Defence/Counterclaim

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  • alteano1965
    replied
    Thank you Westminster,

    The rental agreement says clairly that no security deposit was received, so unless the defendant has fabricated evidence, his solicitor must know he is lying, but that is not possible to prove.

    I believe that legal aid is not available for the small Court track, so that may be the reson why they are going for the unlimited amount compensation for the alleged disrepairs and flea infestation, the security deposit fine would only be £1,800. I suppose the legal aid fees are changed no matter the outcome?

    Regards

    Alteano

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  • westminster
    replied
    Originally posted by alteano1965 View Post
    in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?
    I don't know the precise rules but I do know that it is not unusual for solicitors to act on behalf of clients who are lying - my last claim was against a local council, and the defence, drawn up by an outside firm of solicitors, contained lies. It may come down to the difference between actually knowing something your client has told you is false, and merely suspecting it privately.

    As Jeffrey says, their job is to represent their client as best they can.

    Anyway, let's see whether the fee for the counterclaim does indeed get paid today. If it does, and assuming the counterclaim is for 'an unlimited amount' and this isn't an error, then the claim may well not get allocated to the small claims track. In this event, as Jeffrey is hinting, it would be advisable to consider getting professional legal advice before submitting your defence.

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  • jeffrey
    replied
    Originally posted by alteano1965 View Post
    I wonder if solicitors are not supposed to behave within certain code of practice, in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?
    Solicitors do comply with the Solicitors Code of Conduct 2007. Their job is to act for their client, not to be even-handed between him and you.
    If you wish to represent yourself, unadvised, that's your prerogative.

    Leave a comment:


  • alteano1965
    replied
    Thank you Westminster,

    I have copied and pasted your lines to use in my defence, thanks again. I wonder if solicitors are not supposed to behave within certain code of practice, in this case I believe that it must be obvious to the defendant´s solicitor that his client is lying to him, but they proceed to act on his behalf regardless?, are they not accountable for their actions?

    I did not return the security deposit to my neighbour, given that there were two months of unpaid rent (August & September 2007), I decided to retain the one month´s security deposit, as payment of rent for August 2007. I know that under an AST I am not allowed to do that, but in this case the tenancy was not in practice an AST, although I suppose the onus would be on me to prove that the neighbour did not take residence at the property (?).

    I never recovered the rent for September 2007, either from the neigbour nor from the resident, who later became my tenant. I just put it down to loses and got on with my life...until now.

    There was no formal termination of contract with my neighbour, it was just a case of here you have the subtenant and you are lucky that he is willing to pay rent, I signed the new agreement for 6 months with them, and three months later things started to go wrong.

    Best regards

    Alteano

    Leave a comment:


  • westminster
    replied
    Originally posted by alteano1965 View Post
    No, in the counterclaim the defendant gives no details as to when or how he has paid a security deposit.
    It's like someone alleging "He ran me over in his car", but not the date it allegedly happened, registration number of vehicle, location, etc. How can you defend yourself against such a vague allegation, other than simply to deny it?

    I would say something like this in the 'defence to counterclaim': The claimant denies that he received a security deposit from the defendant at any time. The claimant notes that the defendant omits to give any details as to the date and manner in which he alleges he paid a deposit, [nor the amount of the alleged deposit]*, and the claimant puts the defendant to strict proof of the same.

    *If that's the case.

    On further consideration, as the T has made no specific claim in relation to the deposit, I think you should not include details of the previous tenancy in the defence to counterclaim, just stick to bare facts/denials, but do mention it in your witness statement (which you will submit along with all evidence such as letters, photos etc later on in proceedings).

    On the other hand I did take a security deposit from my neighbour in July 2007, which I did not secure, as I believed I did not have to, given that the AST was never created. I now fear that he may come back, adviced by his relation, to try to get the 3Xdeposit fine. Would it be difficult to defend myself then?
    Don't worry about this now; the likelihood is that it will never happen. And yes, it could well be a valid defence if he did claim, as would having returned the deposit over two years ago.

