Suing the Council for wrongful prosecution.

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Crazy (and everyone) thank you for your input. The purpose is to get me out so that so that the LL can knock through from HIS/THEIR flat to my dressing room...and to rip the kitchen out and install a spiral staircase up to their OTHER superflat above me.
Applying great financial pressure (presently trying to put the rent up again) when I endured the vulnerability of the Council case has e

Ms Andrist, can we please rule out a cancelled forfeiture, so we can move on? 1) did the landlord have a forfeiture clause in convent (ie termination of tenancy for not paying rent)? 2) Did the landlord continue to accept, demand, or imply you should still be paying your rent, at the time the landlord either knew he would try to end the Assured Tenancy or take action to bring about a possession order?

[Kati]

Re: Suing the Council for wrongful prosecution.

I am totally confused with Open Law's comments...I am just an ignorant layperson....but I do not PAY a mortgage...I rent. sorry OL, I know you are trying to help, but I cannot see how this relevant to my case?

Openlaw there is no debt to pay. The arrears have been paid.

From what the OP has said the Order for Possession is suspended. How can she appeal a Suspended Order in the High Court ?

Di

@Openlaw15 what on earth are you on about, ( don't answer because am not interested in responding on this matter )

hi @Ms Andrist

I had a few colleagues look at this over the past 2 days to ask there opinion on a matter, mostly, in relation to the best way to protect yourself from a LL thats seems determined to end your tenancy, I will write it up when we finnish chatting later this evening.

Both said the wording on the suspended possession seems odd and to make sure its not a possession order ( you did that, confirming it in a letter from the court ). One of them explained it in a way were it seems the judge has acted properly and correctly over the costs

With section 8 notices, you need to be in at least 8 weeks arrears at both the service of the notice, and the court date, ( you was at the service, but had paid by the court date ). That would have costs the LL up to that stage, even if he withdrew, so the judge may have just been assuring that the LL was not out of pocket. The suspended possession terms, seem to basically just say, that if the next payment of rent is on time, and there not arrears, the orders over. ( there possibly the easyest terms for a TT we have seen ), and is the fastest way for the judge to satisfy both TT and LL appropriately,

If the above is correct, and its sorted now ( apart from your costs ), perhaps its time to be a bit more proactive to deal with the LL. Your length of tenancy and amount of rent, suggest that you may have paid a significant portion of the property value over the time, most judges will account for that. One of the questions in all our minds is what would be your LLs intent, ie

Just to increase the rent to up there %
To increase the rent to get you out for another puropose

If its option 2, and that other purpose is redevelopment or sale.... there maybe some things for you to consider, but were not quite sure how it would relate to your specific tenancy at the mo, but we all think it does.

Also, did you pay a deposit, interst may be due on that at the end of the tenacy.

Ms Andrist, can we please rule out a cancelled forfeiture, so we can move on? 1) did the landlord have a forfeiture clause in convent (ie termination of tenancy for not paying rent)? 2) Did the landlord continue to accept, demand, or imply you should still be paying your rent, at the time the landlord either knew he would try to end the Assured Tenancy or take action to bring about a possession order?

discussion and posts nothing to do with [MENTION=87701]Ms Andrist[/MENTION]'s issue have been moved to a new thread (http://legalbeagles.info/forums/show...ured-Tenancies) please try to keep threads on topic if at all possible ... it gets confusing otherwise

:focus:

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

discussion and posts nothing to do with @Ms Andrist's issue have been moved to a new thread (http://legalbeagles.info/forums/show...ured-Tenancies) please try to keep threads on topic if at all possible ... it gets confusing otherwise

:focus:

@Ms Andrist you say the following at post # 27:

"OL,...... I do not understand the concept of 'forfeiture' and Di has stated that it does not apply to me?
On point no 2) I received a letter dated AFTER the Section 8 had been served (which I mentioned earlier in the thread) which states:
'Any further payments following issue of proceedings are accepted only of payment of monies for use and occupation of premises and NOT by way of rent'

http://www.legalbeagles.info/forums/...294#post669294

Rent is defined as "a tenant's regular payment to a landlord for the use of property or land."

I say this at post #28 of the same thread:

"Ms Andrist,

In short - forfeit means end, so end the tenancy. Waiver the right to forfeit means 'continued lease/ Assured Tenancy.'

