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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I am going to court to evict a tenant. He is going to be represented

Resolved Question:

I am going to court to evict a tenant. He is going to be represented by a solicitor from Citizens Advice Bureau, so I need a bit of firepower.
He has been served a Section 21 notice and I believe that all the paperwork is in order. The tenant has not put up any defence but insists on going to court. 30 minutes is set aside for the hearing.

The tenant has been without hot water and heating from December to May. He claims there has been problems with toilet and that he has not been able to use it. The first time I hear about this is June 13 and it is repaired two days after. The tenant a week later claims there is still problems. Since June 15th I have tried to get access with or without a plumber. The council (health and safety) have tried to get access but was refused this even with a policeman present.

The tenant is £5,000 in arrears on a monthly rent of £525 for a one bedroom flat.
My questions are:
1) This is a Section 21 eviction. I expect to be granted access. However the tenants wants compensation for the two issues above. Can he as part of the Section 21 eviction hearing claim for compensation (and without putting this is in writing before the court case. Mind you he is represented by a solicitor, I am not) ?
2) If he can claim compensation then I would like to have case references to cases where the tenant has been without heating and hot water. So that I can calculate a reasonable compensation.
3) If he can claim compensation then I would like to have case references to cases where the tenant has been without a proper working toilet (there is only one toilet in the flat). The complication here is that he repeatedly has refused me access and I (and my plumbers) have attempted many times. Again I would like to calculate a reasonable compensation.
4) If the tenant is entitled to compensation then can the compensation be deducted from his huge debt of rent arrears ? There is a court ruling about them and he has a CCJ regarding the debt.
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Has the tenant lodged a counter claim please?
Customer:

No. The only reason I know about the counter claim is that the CAB solicitor mentioned it at the previous hearing and that they had suggested to me that they will not make one provided I cancel the tenants debt, which seems totally out of proportion (it is about £5,000). I have asked them to provide references to court cases but they have not done so.

Alex Watts :

So is he defending on the basis of these problems or actually lodging a counter claim?

Alex Watts :

Is the hearing listed a first hearing please?

Customer:

I am not sure that you can defend the section 21 (provided all the paperwork is in order). Can you ?
He and CAB have only verbally told me about the counter claim and the idea that they want me to pay an amount equal to the tenants debt in compensation.

Customer:

The hearing must be the first as the first time when we met the paperwork was not in order and the judge said that a new date would have to be set up. If there is a special meaning to the word "first hearing" then please help me here.
On the first occasion I spent ½ hour with the estate agent discussing with the solicitor from CAB. We did not really discuss the counter claim. The case was dismissed because of the wrong AST was submitted but the judge did ask about the size of the counter claim and the tenant asked for the maximum amount that he could get. The CAB solicitor did not really go into the claim.

Customer:

I have been discussing the matter with CAB but that is with a different person from the one I met the first time.
The tenant is suffering from some kind of mental illness as well as his physical handicap, which makes everything much worse. The tenant believes that everyone is out to pursue him. The worst persons are the council and the estate agent who have done all sorts of things to him. He is convinced that he is entitled to a large (VERY LARGE) compensation.
To sum up:
It is the first hearing and the tenant have verbally told me he demands compensation but I have not had this in writing or as part of the defense he should have given me last year (court case is 4/2).

Alex Watts :

I assume it is because of arrears.

Alex Watts :

In that case a Judge cant set aside a Section 21 notice

Alex Watts :

Once it has been served it is valid notice

Alex Watts :

If it is on the basis of rent arrears the Judge has a discretion to make an Order for possession.

Alex Watts :

The Judge can order outright possession, a suspended order (that is the tenant will pay £x a week), or dismiss it

Alex Watts :

However if there is no counter claim served by the Court then there is NO counter claim

Alex Watts :

Only if the tenant serves a counter claim would you have to defend that

Alex Watts :

All a Judge is going to be concerned about at the hearing, is it reasonable to make a possession Order

Alex Watts :

If the tenant is more than 8 weeks in arrears or has made continual late payments then a Judge can make an Order

Alex Watts :

I am sure it is a term of the tenancy agreement not to deduct or set off any rent

Alex Watts :

Therefore the tenant has no excuse whatsoever in terms of any purported claim against you

Alex Watts :

Do not worry about the counter claim -it is not live and many CAB people are not lawyers

Alex Watts :

If you get Judgment you can ask for a CCJ on arrears too so that can be enforced.

