Commercial Property Distress Baliff

[SHarker]

Hi guys, need some help and maybe a recommendation for a good lawyer. I own a fish shop that I lease from yow Ching Wong. I pay rent to a mrs k l Wong on the 28th of each month in advance. Today I was visited by a bailiff with a statement of arrears provided by yow Ching wongs manageing agents stating I owed 2800. The warrant was issued under mrs k l Wong even though I don't have a lease with her. She's his wife, and I believe it's a tax dodge thing. However all would be good but I pay the rent via standing order, and my statements from the bank clearly prove that I am making the rent payments. The baliff wasn't interested, just wanted money. As you can imagine this is very stressfull, I had to close the shop, I've lost trade, and my wife is hysterical. My reputation has been damaged

There is previous, he lost his rent review case against me, also he is trying to get me to refit out his property under a dilapidation case. There is 14 months left on the lease.

I want to sue for damages. Can I also sue his managing agents and maybe the bailiff too?

Any advice appreciated?

Stu

[teaboy2]

Re: Commercial Property Distress Baliff

If their wrongful actions caused you loss of trade and damage to reputation, then yes you are entitled to sue for damages and possibly fraud too. The bailiff had no right to continue to demand money when you clearly showed him proof you had been making payments.

Reference rent review, had he been trying to increase the rent, as it sounds to me that they may have been and they have decided to increase it anyway, hence why despite you paying rent each month you are now in arrears, this is fraud and also puts them in breach of their lease agreement with you.

As for upgrading equipment under dilapidation, what does you lease agreement say? As usually the landlord is responsible for replacement of equipment if they came with the property. Infact if you can i can send you my email address by PM so you can email me a copy of your lease over.

Now as for the bailiff, which bailiff company were they from, or am i right in assuming they were from the court? If they are from the court then simple hand them copies of your bank statements (Black out your account details with marker pen) and tell them to return to the court with them as they are prove that you are not behind on rent as its paid by standing order, also give them copies of documentation proving the landlord had lost their rent review and therefore are not legally entitled to more than what you have been paying.

Did you ever receive any particulars of claim forms from the court, regarding this debt, if not contact the court where the warrant was issued and tell them you would like to apply for a set aside as you never received any particulars of claim. They will tell you what you need to do, if they don't then come back and let us know and we will tell you what to do.

[pepsie]

Re: Commercial Property Distress Baliff

Before a warrant of execution can be obtained there has to have been a ccj issued by the County Court...if you have no knowledge of any such action having been taken, then Mrs Ping Pong would have received Judgment by default and you can apply to have that Judgment set aside.

Set aside requires form N244 which you can download from HMCT website, if it is shown the claim was made vexatiously (no truth to it and made out of spite) then you can indeed sue them for the losses you have sustained and the stress you have been placed under. You do not need a solicitor to actions for set aside but, you would be wise to seek one if you later go for damages.

Pepsie

[SHarker]

Re: Commercial Property Distress Baliff

He lost the rent review, and cost where high, he lost £1600 on a Tribunal Surveyor, plus what ever his own surveyor charged him, but this has created a negative relationship. i have paid the Rent via standing order each month, I didnt withhold any payment.

Under the lease, it clearly states that I am under no obligation to improve the building beyond what it was when i took the lease on....they are trying to get me to put a new bathroom suite in, as his surveyor states its redundant!!!!!

Ive got all the details of the bailiffs at the shop, it was done under distress, from a court certificated bailiff. Landlords don't need a court order, In effect, this right to distrain for rent permits a landlord to recover rent arrears, without initiating court proceedings. When I told them it was wrong, he said that it was up to me to take it to court, as the law had been broken. At the end of the ordeal, the bailiff shook my hand and said that what goes around, comes around.

The bailiff handed me a solicitor letter dated 24 August 2012, stating my defaults. It states sent recorded delivery. I have genuinely not seen this.

I have my bank statements proving payment, to me this is Fraud, harrasment etc.

Stu

[ploddertom]

Re: Commercial Property Distress Baliff

Please note that for rent arrears cases no Court Order is needed.

[bluebottle]

Re: Commercial Property Distress Baliff

Hi Sharker,

I am a retired policeman. You are correct in your assumption in that your commercial landlord is committing Fraud. In order to prove harassment against him, you would have to be able to show he had done so on at least two occasions. As long as you can do that, you can legally restrain your commercial landlord. If you are trading as a sole trader (no pun intended), then you can use the provisions of Section 3, Protection from Harassment Act 1997 to obtain a without notice injunction from your local county court. If he then breached the injunction, he would risk being fined, sent to prison or both. I am attaching some documents to this post. One is the Protection from Harassment Act 1997. The other is Court Form PF39CH, which is the form used to apply for an injunction. However, I would strongly advise you to seek the assistance of a legal professional in obtaining an injunction. If it becomes necessary to seek an injunction and are granted same, on the same day or on the next working day, you will need to submit a claim for damages. This will be heard at a later date by a Circuit Judge who will assess damages and make the injunction permanent.