"This to me looks like an attempt to avoid a forfeiture issue. This is saying, the landlord is giving their self the right to claim money for the interest in the property but saying this is not rent. Hmm. I don't think this clause is legal as the court and the landlord knows fully well that this is rent in effect as it's not 'gratis' (ie free). "....Payment of monies for use and occupation of premises" = by definition rent/ charges for use of property."

@Kati, please let me post this as it's important. This is legal matter, ie a point of law not a discussion/ debate on forfeiture.

[charitynjw]

Re: Suing the Council for wrongful prosecution.

@Ms Andrist you say the following at post # 27:

"OL,...... I do not understand the concept of 'forfeiture' and Di has stated that it does not apply to me?
On point no 2) I received a letter dated AFTER the Section 8 had been served (which I mentioned earlier in the thread) which states:
'Any further payments following issue of proceedings are accepted only of payment of monies for use and occupation of premises and NOT by way of rent'

http://www.legalbeagles.info/forums/...294#post669294

Rent is defined as "a tenant's regular payment to a landlord for the use of property or land."

I say this at post #28 of the same thread:

"Ms Andrist,

In short - forfeit means end, so end the tenancy. Waiver the right to forfeit means 'continued lease/ Assured Tenancy.'

"This to me looks like an attempt to avoid a forfeiture issue. This is saying, the landlord is giving their self the right to claim money for the interest in the property but saying this is not rent. Hmm. I don't think this clause is legal as the court and the landlord knows fully well that this is rent in effect as it's not 'gratis' (ie free). "....Payment of monies for use and occupation of premises" = by definition rent/ charges for use of property."

@Kati, please let me post this as it's important. This is legal matter, ie a point of law not a discussion/ debate on forfeiture.

I believe the LL is claiming that monies accepted after the issue of proceedings are to be regarded as mesne profits

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

I believe the LL is claiming that monies accepted after the issue of proceedings are to be regarded as mesne profits

I think the lawyer has advised the LL rather well to avoid forfeiture defences by the Op. I also think you could be right too as this LL is so unreasonable nothing would be so surprising.

[charitynjw]

Re: Suing the Council for wrongful prosecution.

I believe the LL is claiming that monies accepted after the issue of proceedings are to be regarded as mesne profits

I think the lawyer has advised the LL rather well to avoid forfeiture defences by the Op. I also think you could be right too as this LL is so unreasonable nothing would be so surprising.

LL's Solicitor has come back with : 'acknowledge receipt of very late rental payment'.......and are still pressing ahead with the hearing on Monday (as I suggested they would)!!

Post #53 ^^^

Hopefully this acknowledgement receipt will blow the 'mense profits' nonsense out of the water, as the solicitor clearly regarded the payment as rent!

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Ah!..that's very clever and well spotted Charity....so they are (on paper) contradicting their assertions.
The 'very late' payment I made was for month/s outside the time when the Section 8 was served (May 27th) and I went on to make a payment for the July rental also (which to date I do not think they have acknowledged) ...and have gone on to make a payment for August (also unacknowledged).
The LL ventured to suggest that for his solicitor to confirm my payment of rent....I had to PAY for the acknowledgement letter!!

[charitynjw]

Re: Suing the Council for wrongful prosecution.

Ah!..that's very clever and well spotted Charity....so they are (on paper) contradicting their assertions.
The 'very late' payment I made was for month/s outside the time when the Section 8 was served (May 27th) and I went on to make a payment for the July rental also (which to date I do not think they have acknowledged) ...and have gone on to make a payment for August (also unacknowledged).
The LL ventured to suggest that for his solicitor to confirm my payment of rent....I had to PAY for the acknowledgement letter!!

That could be money well spent!
Just think of LL's face when he realises he has shot himself in the foot!

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Post #53 ^^^

Hopefully this acknowledgement receipt will blow the 'mense profits' nonsense out of the water, as the solicitor clearly regarded the payment as rent!

Charity it was an interesting argument, ie the mesne but the more I think about it's too sophisticated, too elaborate and is more likely to relate to a trespasser being tolerated than an actual LL remedy. Forfeiture is an actual LL remedy. The issue of acknowledgement of rent however seemingly suggests the tenancy could not be terminated (forfeiture), because the LL was still accepting the rent. In this eventuality, the LL is said to have continued the Assured Tenancy by acceptance of the rent, as the LL knows that Ms Andrist is in breach of her covenant (to pay rent), so continuing to accept rent, more demanding than accepting actually, the LL based on law has continued the lease/ Assured Tenancy without knowing.

