possession order hearing late defence

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    possession order hearing late defence

    Hi

    We have our possession order hearing soon.
    The tenants at first filed no defence, then submitted a defence late. It was posted 3 days late (outside the 14 days).

    Can a default judgement be made (to grant the PO) as defence arrived after the time permitted?

    Anyone have experience of this and could advise please? Thank you.

    #2
    Ah, it's pointless trying and will just annoy the judge. Do you know what the defence is?

    Comment


      #3
      It is not possible to get a default judgment for a possession claim.

      The court has pretty wide ranging power to accept late service of defence (or witness statement etc.), and will almost always exercise to ensure they arrive at a correct decision. Here, the CPR actually explicitly allow a defendent to take part in a hearing even if they're late or fail to file a defence. So don't bother.
      I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

      I do not answer questions through private messages which should be posted publicly on the forum.

      Comment


        #4
        JKO

        Thanks.

        The defence given is, i quote ' I do not have a tenancy agreement or have been sent one or given one'.

        He' s lived in the house for 7yrs with no tenancy agreement (was a close family friend of the LL) but the LL died and the property is to be sold for the beneficiaries. He refused to leave or pay rent so we served a section 21 (yes we've checked, its valid)

        Thanks for the advice, I wont mention it ­čśé

        Comment


          #5
          KTC thank you, noted. Won't even mention it.

          Comment


            #6
            Who are the 'we' that served the s21?
            What is their relationship to deceased LL?

            An standard AST with fixed Term of less than 3 years does not have to be 'in writing'. Worth mentioning to Judge IMO
            That is a poor last minute Defence provided by the T, but the Executor should attend the Hearing with Family Solicitor to make the case and apply for costs.

            Comment


              #7
              You need to dig out any evidence you have, (bank statements, council tax bills, utility bills, etc) that the guy has only been there the seven years. It sounds like he will try to say it is longer so he can claim to have an old fashioned tenancy that is impossible to evict.

              BTW, I take it you gave the proper notice of 'new landlord'?

              You also, perversely, need to prove he has been there since before October 2015, as otherwise you run into problems with lack of gas certificate, how to rent booklet and other nonsense.

              Comment


                #8
                Who is named as landlord on the notices & court papers you submitted please? The deceased owner, his estate, executors, new owner registered with Land Reg?

                If Land registry have change of ownership have notice(s) compliant with s48 & s3 been served? (If not no rent due, criminal offence & fines).
                I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                Comment


                  #9
                  Wow, you guys are good!

                  Thanks for the responses. I'll answer all your questions in one post, in order.

                  We, the executors served the S21.
                  One of the executors is connected to the deceased LL via a child the other is a friend.

                  Thanks Mariner, did not know this: ' AST with fixed Term of less than 3 years does not have to be 'in writing'.
                  I think we'll be ok as what we do have is bank statements from the LL with payments from the tenant account each month into the LL accounts, he was paying rent (for the previous 6/7 years) and if my understanding is correct (aka googling the life out of this), this exchange of money between them for rental property in itself creates a tenancy.

                  I agree it's a poor defence, that's all that is written upon it.

                  JKO, we know it was only that timeline and not longer as the deceased only purchased this second property 6/7years ago. I have his mortgage papers to verify this.

                  Yes we gave proper notice of new landlord, learned from here to do that actually

                  We can prove he has been there since before October 2015. A) he doesn't deny it B) there's a clear audit trail from his account into the LL'S for the whole duration.


                  Theartfullodger ,

                  The section 21 Notices was served from:
                  The Estate of Joe Blogs
                  C/O Executor name 1 and Executor Named 2

                  The new landlord notice was served from: Executor name 1 and Executor Named 2

                  The court papers were filed under Executor name 1 and Executor Named 2 (representatives).

                  Land registry does not have change of ownership have notice yet. as were looking to sell the property land registry have said its not absolutely necessary for us to have a change of ownership (to us) as it will be updated once it has been sold with the new owners details.


                  Hope that answers everything.

                  There is a LOT more to this case, that i shall come back on and update you about, but my priority is the imminent PO hearing tomorrow and i wondered about it being sent in late being a 'thing' but realised quickly that actually the defense given is pretty weak and we should be able to handle that. fingers crossed.

                  Just out of curiosity, will that defence form and whats written on it be all the judge will focus on or can the T throw in some more 'things' at court (i suspect they might try).. even though it's a 10 min hearing?

                  Sorry for all the questions, i've never done this before and it's all quite daunting about what i'm supposed to say and do tomorrow to get this person out so we can have access to the estate property. Stress levels MAXED out .

                  Comment


                    #10
                    JKO, we know it was only that timeline and not longer as the deceased only purchased this second property 6/7years ago. I have his mortgage papers to verify this.
                    Can you prove that it was bought with vacant possession? You don't want them to be able to say that sure Joe Blogs became landlord 7 years ago, but I was already living there from before and Joe bought the place with me as tenant in situ.

                    The judge can/should/may check that all your paperworks are in order, i.e. that you are entitled to possession via s21. Make sure you have 3 copies of everything just in case it's needed.
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    I do not answer questions through private messages which should be posted publicly on the forum.

                    Comment


                      #11
                      Hi, we can prove that it was bought with vacant possession as the T has provided us with his prior address details and timeline of his accommodation history (pertaining to the 'other' matter). So it is unlikely that he would use that as an objection. But i appreciate you raising that for me to be aware of. thank you.

                      3 copies of everything?? ay currumba!

                      Comment


                        #12
                        Originally posted by JK0 View Post
                        You need to dig out any evidence you have, (bank statements, council tax bills, utility bills, etc) that the guy has only been there the seven years. It sounds like he will try to say it is longer so he can claim to have an old fashioned tenancy that is impossible to evict..
                        Just for info- I assume you mean an Assured Tenancy?

                        Comment


                          #13
                          Originally posted by Palomino View Post

                          Just for info- I assume you mean an Assured Tenancy?
                          I believe so, though they are before my time.

                          Comment


                            #14
                            < 15 January 1989 - Regulated tenancy

                            15 January 1989 - 27 February 1997 - AT (by default), AST (by notice)

                            >= 28 February 1997 - AST (by default), AT (by notice)
                            I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                            I do not answer questions through private messages which should be posted publicly on the forum.

                            Comment

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