Defence/Counterclaim

[alteano1965]

Hi
My tenant has defended my claim for rent arrears for £2000 and has sent a Defence and a counterclaim for disrepairs, a copy of which was sent to me with the questionaire. Do I need to file a separate defence for the counterclaim, or should I just send the questionaire and wait until the small claims hearing takes place?

Thanks for your advice

regards

Alteano

[westminster]

Do I need to file a separate defence for the counterclaim, or should I just send the questionaire and wait until the small claims hearing takes place?

The counterclaim and the questionnaire are two entirely separate matters.

You must file a defence to the counterclaim within 14 days (if you don't the tenant can apply for a default judgment against you - i.e. you'll lose).

If the counterclaim was drafted by a solicitor, it will probably have numbered paragraphs? If so, address and deny each allegation, explaining each time why you don't accept liability, that the tenant didn't report the disrepair to you, etc*. Don't just make a general statement saying "I deny all the allegations".

The allocation questionnaire is to provide information to the court about deciding which track the claim should be allocated to, nothing to do with your defence.

*BTW what is the tenant actually alleging?

[alteano1965]

Thank you Westminster

The allocation questionaire says that I can supply aditional information for the judge, so was unsure if I just needed to put the facts there. it is a small court case, thank you for pointing out my mistake.

For what you are saying I must file a separate defence and deny each point
of the counter claim.
Do I need to use a special form to file the defence?

The tenant is claiming:
1- Flat was infested with feas
2- Toillet leaked
3-Carpets had fleas
4-boiler broke down 4 times during the tenancy
5- That he reported all these problems verbally
6-That he had paid a security deposit and this was not secured, therefore I must pay back 3 times the deposit as fine. He did not pay a security deposit and the section about deposit was crossed in our contract, so wonder what is the base of this claim.

As ussual will appreciate expert advice.

Regards

Alteano

[westminster]

Thank you Westminster

The allocation questionaire says that I can supply aditional information for the judge, so was unsure if I just needed to put the facts there. it is a small court case, thank you for pointing out my mistake.

What they mean by 'additional information' is information relevant to deciding which is the appropriate track. In some cases, it's not 100% clear, or sometimes both parties wish to use a different track to the one which might normally be used, etc.

For what you are saying I must file a separate defence and deny each point
of the counter claim.
Do I need to use a special form to file the defence?

Yes, the defence is separate, and no, you don't need a special form, you can type it out yourself, but you must put what's known as a 'Statement of Truth' at the end, and sign below. The wording to use is: "I believe that the facts stated in this defence are true". (you may remember similar wording at the bottom of the Particulars of Claim form, same format except for the word 'defence').

The tenant is claiming:
1- Flat was infested with feas
2- Toillet leaked
3-Carpets had fleas
4-boiler broke down 4 times during the tenancy
5- That he reported all these problems verbally

So, presumably this is all an invention/fantasy (going by what you've stated in other posts).

In order for T to have a chance of success, he would need at least some evidence of the alleged disrepair, and - because he is claiming to have reported the problems verbally, and this is difficult to prove - he will need somehow to demonstrate that his version of events is more likely to be true than your version of events. (In small claims, cases are judged on a 'balance of probabilities', so on issues where there is no hard evidence, the court will consider who is a more reliable witness, or who is more likely to be telling the truth, even if it's 51% v. 49% more likely).

Therefore, it would help you if you have any hard evidence that the tenant has behaved unreasonably in the past. He was obviously not reliable about paying his rent, but do you, for example, have evidence that you attempted to gain access to inspect but T refused - any emails or text messages refusing access from T? Or anything else?

Similarly, it will help your case if you show that you have acted with due diligence with regard to carrying out reported repairs, gas safety checks etc. This will demonstrate that you have taken care to comply with your obligations as LL and are therefore a responsible person who is likely to be a reliable witness.

6-That he had paid a security deposit and this was not secured, therefore I must pay back 3 times the deposit as fine. He did not pay a security deposit and the section about deposit was crossed in our contract, so wonder what is the base of this claim.

