Jump to content
House Price Crash Forum

Submitted N208 Claim For Deposit Non-Protection


kaladorm
 Share

Recommended Posts

Here I've copied the judgement on the defendants appeal (which was centered on the fact that the landlords agents didn't tell them about the DPS scheme, and that in our tenancy agreement it said we had to contact them for a reference number so it was our fault...lol):

Upon reading the file

IT IS ORDERED THAT:

1. Permission to appeal is refused. An appeal has no real prospect of success and there is no other compelling reason for an appeal to be heard

2. Reasons: The defendant landlord failed to place the deposit in an approved scheme. This is not a case of a late placement (when no penalty would be payable) but no placement at all. Treating the application notice as an appellant's notice, the same raises two points. First, that the defendant was badly advised by his agents. That is not a defence. The obligation to deal with the deposit in a certain way is a statutory requirement. Whether or not the defendant has a claim against those agents is immaterial to this action.

3. Secondly, that the claimants cat caused damage, and the claimants were in breach of certain terms of the tenancy agreement. That does not provide a defense to this claim either although it might provide a basis for a counterclaim or separate action.

4. Accordingly, the order by the District Judge was correct and inevitable

Link to comment
Share on other sites

  • 2 weeks later...
  • Replies 114
  • Created
  • Last Reply

Top Posters In This Topic

  • 2 months later...

The hearing was successful (with a no-show on their part). The charging order was made final including costs for the original application, land registry updates and the land registry office copy.

I don't believe the defendants know about the result yet, as notice was served to them at the estate agents (named on the contract as the address to serve notice to) who returned the documents stating they had nothing to do with it. The defendants have also said that we will be waiting a long time for our money as they have no plans to sell the house and will continue to rent it out.

Next step is to apply for an order of sale using the part 8 claim form

Link to comment
Share on other sites

... they have no plans to sell the house and will continue to rent it out.

Next step is to apply for an order of sale using the part 8 claim form

So you may be repossessing some innocent tenant's home at some point.

AFAIK you're not under any legal obligation there, but I'd say there's now a strong moral obligation on you to do your best to keep any tenants informed of their danger. Bearing in mind that noone is going to tell you when a new tenant moves in, that calls for some thought.

I guess the ideal solution would've been to repossess the malefactor's own home ...

Link to comment
Share on other sites

So you may be repossessing some innocent tenant's home at some point.

AFAIK you're not under any legal obligation there, but I'd say there's now a strong moral obligation on you to do your best to keep any tenants informed of their danger. Bearing in mind that noone is going to tell you when a new tenant moves in, that calls for some thought.

I guess the ideal solution would've been to repossess the malefactor's own home ...

I'm hoping it won't go that far and that this, finally, will cause them to wake up and realise they can't keep avoiding it.

I also don't believe that a judge would enforce the order of sale (with 1 months notice before bailiffs change locks) effective immediately. I suspect that a judge would find that the order of sale is effective once the current tenants contract ends, which we would have no objections to.

As for repossessing the landlords current home, they are out of the country and it would require a lot more legal wrangling to obtain land registry documents, out of jurisdiction notices etc etc.

Link to comment
Share on other sites

as far as I'm aware,and I'm not a lawyer,if you are second/third charge(and you probably will be) then should there be a shortfall on the first charge and you have forced a sale,then you are liable for it.

eg defendant owes bank £100,000,and you are second charge for £2,500.You force sale and property goes for £80,000,then you are liable for the shortfall of £17,500 on the first charge.

Be very careful here and take specific legal advice on this point before you do anything.

In terms of general debt recovery,you are probably better off getting bailiffs to go around and seize goods to the value of.....

You are able to contact the other creditors in the chain and find out how much they are in the hole for.If the defendant has loads of equity then you could probably safely force a sale.

Have you downloaded their land reg title docs?

Yes I have, the land registry docs were necessary for applying for the charging order. The only other 'interest' in the property is the bank who the mortgage is with.

A judge won't allow an order of sale if there is negative equity in the property - part of applying for an order of sale is to provide an estimate of the value of the property. As far as the claimant being liable for any defendants shortfall I'm not sure if that is the case, the wording of an order is as follows:

The claimant shall first apply the proceeds of sale of the property –

(i)to pay the costs and expenses of effecting the sale; and

(ii)to discharge any charges or other securities over the property which have priority over the charging

order.