[charitynjw]

Re: Suing the Council for wrongful prosecution.

Charity it was an interesting argument, ie the mesne but the more I think about it's too sophisticated, too elaborate and is more likely to relate to a trespasser being tolerated than an actual LL remedy. Forfeiture is an actual LL remedy. The issue of acknowledgement of rent however seemingly suggests the tenancy could not be terminated (forfeiture), because the LL was still accepting the rent. In this eventuality, the LL is said to have continued the Assured Tenancy by acceptance of the rent, as the LL knows that Ms Andrist is in breach of her covenant (to pay rent), so continuing to accept rent, more demanding than accepting actually, the LL based on law has continued the lease/ Assured Tenancy without knowing.

As the thinker of the thought (mesne), I'm gutted.......you omitted to add rich & goodlooking! :taunt:

Actually, I was reminded of this by something which occurred years ago.
My better half was helping a friend who was being threatened with eviction.
The LL (LA) really wanted the property, & had a barrister in court who was trying to argue mesne.
My OH winkled out from an LA witness that money had been accepted as rent.
End of argument......friend kept the tenancy.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Really interesting,...will see what the next missive from the solicitor states.
Meanwhile, am now battling the Section 13 (again) for rental increase.....(referred to the Property Tribunal (again)

[Crazy council]

Re: Suing the Council for wrongful prosecution.

hi [MENTION=87701]Ms Andrist[/MENTION]

I have discussed your current plight ( just general, no details ) with a few of my colleagues that still work in the industry, We all think its it will be ongoing until one side gives in, The LL through costs/annoyances or you through hassle. There are a few things were still checking between us in relation to your tenancy and the processes at the time you signed that and i will mention them if there's any validity to them.

All of us agreed that, probably, negotiating with the LL for a mutually agreeable future is the way forward on this.

Musings ( our thoughts after wine the other night )

If the LL wants you out to redevelop, ask him,you will if you can cover your costs and disturbances

X amount rent free ( Year ) and you agree to move at a set date
X amount up front and you will leave on ------ Date

These two options give you the chance to save up a fair whack to make moving easier, it also head of any further action from the LLif they see fit

Just being formal with the LL

Sometime, it just needs spelling out clearly and politely to the LL, about your position, especially because its not your original LL ( he purchased it with you as tenat , but be very careful how this is worded, )

" Dear LL .... we have paid rent over 20 years, this was our home for XX year before you purchased it with us in...... we do not wish to argue but we have to stand out ground...... and were wandering if we can agree some basic terms so were not fighting each other......."

A letter along the lines of that, give them 14 days to digest it,,

I would not normaly ever advise a tenat to do as above, but, when me and my buddies were chatting about the ins and outs of this, one mentioned a point that stuck

"put a value or loss to arguing with a LL when they live next to you "

[gwenlillian]

Re: Suing the Council for wrongful prosecution.

Gosh - been reading this thread and reminds me of so many mortgage lenders behaviours regarding payments and failure to acknowledge so they can rush you into court. Must be so stressful, I hope the situation is moving forward for you. One thing I thought about, but I have no legal training here, is what about the party that caused the financial losses/debt? could they be joined in any action to be accountable - maybe they have a vicarious liability?

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

The end of the road I fear. LL has gone ballistic over the fact that I was suddenly able to pay my arrears and rent to date (plus costs of the court hearing)...and is insinuating/inferring that the money may have come from elsewhere (though it it came from the recovered proceeds from the council). In short the LL is harassing me (again) to make me leave.......

[gwenlillian]

Re: Suing the Council for wrongful prosecution.

hi - sorry to hear that, as to where you got the money is none of their business is it, or at all relevant, unless they are trying to imply you are not entitled to assistance as you have a secret "huge income". That last bit relates to my own problems actually re local authoritites and tax - grrrr. Anyways, apart from the LL and his 'associate', there is the Solicitors Regulatory Body, some of their info makes good reading, and I feel that the recovered proceeds do not take account of your wasted costs. I think there is a special thing about costs but not sure of the detail and maybe wont apply to the party concerned. The Financial Ombudsman have a section on Compensation for trouble and upset.