Alex Watts :

But in any event the tenant must prove about the problems

Alex Watts :

I am sure you have evidence to the contrary

Alex Watts :

Therefore you need not be concerned. The tenant must serve on you a counter claim and schedule of damage

Alex Watts :

But if there are £5000 in arrears this is high and a Judge is likely to grant possession

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

HI Alex,

Customer:

what do you mean by "-it is not live" ?

Customer:

I already have a CCJ against him. He continues to not pay his top up.
When you say that the tenant must serve on me a counter claim then you mean that he must do that a part of a separate court case ?

Alex Watts : Do you already have a possession order?
Alex Watts : i am just on the train so may be on and offline
Customer:

No, that is what I am going to court to get.

Alex Watts : So how have you already got a CCJ please?
Customer:

I used the MCOL online to get that.

Customer:

I am only asking the judge to grant me possession. Nothing else.

Alex Watts : Ok. Then he should have filed a counter claim,
Alex Watts : The judge is only going to be concerned are there arrears?
Alex Watts : If no defence or counter claim has been filed then he can not rely on that
Customer:

Yes I believe so. When he haven't filed a counter claim, does that mean he is prevented from bringing it up in the court ?

Alex Watts : Yes
Alex Watts : Can I clarify anything?
Customer:

OK. Good!
Go ahead

Alex Watts : I am asking if you need clarification on anything I have said
Customer:

Yes, sorry. I was a bit quick with my reply.

Alex Watts : ok
Customer:

I don't understand why the CAB haven't made a counter claim and are "threatening" me on the phone that they will do it. They should know better.

Customer:

What do I say if CAB/the tenant brings it up ?

Alex Watts : You can say to the judge no counter claim has been filed.
Alex Watts : Therefore it should not be considered.
Alex Watts : The arrears are there. That is what the judge should consider
Alex Watts : Does that help?
Customer:

Yes Thank you.

Alex Watts : If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/
Alex Watts :

Please remember to leave feedback before you go today

Customer:

Good morning,

Customer:

I am sorry I have not gotten back before now.
I will tell you what happened in court later.

Customer:

Also do you know of any cases about compensation claim for:

Customer:

  1. The tenant being without hot water and heating

Customer:

2. Being without a proper working toilet (maybe with the twist that the tenants refuses access)

Customer:

I would like to how the case references (or preferable a printout of them)

Customer:

I will rate you (positively) after the court case later today.

Alex Watts : 1. Section 11 of the Landlord and Tenant Act 1985 requires a landlord to provide hot water and heating. If not it is breach of on tract it which the tenant can claim.
Alex Watts : 2. See above it is the same section.
Alex Watts : I can't give you cases as this is beyond this site which is for question and answers. But there are free services such ad
Alex Watts : as
Alex Watts : http://www.bailii.org/
Alex Watts : http://www.landlordzone.co.uk/content/case-law
Alex Watts : Can I clarify anything for you about this today please ?
Customer:

Thank you.

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.


Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.


 


Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Customer:

Good morning Alex,
This is what happened. The tenant was told that he had not followed procedure and filed a counter claim/defense and would not be allowed to do so on the day. However my incompetent estate agent had not filed and served the papers to all parties but just sent three copies to the court for them to distribute (which at least have been the standard procedure).
The tenant raised the question whether he had paid a deposit or not. He had a receipt containing a large amount which he claimed was a deposit. This was however related to a previous tenancy (but with the same landlord and in the same property). He also wanted compensation, as I explained.

Customer:

The judge then ruled that due to procedure faults on both side the tenant was allowed to file and serve a defense within 14 days and we go to court again 28/2 :-(
It was unclear whether he could serve a compensation claim at next hearing. We will have to see the order on paper. If the estate agent had done as instructed by the order I would have gotten my flat back!

Customer:

Thank you for all your help. Alex. It is much appreciated.

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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