Out of the remaining proceeds of sale the claimant shall –

(i)retain the amount due to him as stated in paragraph 1; and

(ii)pay the balance (if any) [to the Defendant] [to ————————————————] [into court].

Of course it's open to interpretation but it only specifies applying the proceeds of sale to discharging any other charges

Link to comment
Share on other sites

Just trawled through this topic in full - fantastic stuff from all involved particularly the OP. I'm just amazed that the ex Landlords still haven't paid up. Some people really do think they are above the law.

So seeing as they haven't actually paid up any money yet, will they currently be suffering at all from the Judgement - e.g. a big dent in the credit rating?

Link to comment
Share on other sites

Just trawled through this topic in full - fantastic stuff from all involved particularly the OP. I'm just amazed that the ex Landlords still haven't paid up. Some people really do think they are above the law.

So seeing as they haven't actually paid up any money yet, will they currently be suffering at all from the Judgement - e.g. a big dent in the credit rating?

A dent in the credit rating certainly as an unpaid judgement is marked on there for (I think) 6 years. having said that they still seem to be in complete contempt of the court proceedings.

I forwarded on the final charging order to them (which has now increased the debt by a further £200 in costs) and explained we would be going ahead with an order of sale. They promptly replied and asked to settle, the debt stands at nearly £4.5k and we offered them £3k to settle back in December (prior to the charging order), they counter offered £1k which we rejected. Since obtaining the charging order we have since offered them the 'same' £3k to settle, despite the increased debt, and they in response have offered the same £1k in addition to threats of court action, investigations from inland revenue (lol?) and whatnot. I promptly told them that the offer was unacceptable and we'll be going ahead with an order of sale.

Oh I should note that the LL have threatened us with (paraphrased) 'if we don't settle they'll take us to court for damage to the property and we will end up paying their costs and it will cost us more than what we owe them'. I have kept a copy of the email stating damages were priced at £400 - still extortionate but nothing compared to the amount now owed. As we have offered 'more' than that amount in settlement (note marked "without prejudice except as to costs" to prevent it being used in court without our permission) then, if they make good on their threats, they have unnecessarily increased the costs of proceedings and we shouldn't be liable for their costs :).

So watch this space over the next few months and we'll see if an order of sale goes through.

Edited by kaladorm
Link to comment
Share on other sites

A dent in the credit rating certainly as an unpaid judgement is marked on there for (I think) 6 years. having said that they still seem to be in complete contempt of the court proceedings.

I forwarded on the final charging order to them (which has now increased the debt by a further £200 in costs) and explained we would be going ahead with an order of sale. They promptly replied and asked to settle, the debt stands at nearly £4.5k and we offered them £3k to settle back in December (prior to the charging order), they counter offered £1k which we rejected. Since obtaining the charging order we have since offered them the 'same' £3k to settle, despite the increased debt, and they in response have offered the same £1k in addition to threats of court action, investigations from inland revenue (lol?) and whatnot. I promptly told them that the offer was unacceptable and we'll be going ahead with an order of sale.

Oh I should note that the LL have threatened us with (paraphrased) 'if we don't settle they'll take us to court for damage to the property and we will end up paying their costs and it will cost us more than what we owe them'. I have kept a copy of the email stating damages were priced at £400 - still extortionate but nothing compared to the amount now owed. As we have offered 'more' than that amount in settlement (note marked "without prejudice except as to costs" to prevent it being used in court without our permission) then, if they make good on their threats, they have unnecessarily increased the costs of proceedings and we shouldn't be liable for their costs :).

So watch this space over the next few months and we'll see if an order of sale goes through.

if it does get put up for sale, don't forget the rightmoce link so we can all ring up and put derogatory offers in on it.....

Link to comment
Share on other sites

  • 4 weeks later...

