Set aside app / Landlord/Tenant claim

[StaceyA]

Re: Set aside app / Landlord/Tenant claim

Also, what happens if the judge does see it as a deposit? Would i have to fill in a pay for a claims form beforehand to sue her for not using the scheme? OR does the judge decide if a penalty should be given even if i dont state that im claiming for it or fill in the claims form?

[Crazy council]

Re: Set aside app / Landlord/Tenant claim

I've been over to landlordZONE and the months rent in advance came up. After speaking how it was handled and doing some research theres a chance the judge may see it as a depostit

doubt it, a months rent in advance is just that. its accounted for through your ll or agents client rent account ( client account ). What a judge can do, is award the landlord any balance of rent if they are making a claim against the tenant for damages that are not covered by the deposit.

You do realise that the is the potential that this could get worse for you.

My advice. try negoteate with teh LL prior the application to set asside, see if you can do that befoe proceeding.

Question.

What would be fair result for both you and your LL

.

[stevemLS]

Re: Set aside app / Landlord/Tenant claim

Again, I am afraid I think the deposit issue is irrelevant to what you are now claiming - as I understand what you are saying she has refunded the amount already.

Had she not returned the money then, of course, it would have formed a counterclaim.

Had you decided it was in fact a deposit and you were still in the tenancy then the court COULD have awarded you up to 3 times the amount of the deposit and ordered her to put it in a protection scheme, but that question seems to me to be academic now and courts will not generally resolve academic issues.

[StaceyA]

Re: Set aside app / Landlord/Tenant claim

All rent was paid throughout the tenancy, nothing was missed. Advanced rent was paid which we received back. There was no extra costs, no deposit paid, just a month rent in advance as she calls it.

To be honest there was potential for negotiation but she ignored my letters asking for breakdown of costs, receipts etc, plus inventory. We could of striked up a compromise by reduction of costs taking into account how old the carpets were etc etc but i didn't hear anything....she just went straight to the courts.

The deposit/advanced rent situation i will raise it as such "3: The Claimant requested a months additional rent in advance. Upon moving in £900 in total was paid on 1st December 2010. £450 was for the first months rent. On the 1st January 2011 another £450 was paid for rent, and so forth until the end of the tenancy. Whereabouts of where the months rent in advance was kept are unknown, I was not informed of any bank account it was kept in or if it was put in a deposit scheme. "

I'm not pushing it onto the judge im just putting enough information in to show that even i'm confused at to what it is!

A fair result - A fair result isnt what it is now, ll claiming FULL costs of NEW carpet etc.....A fair result would be working out how old the carpets we're, roughly how much was paid and roughly how much life they would of had.....I have already added to my defence that i'm willing to work out costs as such and come to an agreement but do not think it is right i pay the whole bill. Youve got to understand, there were 4 people (2 kids) in that house for 4 years, nothing was redecorated in that time (minus myself repainting the kitchen) and no carpets were replaced. Plus the carpets were not torn in any way

[StaceyA]

Re: Court office didn't send appropriate forms and I missed my deadline!!!! HELP

Theres more pictures to that aswell showing that the carpets arent as bad as they looked on claimants pictures.

[Crazy council]

Re: Set aside app / Landlord/Tenant claim

A fair result - A fair result isnt what it is now, ll claiming FULL costs of NEW carpet etc.....A fair result would be working out how old the carpets we're, roughly how much was paid and roughly how much life they would of had.....I have already added to my defence that i'm willing to work out costs as such and come to an agreement but do not think it is right i pay the whole bill. Youve got to understand, there were 4 people (2 kids) in that house for 4 years, nothing was redecorated in that time (minus myself repainting the kitchen) and no carpets were replaced. Plus the carpets were not torn in any way

Thats usefull info, the carpets were there for 4 years, she has very little claim on damage on them. the rest, without going into to much detail, she would struggle with anyhow, do to the fact she accepted the keys back on the property, and paid you back the advance.

The reason i asked you the question early ( CCJ or debt ), was about how you may approach dealing with it direct with the LL

I would contact teh LL, inform them that you intend to set asside the judgement ( and maybe imply a claim for costs in the new claim ), becuase you consider they have over claimed, tried to confuse the situation by not supplying all the photos as part of the claim, and provided photos of a rooms underlay, not carpet. ( ETC ETC ).

State, in the same letter, that you would have sorted this out prior any action if they would have answered any of your communications.

Then, decide whats best for you in relation to the offer you make the the LL

1. You make and pay set asside app with agreement of LL, you agree to pay LL a token amount towards any claims of ( Maybe £ 200 ), if the LL agrees to the set asside
or
mmm dont know, suppose its about how much of a fight you want, or do you just want to try to get rid of the CCJ

[StaceyA]

Re: Set aside app / Landlord/Tenant claim

Yeah its all very confusing lol..
Thing is though i don't particularly want to go out of my way and claim any money from her (I just want this over with as quick as possible so I can stop stressing out over it all) but at the same time im thinking well if the judge sees i should be owed money then WOULD i have to do a claim form or would it be rewarded regardless?!

