TDS case and Counterclaim

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    TDS case and Counterclaim

    Hi this is my first post here

    I have a on going problem with my ex LL's, our dispute is currently with the courts and we are awaiting a court date. I have researched my case extensively but I thought I would post it here in case you knowledgeable folks can open up any questions that I haven't considered.


    Our AST commenced in August 2007

    Our deposit has not been protected

    The property is a 2 bed that had the opportunity to be a 3 bed as part of the living room sectioned off by the means of a sliding wall. We spoke to LL about getting a 3rd person in prior to signing the contract and was told this would be ok as long as the rent was covered.

    Lots of debris was left from previous tenants, e.g. old pots and pans, a bin, old duvet and pillows, door mat that was mouldy and soaking wet, we spoke to LL2 and was told this can be disposed of as hardly anything there was theirs, and to told on to the rest and they will collect it (we boxed some stuff but it was never collected, we have a witness who heard this

    In October we found a 3rd person and she moved in, we gave her a copy of our ast for her reference (she said she signed it, don't really know why as she isn't part of the original contract), she then paid a cheque for rent into LL's account and gave us a cheque each for £200 (total £400) to make us all have put in an equal deposit amount of £400 each for any damages.

    A few weeks later LL issued us 3 with a section 21 saying they wanted to sell (this was issued 1 month too early and is not valid as our deposit is not protected)

    T3 then states that she is going to get advice from her solicitor as LL has broken her contract, LL says there is no contract with you, we thought you were there friend.

    Basically LL said we committed fraud and Illegally sublet and was going to be arrested

    We all agreed a date to move out and gave back the keys (over 2 months before the break clause). LL entered and said we left the place in a state, I PROMISE YOU IT WAS NOT, there were 6 small holes from my shelves that I tried to repair but didn't do a good job of, I admit this. LL also says we stole their stuff (the stuff LL2 told us the throw away). Therefore basically refuse to give as back any of our deposit.

    We took them to court for lack of protecting our deposit a and the x3 compensation, they have counterclaimed for loss of property (the items we threw away); also in LL's statement they state that the previous tenants said they can throw away 2-3 items that they are claiming for on their expenses sheet! Rent for after we moved out and gave back keys, council tax (which is paid and up-to-date!), repairs, carpet cleaning (which had not been cleaned since 2006 from when the previous tenants moved in), general cleaning (we had to thoroughly clean the place before we moved in). Oh and also they are claiming back the new locks for the front door!!! it seems like they are just making up numbers!!

    I have since noticed that the inventory that doesn't state anything such as pots and pans and isn't even signed by us or LL or even have our names on it. Also I can't verify any of the companies they used, I checked 118 and the internet and can't find any information on them, also the carpet cleaners email is just a quotation and not a receipt, they have provided printouts fro the IKEA website for their receipts for loss of property?!!, They have submitted costs from their mortgage company (not sure what is for) but this has nothing to do with us and is not referenced in our ast,

    I would also like to mention that it was a compact new build property, we previously lived in the block and purchased everything we would need, there was no space to keep 2 of things such as a kitchen bin, cutlery etc theses were the things that were disposed of, I think it was unfair of them to later expect us to throw away our stuff to keep hold of ex tenants stuff.


    What are your thoughts on this?

    Many thanks

    #2
    Anyone????

    Comment


      #3
      My thoughts are that he is panicking like mad and clutching at straws. All the stuff about the moveable items (whoever they did - or did not - belong to, whatever you did - or did not - do with them, whether they even existed!), ditto the supposed cleaning bills, is academic, because you did not sign the inventory.

      Therefore, he has no proof that you agreed the contents and state of repair and cleanliness of the property and contents on the day you moved in. Whatever he claims about the state of it now, is meaningless. He does not sound to have a leg to stand on and you should look forward to his claim being thrown out and yours being upheld. He sounds like a real shocker and other than the fact that he might already have spent your deposit and not have enough to pay you it back three times, I would be saying, with no qualms, look forward to seeing you in court.

      As far as your third tenant is concerned, does your AST specifically forbid sub-letting? If so, then LL should not have accepted rent from her. If not, then what's the problem?
      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

      Comment


        #4
        hi thank you for your reply

        I totally agree and I am amazed they are carrying on with it.