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  • alteano1965
    replied
    Thank you Westminster, very useful information.

    I have been a bit stresed over this, must admit, partly because I can not understand how the tenant´s solicitor has drafted a conterclaim, asking for a fine, knowing that there is no security deposit taken in the Rental Agreement, so I have been trying to imagine what they may be up to.
    No, in the counterclaim the defendant gives no details as to when or how he has paid a security deposit.

    On the other hand I did take a security deposit from my neighbour in July 2007, which I did not secure, as I believed I did not have to, given that the AST was never created. I now fear that he may come back, adviced by his relation, to try to get the 3Xdeposit fine. Would it be difficult to defend myself then?


    Best regards

    Alteano

    Leave a comment:


  • westminster
    replied
    Originally posted by alteano1965 View Post
    I strongly suspect that the rents for Nov and Dec 2007 were paid by cheque into my account, no by my neighbour, but by his relation, from his own bank account (before he became officially my tenant), as the branch the payments were made is the same he later used during the term.
    I wonder if he has received advice to claim that those payments represent a security deposit for the tenancy that started in January 2008, and claim the X3 fine Could he succeed.? Or a Security deposit only becomes such once I admit knowledge of it, and issue a receipt?
    Assuming this tenant did make those payments for the Nov & Dec 2007 rent, he can't get away with claiming they were secret deposit payments.

    The definition of a deposit under s.212(8) Housing Act 2004 is as follows:

    “tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—
    (a)the performance of any obligations of the tenant, or
    (b)the discharge of any liability of his,
    arising under or in connection with the tenancy.
    The tenant would have to prove there was an intention on your part to hold the money as security against a future tenancy. If the payments were equal to the rent and paid on the rent due date, and there is no written indication from you that you intended to 'hold' the money against a future tenancy, (instead of treating the money as rent), I am certain the judge would find that the payments were not deposit payments.

    But you do need to say that there was a previous tenant/tenancy (without going into whether it was an AST or not) so that it is clear that these payments were rent. It might also be a good idea to include a copy of the previous tenancy agreement when it comes to submitting evidence, and any written evidence you may have of when/how that tenancy ended, how you came to discover the subletting.

    You'll remember that I mentioned before there can be no 'surprise' evidence produced at the hearing, and not previously disclosed. This means that you will (or should) know exactly what the tenant is alleging before the hearing, which will give you the opportunity to submit any evidence with undermines the allegation. In short, the tenant can't 'trick' you by suddenly changing his story at the hearing - any evidence not previously disclosed will not be admitted. He can change his story before the hearing, so long as he informs you and the court, but the judge may want to know how the 'confusion' arose.

    Does the T's counterclaim give any details of the alleged deposit in terms of when he claims he paid it, etc? It should at least say the date he claims to have paid.

    Don't get too worried/stressed about it all. You are telling the truth, which gives you a huge advantage. The tenant is lying and judges are very accustomed to people lying and seeing through those lies - it's part of their job and they are not stupid.

    Leave a comment:


  • alteano1965
    replied
    Thank you Westminster,

    I agree, I will not give further details of the previous tenancy in the counterclaim, however I strongly suspect that the rents for Nov and Dec 2007 were paid by cheque into my account, no by my neighbour, but by his relation, from his own bank account (before he became officially my tenant), as the branch the payments were made is the same he later used during the term.
    I wonder if he has received advice to claim that those payments represent a security deposit for the tenancy that started in January 2008, and claim the X3 fine Could he succeed.? Or a Security deposit only becomes such once I admit knowledge of it, and issue a receipt?