If the T did not pay a deposit, then he has no grounds to claim. It's up to him to prove he paid a deposit - which he can't do if he didn't.

As ussual will appreciate expert advice.

Please note I am not an expert, I just have experience in pursuing a few small claims, and I also have a good book about small claims procedure! (by Patricia Pearl, you can find it on amazon). In fact, I will now look up the relevant section on defences and post her advice.

[westminster]

Quoted from "Small Claims Procedure: A Practical Guide" by Patricia Pearl.

The defence must be more than a bare denial or it is liable to be struck out. Every part of the claim must be considered. It is practical to follow the same paragraph numbers as the claim so that nothing is missed out.

If an allegation is not covered in the defence it will be taken as proved. However, if the defendant does not admit a money claim the claimant must still prove that the sums due are owing.

The defence must state precisely which allegations are:

• denied
• admitted
• not admitted or denied but the defendant requires the claimant to prove
• if an allegation is denied, state reasons
• set out the defendant's own version of events if different from the claimant's

Based on what you've said in other threads, you're not admitting anything. So you need deny each claim - one by one - give the reasons why, and give your own version of events if different to the tenant's version.

The approach to the disrepair allegations is, I hope, obvious. As for the deposit non-compliance claim, deny the claim, then state that the claimant did not pay a deposit therefore the claimant has no cause of action under s.214 Housing Act 2004.

...and don't forget the statement of truth.

[westminster]

Anyway...

I recommend you buy that book....

What happens after this part of the procedure is over, is that eventually you be asked to send all your written evidence/documents to the court, as well as a witness statement (also ending with a statement of truth - i.e. "I believe that the facts stated in this witness statement are true").

So start thinking now about your document evidence (this includes photos BTW). There might be additional documents you need to obtain from third parties in readiness.

An easy way to help your case is to be very organized in compiling your documents (which may be letters, emails, transcripts of text messages, tenancy agreement, bank statements etc etc etc). Number the document pages, make an index of the documents, and go to a high street printers and get a few copies spiral-bound with the index at the front, so that when it comes to the hearing or if you refer to documents in your witness statement, you can easily refer the judge to, for example, "letter dated 15th May on page 23". This saves the judge time and I assure you the judge will appreciate it. You are also up against a solicitor so you need to be just as organized as they will be (though the judge will take into consideration the fact that you are a layperson, so don't worry excessively about 'competing' - you have the very major advantage of having the truth on your side).

General court etiquette tips: Address the judge as 'Sir' or 'Madam', and do not interrupt them when they are speaking, or the other party. Make a note of your point and when the judge or the other party has finished speaking, at that point ask if you may speak.

[alteano1965]

Thank you very much Westminster, I am taking good note of your advice and have spent most of today getting documents together.

In the pack I received from the Court there is a letter stating that the defendat has to pay a fee of £1.530 to the Court by the 22nd February or the Local Court would strike out the conterclaim. I phoned the Court today and they told me that he has not paid jet, and to phone again on Monday, is this fee waived to people on legal aid?

I am a bit concerned about the deposit the tenant says to have paid to me; could he claim that one of the monthly rents he paid during the term (after the tenancy agreement was signed) was actually a deposit and not rent? On the other hand he was a relation of my previous tenant, who introduced him to me, maybe he paid him some money believing that this was a deposit ?

Thank you again

Regards

Alteano

[P.Pilcher]

I would venture to suggest that the tenant must supply written proof of what he is stating. If he claims that he paid you in cash, then he must provide a written receipt signed by you. If he paid you by cheque, then he needs to provide the cheque made out to you appropriately marked "paid" by his bank.

P.P.

[alteano1965]

Thank you P Pilcher.

The contract I used does not say in which way the payment is made, if it was in cash, would a cash receipt be needed to prove that the payment really took place?