So i think all i can do really is write a letter to the landlady stating that i intend to set judgement aside explaining my reasons, tell her what you said above about overcharging etc and reasons for that. But i don't want to add anything such as "if this goes to court and the judge sees it as a deposit you could still face paying 3x £450 as a penalty" i dont want to threaten her with things like that lol.

But i will send that to her, add a copy to my defence to say look i have contacted her and have informed her we could of come to an agreement etc etc but still send my court forms tomorrow.

I very highly doubt it will get sorted between us, if anything she will ignore the letter and any requests to lower the money....that would then delay my court papers and put me in an even worse position

[stevemLS]

Re: Set aside app / Landlord/Tenant claim

Apart from implying a claim for costs as Crazycouncil suggested, I agree with that advice.

A judge will be ill impressed by her failure to respond to your two letters suggesting negotiation prior to her issuing her claim. What exactly did the letter accompanying the return of the advance rental say? You have got copies of everything haven't you?

Make sure all future communication is written, not phone calls or texts, email is fine.

I still think the advance rental matter is a non-issue for the present purpose.

[StaceyA]

Re: Set aside app / Landlord/Tenant claim

Yes i have copies of everything her letter accompanying the cheque was

"Further to your letter, i note your point of theyre being no mention of a deposit or bond on the tenancy agreement and that the advance rent of 450.00 was an advance rent.
The decision of no bond at the time when you commenced renting was made like this as you had no way of raising a bond so an alternative action was put into place to assist you.
Legally you are correct and i have no alternative but to refund you the rent of 450.00 with the cheque enclosed.
Obviously there has been considerable damage and neglect at the property of *** which you obviously didnt remain true to the tenancy agreement you signed with me as a result i will not have to readdress through the courts monies for repair and refurbishment through the small claims court."

The decision of bond thing is rubbish, she only asked for 900 and there was no reason why she couldn't use 450 as deposit and not rent.

[stevemLS]

Re: Set aside app / Landlord/Tenant claim

OK, well it is kind of a rudimentary Letter Before Action.

It wouldn't satisfy the Practice Direction on Pre-Action Conduct as it doesn't crystalise the issue between you not least in monetary terms.

A judge will only make awards on what has been pleaded. They won't search out other potential heads of loss and make awards on that basis.

Once again, I think any further discussion of bonds/advance rents just clouds the issue. The issue is, at this stage, you are making application to set aside the default judgement primarily on the basis of mistakes made by the court administrative staff. The rest is showing that you have a "real prospect of successfully defending the claim" which is what the Civil Procedure Rules requires as a basis on which the court MAY set aside the judgment.

In any letter to l/l you need to say that you are going to "apply to have the judgement set aside" not that you are going to have it set aside.

The only reason to advise her in advance of the application is to see whether she will agree, if she does, it can be done by consent, without a hearing and with the lower fee.

Give her 7 days to respond.

[StaceyA]

Re: Set aside app / Landlord/Tenant claim

Yes thats true. Yeah i would have written it like that just quickly typing it up on here without checking for errors

The only thing i'm worried about here is delaying my letter to the judge....i guess if i include the letter to l/l then he will see that the delay is because i tried to come to an agreement with her before. But what happens if she ignores my letter?

I'm so sorry for all the questions by the way i'm just trying to get a better idea of what may happen never been through this before - only family courts -

[dan_1207]

Re: Set aside app / Landlord/Tenant claim

Yes thats true. Yeah i would have written it like that just quickly typing it up on here without checking for errors

The only thing i'm worried about here is delaying my letter to the judge....i guess if i include the letter to l/l then he will see that the delay is because i tried to come to an agreement with her before. But what happens if she ignores my letter?

I'm so sorry for all the questions by the way i'm just trying to get a better idea of what may happen never been through this before - only family courts -

Applications to have judgments set aside are, by their nature, done on a "without notice" basis. Showing that you're acting quickly to have the application submitted will work in your favor far more than sending a letter to the claimant asking for something which will doubtless be ignored or met with a negative reply.

File your application today.

[stevemLS]

Re: Set aside app / Landlord/Tenant claim

Dan makes a good point although I am not as certain as he that a prompt application would carry "far more" weight.

As I said in previous post, the only thing we are trying to achieve is a reduced fee for you.

On balance, I think I agree with Dan though.

You need to fill in a formal application, form N244, rather than simply writing a letter to the judge.

[StaceyA]

Re: Set aside app / Landlord/Tenant claim

Yep ive got the N244 ready to get printed, ill be filling that in along with a witness statement explaining why it was not handed in on time, why i feel the judge should set it aside etc then attaching my response so thats all gone through ready and may help set the case aside if he can see i have a good case

[dan_1207]

Re: Set aside app / Landlord/Tenant claim

CPR 13.3(2) - In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly. Wasting time with other parties in litigation will not do anything for OP's case. Complying with the CPRs will.

This will trigger the matter to transfer to your local county court (the closest one to where you live) and you will be given a date and time where you must attend (typically, you'll be given about 30 minutes, dependent on the judge and his/her timetable for the day.)

The other side may make submissions (a written reply to your application) and each party may make oral submissions on the day.