[bluebottle]

Re: Commercial Property Distress Baliff

If their wrongful actions caused you loss of trade and damage to reputation, then yes you are entitled to sue for damages and possibly fraud too. The bailiff had no right to continue to demand money when you clearly showed him proof you had been making payments.

Reference rent review, had he been trying to increase the rent, as it sounds to me that they may have been and they have decided to increase it anyway, hence why despite you paying rent each month you are now in arrears, this is fraud and also puts them in breach of their lease agreement with you.

As for upgrading equipment under dilapidation, what does you lease agreement say? As usually the landlord is responsible for replacement of equipment if they came with the property. Infact if you can i can send you my email address by PM so you can email me a copy of your lease over.

Now as for the bailiff, which bailiff company were they from, or am i right in assuming they were from the court? If they are from the court then simple hand them copies of your bank statements (Black out your account details with marker pen) and tell them to return to the court with them as they are prove that you are not behind on rent as its paid by standing order, also give them copies of documentation proving the landlord had lost their rent review and therefore are not legally entitled to more than what you have been paying.

Did you ever receive any particulars of claim forms from the court, regarding this debt, if not contact the court where the warrant was issued and tell them you would like to apply for a set aside as you never received any particulars of claim. They will tell you what you need to do, if they don't then come back and let us know and we will tell you what to do.

Totally agree with you on the breach of tenancy by the landlord, TB. This landlord, methinks, is barking up the Wong tree.

[teaboy2]

Re: Commercial Property Distress Baliff

Agreed Bluebottle. Though as no rent is due then the warrant would not be valid. I personnally would send the landlord a letter before action, pointing out to him that if they do not revoke the warrant (as all rent has been paid in full on time) and honor the lease agreement to replace equipment deemed in need of replacement (qouting that section of the agrrement to him), then not only would they be sued for breach of lease agreement, but also for commencing unlawful and vexatious legal procedings amounting to fraud under the fraud act 2006, and possibly contempt of court as a result of their vexatious and unlawful demand for rent that is not and was never due, and that is on top of damages claimed for loss of earnings and damage to reputation. Also point out that no arrears are due as they know dam well that they lost the rent review so were not entitled to claim any additional rent under the lease agreement.

See how the landlord likes that.

[bluebottle]

Re: Commercial Property Distress Baliff

In addition to Teaboy's advice, I would warn your commercial landlord that his unlawful actions also amount to a course of conduct amounting to harassment within the meaning of the Protection from Harassment 1997 and that if he continues to engage in such conduct, an injunction to restrain him will be sought without further notice. I would strongly advise you to print off Sections 1, 2, 3 and 7 of the Protection from Harassment Act 1997, highlight them, and send them with your letter to your commercial landlord. Not only is the prospect of a fine, imprisonment or both going to change the colour of his underwear, it should dissuade him from instructing certificated bailiffs, as Section 7 of the Act makes it an offence/tort to "procure others to engage in harassment".

[pepsie]

Re: Commercial Property Distress Baliff

Long read but worthwhile in view of the conclusion as it allows you to make comparisons with your own situation http://www.ucc.ie/law/restitution/ar...ses/fuller.htm
Conclusion
27. I therefore decide that in the taking of the accounts to ascertain what (if any) rent was due from Mr Fuller at the date of the levying of distress the sums claimed in damages from N&P are to be ignored: but any overpayments of rent can and must be taken into account, for they were immediately repayable and were the subject of a right of equitable set off against the arrears of rent. This means that a landlord is bound to take the greatest care before levying distress that there are no claims on the part of the tenant which may be available by way of equitable set off to be offset against and satisfy the rent outstanding. In any ordinary case he would be well advised to give notice of his intention and invite the tenant to agree what is owing and to inform him whether there are any cross-claims and (if so) to identify them. The ancient (and perhaps an anachronistic) self help remedy of distress involves a serious interference with the right of the tenant under Article 8 of the European Convention on Human Rights to respect for his privacy and home and under Article 1 of the First Protocol to the peaceful enjoyment of his possessions. The human rights implications of levying distress must be in the forefront of the mind of the landlord before he takes this step and he must fully satisfy himself that taking this action is in accordance with the law.

