to both request a paper hearing or to attend. If the judgement goes against you you will end up paying their air fare and other costs so they shouldnt be put off defending if they think they are right.

You seem determined to through obstacles in your own path, if you dont want to take this matter on then dont, just walk away and let them do it to the next person as well..

[caro]

Are you the landlord or the tenant?

[BazzaS]

thanks guys. I rented directly from the landlord who gets rent paid by direct debit / standing order. No one collects rent for them.

 

I read this:

 

"the claim form is even deemed to have been served if the claimant knows that the defendant has left that address – unless they know the defendant’s new address."

 

so i have the rented property address which like i say the landlord has not lived at for years, but i also know their new address in south america, so what is the situation now?

 

Does it matter that they are not a uk resident? Can i still use money claim online and i read somewhere (moneyclaimsuk) i can't as they are out of jurisdiction?

 

qft

[BazzaS]

Are you the landlord or the tenant?

 

Both, apparently.

 

See http://www.consumeractiongroup.co.uk/forum/showthread.php?449546-Setting-aside-or-stopping-ccj-before-court&p=4768058#post4768058

[digbydisaster]

Hi everyone, my landlord is telling me that I cant take him to court for the following reasons (sorry if I upset anyone on the other thread! no offence intended)

 

can anyone tell me if there is a way of "stopping" a ccj before it goes through?

 

I know that he is a non-UK resident and will be taking him to court using a UK address which he is no longer associated with and cannot access any court papers that are sent to this address and so cannot defend himself.

 

Can his UK property have a charging order placed on it or a order for sale?

 

Can he contact the court pre- default judgement to let them know he cannot access the papers?

 

Or will he have to wait till it has gone through and then apply for it to be set aside?

 

I know I will have to pay for this but can it be set aside without me coming back to the UK

as otherwise this will also be difficult and I don't have money to pay for a solicitor to deal with it for me.

 

I know I could just try the court and pay it and see, but I am sooo broke at the moment, just paying the court fee is a lot. I used the small claimsicon court a couple of years ago to sue a builder and it was a total waste of time and money so am really trying to work out my chances of success on small claims court action on a non uk resident but he does have a house here. What about bankruptcy? But I know this costs even more!

[ericsbrother]

If he owns the property then it is his UK address. Why do you keep saying he is a non UK resident just because he happens to be in south America? That does not change residency status, which is determined by HMRC taking into account various other things.

I have a relative who doesnt own any UK property, lives abroad and has done for 35 years but he uis still a UK resident as far as the law is concerned. It is a complicated issue butas your LL has a serviceable address he cannot claim that the papers were incorrectly served. It that was true no foreigner would ever pay council tax or utilities bills. Aas for costing money, ask the court for a form to claim remission of fees, you need quite a decent income to pay the full whack and if you earn less than about £16k you pay nothing or close to it.

[SabreSheep]

Your tenancy agreement should state where correspondence to the LL should be served at. If it is his UK address then that is where you serve it.

 

IF you lost and he attended, you would NOT BE LIABLE FOR HIS AIR FARE as this would be a small claims action.