        Or AST does state no subletting, however the first section had the old tenants name followed by ".... and two other occupying bodies" LL crossed out ex tenants name and amended it to ours and initialled it but left the line saying ".... and two other occupying bodies". Also as you said they accepted the rent, they entered into communication with tenant 3 (they let her off a weeks rent for inconvenience for having to move again) they also issued the section 21 to her also.

        I also notice that the invoices for the repair guy and the cleaner look remarkably similar (like they could have been made up at home) and I can find no record of this handyman construction company

        Also they are claim rent from after we vacated, how can they explain this!!!!

        Thanks again
        Last edited by looking4info; 03-10-2008, 16:12 PM. Reason: -

        Comment


          #5
          Originally posted by looking4info View Post
          hi thank you for your reply

          I totally agree and I am amazed they are carrying on with it.

          Or AST does state no subletting, however the first section had the old tenants name followed by ".... and two other occupying bodies" LL crossed out ex tenants name and amended it to ours and initialled it but left the line saying ".... and two other occupying bodies". Also as you said they accepted the rent, they entered into communication with tenant 3 (they let her off a weeks rent for inconvenience for having to move again) they also issued the section 21 to her also.

          I also notice that the invoices for the repair guy and the cleaner look remarkably similar (like they could have been made up at home) and I can find no record of this handyman construction company

          Also they are claim rent from after we vacated, how can they explain this!!!!

          Thanks again
          He's having a laugh. I have been given to understand on this forum that it is NOT OK to cross out one tenant's name and substitute a new one. It invalidates the contract; a new one shoudl be produced and duly signed, witnessed etc., bearing only the names of the new tenant(s). The invoices too are irrelevant (even if they were genuine) for same reasons as explained above.

          You may want to book an appointment with a solicitor just to check your claim is all in order, because you stand to be awarded a fair bit here and it would be a pity to lose it on a technicality. However, from what you've told us, this seems to be a 'barn-door case', as they say.

          Good luck - let us know how you get on.
          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

          Comment


            #6
            Thanks for your reply.

            Can you please explain why it isn't ok that he crossed the name off and changed it to ours, is there an act I can refer to to look this up?

            Many thanks

            Comment


              #7
              Originally posted by looking4info View Post
              Thanks for your reply.

              Can you please explain why it isn't ok that he crossed the name off and changed it to ours, is there an act I can refer to to look this up?

              Many thanks
              No, it's simple legal principles. Once a document exists and has created/assigned an estate or interest, it cannot be tampered with as you seek. Unauthorised alteration is forgery too!
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment


                #8
                Originally posted by looking4info View Post
                Thanks for your reply.

                Can you please explain why it isn't ok that he crossed the name off and changed it to ours, is there an act I can refer to to look this up?

                Many thanks
                If he intends to rely on the alteration, then how about.

                (1) Uttering a false instrument, an offence contrary to the Forgery and Counterfeiting Act 1981 (can't remember which section)

                (2) Perverting or attempting to pervert the course of justice, which is an offence at common law.

                (3) Contempt of court. However, I can't remember whether this type of contempt falls under the provisions of the Contempt of Court Act 1981 or if it is an offence contrary to common law.

                (4) Perjury, an offence contrary to the Perjury Act 1913 (but only if he makes false claims in his oral evidence in court after being sworn as a witness).


                As these are criminal matters, you will not actually plead the above allegations in that format, you will simply be denying his claims in your defence to his counterclaim. Nonetheless, it is certainly worthwhile pointing out to the landlord (and their solicitor), in writing, that alteration of documents which are relied upon in evidence constitutes any or all of the above criminal offences for which he may be fined or go to prison, and you will be drawing the judge's attention to these issues in your TDS case. The judge could potentially then refer the matter to the Police.

                I've seen litigants in person try this sort of thing several times, and on each occasion, when they've realised the error of their ways, they have caved in and dropped or settled the case.

                HTH
                Health Warning


                I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                Comment


                  #9
                  sorry, I can't see that any of those points would be relevant unless it could be proven that the landlord had altered the agreement with criminal intent in mind and that certainly doesn't seem the case here.