[SHarker]

Re: Commercial Property Distress Baliff

You know what, you guys are the real heroes of Britain....thanks for all your help so far.....Im up for a fight...there is fire in my belly...I will keep you updated all the way.....my wife is devastated, she no longer wants this lively hood....my life as is has been changed forever, because of the actions of a landlord, his surveyor and Bailiff....am I going to lie down and except it? what do you think??? your all Just Brilliant!

Can I post all the info on here?

[bluebottle]

Re: Commercial Property Distress Baliff

You know what, you guys are the real heroes of Britain....thanks for all your help so far.....Im up for a fight...there is fire in my belly...I will keep you updated all the way.....my wife is devastated, she no longer wants this lively hood....my life as is has been changed forever, because of the actions of a landlord, his surveyor and Bailiff....am I going to lie down and except it? what do you think??? your all Just Brilliant!

Can I post all the info on here?

Remember, if you have to go for an injunction, make sure you have a number of copies stamped by the issuing court. One can then be served on any scumbag bailiff who is daft enough to enter your fish shop. A bailiff who claims it didn't apply to him/her would be very foolish, as they would fall under the meaning of "agents" and/or "third party". They could be legitimately ordered from the shop or forcibly removed. Speak to a legal professional to see if the court can be persuaded to attach a power of arrest to the injunction on the grounds that your landlord is unlikely to comply, given his past conduct. If granted, make sure the police are provided with a copy.

[SHarker]

Re: Commercial Property Distress Baliff

Ok, what I'm going to do first, is write to the bailiff and fax him a letter enclosing a copy of my bank statements proving the rent has been paid. I will point out the law which he has broken himself. He after all enforced the order even after we had told him that it was wrong. I'm going to ask for the 1400 I paid him to be returned to me by Tuesday evening 5pm. I'm also going to ask for 5000 damages to be paid within 7 days for the distress he has caused to myself wife and staff. As for the distress he caused to my customers, I want a full page apology printed in our two local papers on wednesday 26th Sep.

Obviously if he doesn't comply, I will be forced to complain also to the court who issued the bailiff with the certificate to carry out warrants without the need for a court order. I can see a genuine need for a service like these bailiffs provide, but if the system is abused for whatever reason, then this is an abuse of our laws, and also our liberty.

At present, as you can imagine, myself and my wife feel very violated, and we feel that it maybe impossible to carry on our livelyhood. Our business generates us 4000k per week, and is worth 140k on the open market. If further distress is going to be caused, then I will have to close the shop, and seek damage claims and loss of earnings against the landlord and his agents. As you can imagine these claims would be significant.

My wife is in such a state, she is going to th doctors for help.

Do bailiffs by law need there own public liability insurance? I know his managing agents will, and as for the landlord, well his assets will be enough to settle my claim, he owns 14 other shops.

Its a heads up on where I'm at today.

The harassment advice was very helpfull as I hadn't considered it from that angle.

Case law is very important, but I suspect it will be very rare, I can't see too many people with the balls to go to court. I however do have a pair, and there is nothing Wong with that.

I know it's Sunday and family time, but if you have any thoughts, let me know

The best regards my legal beagle friends.

Stu

[bluebottle]

Re: Commercial Property Distress Baliff

I don't know if a court would be prepared to do this, but I am wondering if the prospect of your commercial landlord forfeiting his freehold interest of the shop to you if an injunction has to be obtained and he breaches the injunction would make him toe the line, legally. The fact you have a ruling in your favour from a Rent Tribunal carries some weight. As to who you claim against, the managing agents and bailiffs are acting as agents for the Wongs, but are equally liable for their actions. If you go for an injunction, I would be inclined to name the following as Defendants -

The Wongs
The Managing Agents
The Bailiff Company

One of the undertaking you have to give when applying for an injunction is that on the day the injunction is granted or on the next working day, you submit a claim against the Defendants for any financial losses you have suffered as a result of their actions and for anxiety suffered. This is provided by Section 3, Protection from harassment Act 1997. On that claim you will name the Defendants as follows -

The Wongs - Principal Defendants
The Managing Agents - Co-Defendants
The Bailiff Company - Co-Defendants

Because of the issues your case raises, Stu, I feel it is best that a legal professional handles this matter in its entirety. Your wife and yourself have been subjected to enough stress and a legal professional will be able to take a lot of pressure and anxiety off both your shoulders. Sometimes, a warning letter from a legal professional is enough to put a stop to this sort of conduct. They would also be able to tell you what to claim for and how much to claim. This is not something you should try and tackle without professional assistance.

If you could post up the name of the bailiff company, I can check if they hold an OFT Debt Collection Licence and, if they do, post up a document which takes you through the process of making a formal complaint to the OFT Credit Fitness Team, as well as the bailiff company's licence number.

I hope this helps.

[SHarker]

Re: Commercial Property Distress Baliff

Just to confirm I am a sole trader.