Taking Landlord to Small Claims - Counter claim received

[MissFM]

Re: Taking Landlord to Small Claims - Counter claim received

I don't know whether it's worth getting written testimony from my two friends who have witnessed the flat from when I moved in, and can state the carpet/walls were not new, etc. I don't know if there's any weight given to that...

I would do that in your shoes, JR.

Get them to do Statutory Declarations (sworn statements) if you have those in Scotland. The more evidence you have the stronger your case, even if it does seem like belt and braces. x

[jr9355]

Re: Taking Landlord to Small Claims - Counter claim received

The court case is tomorrow at 10am.

I've written up a chronological account of facts of what has happened, along with text message transcripts showing all the times I've tried to contact the landlord for repairs and for chasing the cheque.
I also have 3 pictures of stains on the carpet from when I moved in, proving it wasn't new.

Is there anything else I should be doing? I don't know if I'll sleep tonight!

[Crazy council]

Re: Taking Landlord to Small Claims - Counter claim received

I would also add that the landlord did not charge a deposit, but wishes to to claim against advance rent paid, For the LL to do this, terms need to be included in the tenancy agreement to allow this, these terms also have to include the tenants property to check and negotiate with the LL. Theere does not seem to be suitable terms in the contract to do this.

Also, that the term 15. The deposit protection scheem was set up to stop exactly this. I dont think an LL can declaire themselves the sole and only judge of this...

item 10 would also require your signiture at the time, and confirmation that you have at least seen the document.

[jr9355]

Re: Taking Landlord to Small Claims - Counter claim received

CrazyCouncil, your help has been a real lifeline. I can't thank you enough.

I will be sure to update you and let you know how I get on.

There is one other issue which I could use some advice. The landlord's agent (who I've always dealt with - it's her husband) has a court case listed where he did this exact same thing in sending a cheque then cancelling it before it could be cashed.

Would this be worth bringing to the Sheriff's attention? I'm worried it could be interpreted as a slur on his character rather than the intention of proving he has done this kind of thing before.

[stevemLS]

Re: Taking Landlord to Small Claims - Counter claim received

Would this be worth bringing to the Sheriff's attention? I'm worried it could be interpreted as a slur on his character rather than the intention of proving he has done this kind of thing before.

This could prove difficult. What is your evidence?

From what you say it is not a decided case, rather one that has been listed to be heard.

In which case, of course, he is "alleged" to have done the same thing and so there is no evidence that he actually has done so.

I was about to tell you what the civil evidence rules had to say about attempts to introduce "bad character" evidence, which is what you would be trying to do, but then remembered you are in Scotland so anything I had to say would be talking out of my behind!

I have used bad character evidence previously in a civil case against a woman who was trying to defraud my employer out of £20k. In that case I obtained memoranda of convictions for offences of dishonesty, including fraud, from 7 previous convicting courts. I jumped through all the hoops and, unsurprisingly, she didn't show up at the subsequent strike out hearing.

[jr9355]

Re: Taking Landlord to Small Claims - Counter claim received

Sorry, I should have clarified:

I found a court listing for the landlord back in 2010 regarding the installation of a new kitchen amounting to £10,000.
There were various problems alleged by the pursuer (my ex landlord) and in the final verdict of the court documentation, it was heard in court that my ex landlord had sent a cheque for payment of the new kitchen, then subsequently put a stop to it.

It's relevant, as it shows she had done this kind of thing before, but I was worried I might be seen as trying to make a character slur. I'm unsure as to the rules of using previous unrelated court action to highlight the character and previous incidence of a similar issue.

[MissFM]

Re: Taking Landlord to Small Claims - Counter claim received

Found this:

http://www.scotlawcom.gov.uk/files/5...532/rep229.pdf

sure is long!

And wishing you the very, very best tomorrow xx

[stevemLS]

Re: Taking Landlord to Small Claims - Counter claim received

Echo the best wishes.

[jr9355]

Re: Taking Landlord to Small Claims - Counter claim received

Well that was disappointing.

The Sheriff postponed for a full hearing on 16th October at 10am.
The landlord was represented by her husband, who said he wished to call the previous tenant, who is a teacher, to give evidence as to the condition of the property when she left.
When given my turn, I countered that the case relates primarily to the fact that a payment was taken without notification and the landlord admitted it was in error. Because of the counterclaim and the request for a witness - it was scheduled for full hearing.

The landlord's husband interrupted the Sheriff and was told off for it. He also kept referring to him as 'Your Honour' rather than 'My Lord'. He said he may not be able to get the witness on 16th October because she is a teacher and was told that it doesn't matter; if he can't get her then the case will continue without her - written statements count for nothing because a piece of paper can't be cross-examined!

I am absolutely certain that the previous tenant was a male, not a female as the landlord is now stating. I have a feeling that the woman who will be witness is the previous tenant's mother. She is also a long standing family friend of the landlord!

Is there any way to find out who the witness will be? To get their name?

Overall I have mixed feelings. I'm sad it can't be resolved today and has to drag on for another month, but heartened when I saw his only paperwork was an email sent to me with the list of expenses, and a brown envelope of photographs.

I informed the Sheriff that there was no inventory taken, but he had already made up his mind that it was going for full hearing...

EDIT: Am I able to claim for trains? It's now going to cost me £56 from train travel today and 16th October...

[stevemLS]

Re: Taking Landlord to Small Claims - Counter claim received

In England the witness would have to make a statement first which would need to be served on you - there would be no way you could be "ambushed" by a surprise witness, you would know who they are and, in the main, what they were going to say.

[Crazy council]

Re: Taking Landlord to Small Claims - Counter claim received

Hi @jt9355

let us know what happens will you, cheers CC

[jr9355]

Re: Taking Landlord to Small Claims - Counter claim received

Absolutely. I'll keep the thread updated

I'm hoping that, if successful, I'll get my train journeys paid by the other party?

[jr9355]

Re: Taking Landlord to Small Claims - Counter claim received

As promised: The update!

I attended court on Friday 16th October at 10am and had my wad of information prepared, along with a copy of everything for the judge.

Our case was called in public court (which I thought was odd, given I thought small claims were held in private) and no one came to represent the defenders this time around.

I was asked if I would like a 'default decree' to which I accepted.
Expenses were not allowed for travel. I was told I was the pursuer and the expectation was to come to court for hearings, therefore they weren't reimbursed.

The decree was granted and is being posted for the with-held payment of £450, plus the court filing costs of £73 and 8% interest (about £10..)

In short, WE WON

[Kati]

Re: Taking Landlord to Small Claims - Counter claim received

Well done xx

[Crazy council]

Re: Taking Landlord to Small Claims - Counter claim received

nice one [MENTION=69239]jr9355[/MENTION] :juge:

I hope that LL learns there lesson,