Regards

Alteano

[westminster]

In the pack I received from the Court there is a letter stating that the defendat has to pay a fee of £1.530 to the Court by the 22nd February or the Local Court would strike out the conterclaim. I phoned the Court today and they told me that he has not paid jet, and to phone again on Monday, is this fee waived to people on legal aid?

If you mean one pound and fifty three pence, this is a very low figure, so it would seem the tenant is getting assistance with court fees.

I am a bit concerned about the deposit the tenant says to have paid to me; could he claim that one of the monthly rents he paid during the term (after the tenancy agreement was signed) was actually a deposit and not rent? On the other hand he was a relation of my previous tenant, who introduced him to me, maybe he paid him some money believing that this was a deposit ?

No, he could not claim that one of his rental payments was a deposit. Not unless he had a letter or email from you saying that this is what happened. (And there would be no reason for a LL to say, okay don't pay me rent this month, pay me a deposit instead, so it would be a very implausible claim to make...).

If he paid a deposit to the previous tenant (I recall this tenant sublet from the previous tenant before he became your tenant?) then that is no concern of yours - the money was not paid to you, and the previous tenant did not pass the payment on to you, therefore you are not liable.

You've no need to be concerned, as P.Pilcher says, the tenant would have to provide specific evidence that he paid a deposit to you and since he doesn't have any evidence his claim will fail.

[westminster]

The contract I used does not say in which way the payment is made, if it was in cash, would a cash receipt be needed to prove that the payment really took place?

It is not enough simply to verbally claim that the cash was handed over.

There are all kinds of evidence, and with a cash payment the best evidence would be a receipt signed by the receiver of the payment, or a receipt typed on company stationery if the recipient was a company.

Or there might be witnesses who saw the payment being made.

If no cash payment was made, then it would be impossible to 'prove' it happened without falsifying evidence, which is a serious offence. You will be sent a copy of the evidence submitted by the other party before the hearing, such as documents and witness statements. Neither party can produce 'surprise' evidence at the actual hearing - it must all be submitted in advance.

[alteano1965]

Thank you again Westminster.

Sorry for my typo, I meant to say that the defendant was asked to pay £ 1,530 (one thousand five hundred and thirty pounds) by Monday 22nd, the letter says that if he doesn´t pay the fee, the Court will strike out the Counterclaim. Seems a very high fee to me, but maybe he won´t have to pay it, being on legal aid?

You are right, my previous tenant never used the property as his main residence, he actually lived next door, and allowed this friend (relation) to live at the rented flat. Maybe some money changed hands between the two of them at some point, and that is the reason the T says he has paid a deposit.

Regards


Alteano

[westminster]

Thank you again Westminster.

Sorry for my typo, I meant to say that the defendant was asked to pay £ 1,530 (one thousand five hundred and thirty pounds) by Monday 22nd, the letter says that if he doesn´t pay the fee, the Court will strike out the Counterclaim. Seems a very high fee to me, but maybe he won´t have to pay it, being on legal aid?

That's the claim fee for claims over £300,000 or 'an unlimited amount'.

See - Court fees
http://www.hmcourts-service.gov.uk/c...0_web_1009.pdf

Personally, I would check back with the court and find out more.

[westminster]

Maybe some money changed hands between the two of them at some point, and that is the reason the T says he has paid a deposit.

This sounds like a plausible explanation, but as I said, nothing to do with you. Either the solicitor is pretty useless (which is always possible) or tenant has provided him with misleading information, i.e. said he paid a deposit but failed to mention it wasn't paid to you, possibly not realizing that this detail is highly significant.

[alteano1965]

Thank you Westminster,

There is no specific amount entered for the counterclaim, the box for the amount was left in blank by the defendant. They are counterclaiming for 3 times the security deposit they claim to have paid (£ 620) this would mean £1,860 plus awards for disrepears, I hope they are not expecting to get £300,000 from me!

In the statement of true the defendant says that only one cheque was returned unpaid by the bank, and denies my claim that several of his cheques were returned. I have in my possession 3 returned cheques, so maybe he has lied to his solicitor.

Regards

Alteano