    Regards

    Alteano

    Leave a comment:


  • westminster
    replied
    Originally posted by alteano1965 View Post
    I was not sure if it was a good idea to mention the previous tenancy agreement; I signed a contract with my neighbour, who was going to use the property to receive relatives from his home country who were coming on holiday, it seemed like a good idea, and I trusted him. However, I used the wrong form and the tenancy agreement with my neighbour says that it is an AST, but given that the property was never used as his main residence, then I believe that in fact the AST was never created, am I correct?
    Regardless of the name given to the contract, it was either an AST or a common-law contractual tenancy. Its precise status has no relevance to your claim against T, or to the counterclaim, i.e. this is an example of an irrelevant detail. All you need to state is that there was a previous tenancy with Mr Neighbour, who allowed Mr X. Tenant to sublet.

    Leave a comment:


  • alteano1965
    replied
    Thank you Westminster,

    I was not sure if it was a good idea to mention the previous tenancy agreement; I signed a contract with my neighbour, who was going to use the property to receive relatives from his home country who were coming on holiday, it seemed like a good idea, and I trusted him. However, I used the wrong form and the tenancy agreement with my neighbour says that it is an AST, but given that the property was never used as his main residence, then I believe that in fact the AST was never created, am I correct?

    Regards

    Alteano

    Leave a comment:


  • westminster
    replied
    Originally posted by alteano1965 View Post
    I am replying one by one all the paragraphs in the counterclaim, in one of them the defendant says that he agrees that he occupied the premises as a tenant as from 01/01/2008 (the date we signed the contract) but he does not say that he was already living there without a contract with me, would it be worth it mentioning it? . In fact that was the very reason I agreed not to have a security deposit, I felt that some kind written agreement was better that none at all.
    Yes, I would provide details of how the tenancy came into being; as you say, it provides a context for you not asking for a deposit. And you'll note in the bulleted list in post #5, it says the defence should set out your own version of events if different from the claimant's.

    Note that, as a general rule, you should try to be reasonably concise and stick to basic facts. Judges have very limited time to read case documents, and may miss important points if they are hidden in a lot of unnecessary detail or waffle.

    Leave a comment:


  • alteano1965
    replied
    Thank you again Westminster,

    I am replying one by one all the paragraphs in the counterclaim, in one of them the defendant says that he agrees that he occupied the premises as a tenant as from 01/01/2008 (the date we signed the contract) but he does not say that he was already living there without a contract with me, would it be worth it mentioning it? . In fact that was the very reason I agreed not to have a security deposit, I felt that some kind written agreement was better that none at all.

    Best regards

    Alteano

    Leave a comment:


  • westminster
    replied
    Originally posted by alteano1965 View Post

    I have been told by the Court that it is better to give it until Tuesday to check if the paymet has been made. I also wonder if the legal Aid will cover for so much.
    Fine, as long as Tuesday is within the deadline for submitting the defence. Tenant might pay the fee (and might get a reduction on it, who knows) one minute before the court closes on Monday.

    I forgot to mention before that I was not present when the tenant signed the Tenancy Agreement, it bears my signature as the Landlord, of course, and that of the Tenant, plus my father in law´s as a witness, who was indeed present . Could this put in doubt the validity of the document?
    Not at all. You do not have to be present when T signs, or vice versa. Nor is a witness necessary. (And legally, there doesn't even need to be a written agreement for a valid tenancy to exist - but it's obviously more sensible to have one).

    Leave a comment:


  • alteano1965
    replied
    Thank you again Westminster,

    I have been told by the Court that it is better to give it until Tuesday to check if the paymet has been made. I also wonder if the legal Aid will cover for so much.

    I forgot to mention before that I was not present when the tenant signed the Tenancy Agreement, it bears my signature as the Landlord, of course, and that of the Tenant, plus my father in law´s as a witness, who was indeed present . Could this put in doubt the validity of the document?

    Thank you

    Alteano

    Leave a comment:


  • westminster
    replied
    Originally posted by alteano1965 View Post
    If the fee is not paid by Monday, would it mean that the counterclaim no longer applies, and therefore I do not need to defend it?
    Proceed on the assumption that the counterclaim will go ahead, and submit your defence within the required deadline.

    Leave a comment:

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