The Third-Party Debt Order against the account details listed in our tenancy agreement has revealed £0 in the account. Disappointing. The court staff couldn't offer advice on attending the hearing (as we intend to be able to claim costs at least) so it looks like we still have to go through with the hearing to make it final, seems a bit pointless :)

Application for an order of sale coming up... As this thread is a useful reference (and for anyone who actually gets this far) it's a Part 8 claim form

PRACTICE DIRECTION 73 – CHARGING ORDERS, STOP ORDERS AND STOP NOTICES

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part73.htm

Part 8 ALTERNATIVE PROCEDURE FOR CLAIMS

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part08.htm

Edited by kaladorm
Link to comment
Share on other sites

Can you talk us through the methods you used to identify and request information from the account? I suspect more of us will be home grown financial investigators over the coming months...

I'm familiar with the powers when acting for the government, but not for a civil case!

Link to comment
Share on other sites

Can you talk us through the methods you used to identify and request information from the account? I suspect more of us will be home grown financial investigators over the coming months...

I'm familiar with the powers when acting for the government, but not for a civil case!

Well we already had the bank account details from the Tenancy Agreement, that's a key part. Everything is pretty much handled by the bank, so the court sends a request to the bank to carry out the searches. The process is as follows;

1. Fill in a third-party debt order form. (N349) http://www.hmcourts-service.gov.uk/courtfinder/forms/n349_0302.pdf

2. Hand it in to the court - it costs £100

3. The court processes the form and serves notice on the third-party (bank) and sends a copy to you. Notice is then served to the defendant 7 days later (at which point the bank has already responded). This is to stop the defendant being able to withdraw funds.

4. Within 7 days of being served the bank replies to you and the court after having carried out a search for all accounts in the defendants name held at that bank. If there is anything in there up to the amount owed it is frozen until the final hearing. The bank may also charge for the searches (this is taken out of the defendants account not the debt).

5. The hearing will make the order final (if successful)

Edited by kaladorm
Link to comment
Share on other sites

  • 4 weeks later...

Just read this topic. I find it fascinating. Currently don't rent - and I'm off put renting by reading about these LL that like to try it on.

To boot where I live we don't have a Deposit Protection Scheme.... our rental rights haven't been updated since 1987 I think it was (Isle of Man) Hope all ends well with you!

Tell a lie - looks like 1976.... http://www.gov.im/lib/docs/oft/tenancytextonlyversion.pdf

Edited by Gerinako
Link to comment
Share on other sites

  • 3 months later...

My first update in a while - finally had the hearing today for an order for sale.

The LL didn't show up and didn't deign to respond to the notices (by post and email) that we were applying for an order for sale. The order was granted and the defendants have been given 28 days from today to either pay the amount owed (including the additional costs of obtaining the order) or to deliver possession of the property to us also from 28 days from today. For those interested the order is of the form of Appendix A here: (long link)

http://www.google.com/url?sa=t&source=web&cd=1&ved=0CBwQFjAA&url=http%3A%2F%2Fwww.justice.gov.uk%2Fguidance%2Fcourts-and-tribunals%2Fcourts%2Fprocedure-rules%2Fcivil%2Fpdf%2Fpractice_directions%2Fpd_part73.pdf&rct=j&q=order%20for%20sale%20appendix%20a&ei=zeUJTrK_BcOKhQf9vJnYDw&usg=AFQjCNHI_0hhT4bm_xqL_H83QZkBsw84JQ&sig2=80aoDHjsy90WeRojcqmshA&cad=rja

Link to comment
Share on other sites

  • 2 weeks later...

My first update in a while - finally had the hearing today for an order for sale.

The LL didn't show up and didn't deign to respond to the notices (by post and email) that we were applying for an order for sale. The order was granted and the defendants have been given 28 days from today to either pay the amount owed (including the additional costs of obtaining the order) or to deliver possession of the property to us also from 28 days from today. For those interested the order is of the form of Appendix A here: (long link)

Impressive. Please keep us informed.

What does "deliver possession of the property to us" actually mean?

Link to comment
Share on other sites

My first update in a while - finally had the hearing today for an order for sale.