                  While the landlord sounds like a real charmer, its more likely that the agreement has been altered through misguidance, ignorance, stupidity perhaps, or even a desire to save the cost of producing a new agreement rather than any attempt to defraud someone.
                  My advice is not based on formal legal training but experience gained in 20+ years in the letting industry.

                  Comment


                    #10
                    I agree but they do say ignorance is no excuse for breaking the law.

                    I don't want to get LL sent to prison, I just want our deposit back (plus compensation), we have emails asking for our inventory list and the new amended contract corrected but this was nevr provided.

                    This is useful to know though, I was just interested as to why this isn't allowed, you can understand why though as anyone could alter a document then initial it; it doesn't make it correct

                    Comment


                      #11
                      Originally posted by oaktree View Post
                      sorry, I can't see that any of those points would be relevant unless it could be proven that the landlord had altered the agreement with criminal intent in mind and that certainly doesn't seem the case here.

                      .
                      Well, as I stated in my post, OP will not be pleading criminal intent as part of their case. Secondly, the issue of proof would only arise if the civil case was referred to the Police/CPS.


                      It seemed to me that OP was saying that the LL was claiming (amongst other things) that the property had been sublet in breach of covenant. My understanding from OP's posts was that the LL was seeking to prove this by producing an amended agreement which proved that subletting was not permitted and that the deletion/amendments were done by the LL, after the event, in attempt to prove that part of their counterclaim. If that is the case, then there is clearly an attempt to prejudice the interests of justice (which is the core of the offences I set out).

                      Perhaps OP could clarify this issue, because it is not immediately apparent from their posts.
                      Health Warning


                      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                      Comment


                        #12
                        Yes you are right here ^^

                        He is basically saying the we breached the contract by bringing in a third person (subletting), LL has pocketed their rent money and now wants this sum again from us as he is now dismissing the third person's rent money (if this makes sense).

                        I didn't even realise before that the amendment to the contract (crossing out bits) would make it not a proper contract, I was just going to go by what I know about inventory lists and the TDS scheme. Also the fact that LL accepted the third persons rent, entered into communications with them and also issued the section 21 to them.

                        I've heard the term 'Consideration' before where you are considered a tenant if there is a verbal agreement and if you pay rent etc... does anyone know about this?



                        Note: The ammendment was made when we signed the contract, infront of us, we all signed it on that day
                        Last edited by looking4info; 07-10-2008, 15:27 PM. Reason: --

                        Comment


                          #13
                          Originally posted by looking4info View Post

                          Note: The ammendment was made when we signed the contract, infront of us, we all signed it on that day
                          That's what I read and understood your post to mean; the landlord is just stupid and doesn't realise - yet - that he is onto a loser with this one. He can hardly dismiss the 3rd tenant if he actually received rent from them; even if he doesn't accept them as a legal tenant he still has to account for the money he received as rent for the property.
                          My advice is not based on formal legal training but experience gained in 20+ years in the letting industry.

                          Comment


                            #14
                            Originally posted by looking4info View Post
                            I've heard the term 'Consideration' before where you are considered a tenant if there is a verbal agreement and if you pay rent etc... does anyone know about this?
                            Yes. See "Contracts- basics" thread here: http://www.landlordzone.co.uk/forums...ead.php?t=5470.
                            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                            4. *- Contact info: click on my name (blue-highlight link).

                            Comment


                              #15
                              Originally posted by looking4info View Post


                              Note: The ammendment was made when we signed the contract, infront of us, we all signed it on that day
                              OK, I misuderstood. It appears Jeffrey also thought you were saying the LL had altered the agreement at some point after the commencement of the tenancy.

                              No matter - the position is that even if there was a breach (by subletting), then by accepting rent without qualification* after becoming aware of the breach and even more so (or, to be flashy, a fortiori), by accepting rent from the 3rd person (the puported sub-lessee), the LL has waived the term which prohibits subletting.

                              In any case, even if the court finds against you on that point what damage can the LL be said to have suffered by the subletting?



                              * ie: if the LL, after having become aware of a breach of tenancy, wanted to reserve his rights in respect of that breach, he should have accepted the rent "without prejudice".
                              Health Warning


                              I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                              All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                              Comment

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