The LL didn't show up and didn't deign to respond to the notices (by post and email) that we were applying for an order for sale. The order was granted and the defendants have been given 28 days from today to either pay the amount owed (including the additional costs of obtaining the order) or to deliver possession of the property to us also from 28 days from today. For those interested the order is of the form of Appendix A here: (long link)

http://www.google.com/url?sa=t&source=web&cd=1&ved=0CBwQFjAA&url=http%3A%2F%2Fwww.justice.gov.uk%2Fguidance%2Fcourts-and-tribunals%2Fcourts%2Fprocedure-rules%2Fcivil%2Fpdf%2Fpractice_directions%2Fpd_part73.pdf&rct=j&q=order%20for%20sale%20appendix%20a&ei=zeUJTrK_BcOKhQf9vJnYDw&usg=AFQjCNHI_0hhT4bm_xqL_H83QZkBsw84JQ&sig2=80aoDHjsy90WeRojcqmshA&cad=rja

Wow, I wonder what on earth they must be thinking. Make sure you change the locks on your new house.

Link to comment
Share on other sites

Impressive. Please keep us informed.

What does "deliver possession of the property to us" actually mean?

As far as I understand it it means to essentially give over the property willingly, the court invests in us a power to go in a change locks etc if it's not turned over, essentially gaining control of the property. I don't know who's responsibility it is to update the land registry (if it needs doing).

As all costs of sale are discharged before the mortgage etc (nice wording by the courts there) there is little risk to ourselves. If they don't pay up we'll be appointing a solicitor to handle the whole thing and hopefully just have to wait until it's sorted. Fingers crossed they'll just pay up though

Link to comment
Share on other sites

As far as I understand it it means to essentially give over the property willingly, the court invests in us a power to go in a change locks etc if it's not turned over, essentially gaining control of the property. I don't know who's responsibility it is to update the land registry (if it needs doing).

As all costs of sale are discharged before the mortgage etc (nice wording by the courts there) there is little risk to ourselves. If they don't pay up we'll be appointing a solicitor to handle the whole thing and hopefully just have to wait until it's sorted. Fingers crossed they'll just pay up though

So if i understand, you started off with them trying to get £700 out of your deposit which you correctly challenged and you have ended up with their house

If thats the case then BRAVO, they should put this all over the news, scare a few of the accidental and BTL landlords into realising the party is over

When the party and your new free house :lol:

Link to comment
Share on other sites

So if i understand, you started off with them trying to get £700 out of your deposit which you correctly challenged and you have ended up with their house

If thats the case then BRAVO, they should put this all over the news, scare a few of the accidental and BTL landlords into realising the party is over

When the party and your new free house :lol:

That pretty much sums it up. No party in the new house as we are under an obligation to sell it (to discharge their mortgage for one) but it seems fitting to save the money towards a house of my own ;)

Link to comment
Share on other sites

As far as I understand it it means to essentially give over the property willingly, the court invests in us a power to go in a change locks etc if it's not turned over, essentially gaining control of the property. I don't know who's responsibility it is to update the land registry (if it needs doing).

You misunderstand.

Giving you an "equitable charge on the property" does not mean that you own it.

You are just being given the right to sell, take what you are owed and return the rest (after selling costs) to the "real" owner. Should you choose not to sell it immediatley it still belongs to the real owner (for his occupation etc)

tim

Link to comment
Share on other sites

You misunderstand.

Giving you an "equitable charge on the property" does not mean that you own it.

You are just being given the right to sell, take what you are owed and return the rest (after selling costs) to the "real" owner. Should you choose not to sell it immediatley it still belongs to the real owner (for his occupation etc)

tim

I understand the equitable charge on the property. The reason for my confusion was down to the fact that (from my research) we are authorised to change locks etc to gain possession of the property if it's not turned over by the defendants - otherwise if they are uncooperative it would not be possible to enforce the order of sale effectively. In particular the order reads:

To enable the claimant to carry out the sale, there be created and vested in the claimant pursuant to section 90 of the Law of Property Act 1925 a legal term in the property of 3000 years

As to the exact powers this legal term grants us at the moment I don't know. I'm hoping it won't come to that and, if it does, by that point a solicitor will be able to confirm it for me :)

Link to comment
Share on other sites

Presumably you can fairly charge for you time spent selling it, plus any additional expenses you can reasonably prove, and charge that against the property proceeds as well?

Would be interested to know how long you are given to sell, and how pricing it determined.

You certainly are in space monkey territory here! Great read.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
 Share

  • Recently Browsing   0 members

    No registered users viewing this page.





×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.