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Ash, Solicitor
Category: Law
Satisfied Customers: 10914
Experience:  Solicitor with 5+ years experience
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I have a buy to let property under Receivership by the lender.

Resolved Question:

I have a buy to let property under Receivership by the lender. It was managed for a year up to when the tenants vacated in February 2016 by their agent the LPA. I had no input in the management at all in that period. The tenants vacated leaving the house with damages estimated at about £6000. I will now refer to them as former tenants.
The LPA allowed me to carry out the repairs as I insisted I would do it at a lower cost than they. I have presented the former tenants with the quote for the works asking them to either pay me the money upfront or make their own arrangements to carry out the repairs themselves. They have not responded in over a month.
I have prepared a money claim suit against them in the county court.
But here's the problem, the LPA wants to take over the repair of the property as I am not making progress with it. They believe I should carry out the repairs and then present the bill to the former tenant. My position is that doing that would destroy the evidence of the damages without the former tenants admitting the liability for the damages. Hence they will almost certainly deny liability for the cost of repairs. The omission was in the LPA accepting the keys from the them without carrying out a tenant attended checkout inspection. Instead they carried out an inspection a week after the tenant vacated and without the tenant present.
I intend to add to the money claim I have prepared against the tenant an application asking the court to rule that the tenant is liable for the damages and the cost of the repairs and give an interim order that no repairs be carried out in the property until either the tenant and I settle on the liability or the court makes a ruling on the liability.
How do I make such an application along with the money claim application.
Submitted: 6 months ago.
Category: Law
Expert:  Ash replied 6 months ago.
Hello my name is ***** ***** I will help you with this.Do you currently have a claim in progress or yet to issue it please?ALex
Customer: replied 6 months ago.

I am yet to issue.

Customer: replied 6 months ago.

I am yet to issue a claim as I am waiting to first receive this advise .

Expert:  Ash replied 6 months ago.
What you need to do is make a money claim then apply for an interim injunction against the Receiver pending determination of liability.So you will also need to bring the Receiver into the claim. As you know its form N1 but you will also need to complete form N16a as well. will enable the court to consider and deal with that aspect of the claim.But yes you can do this. Can I clarify anything for you about this today please?Alex
Customer: replied 6 months ago.

Thank you Alex.

Just some clarification on the form:

(1)Which of these three boxes apply:

(A)"By application in pending proceedings"

(B) "Under statutory Provisions"

(C) "This application is made under Part 8 of the Civil Procedure Rules"

(2) Is this the correct presentation for the entry in paragraph 3 of the form:

"not remove the evidence of the damage done to the property at***** Edmonton, N9 8QS, or carry out any works what so ever on the property pending the determination of liability for the damages and applicable remedial cost. "

(3) And paragraph 4:

"must grant full access to the Claimant Mr Obi or his agents or representatives, to the property for any purposes relating to the provision and preservation of evidence for this claim or other matters in connection with this claim. "

(4) Is it a human right issue that I am entitled to determine the liability for damage done to my property which otherwise I shall pay for the remedy. If so, then should I tick the Human Rights box?

(5) Do I submit both forms together with the respective fees?

Expert:  Ash replied 6 months ago.
1) Pending Proceedings2) Yes that is fine3) Yes.4) No, not human rights issue5) Yes submit both forms.Does that clarify?Alex
Customer: replied 6 months ago.

Thank you Alex.

There is another matter that I need your advice on which I wish to discuss on this thread.

I have another buy to let property (not the property involved in the damage liability matter). I moved in to live in this property so that my now 8 year old child could qualify for a place in the special needs school in that borough. She has since been admitted into the school because we now qualify by virtue of residing in the borough.

My lenders have said that by residing in the property I am in breach of the buy to let mortgage terms. They have offered me to accept a voluntary suspended possession order in exchange for them to give me up to 31 December 2016 to remedy the situation. The remedy would be to remortgage the property, and I believe there would be the option to return the property to rental. The option of selling it is not on the cards for me. They say that if I don't accept a voluntary possession order they would continue the court possession claim which they have commenced already.

My questions are:

(1) Does the fact that the execution of a voluntary suspended possession order is suspended for a period of time make any difference to the fact that if entered into, it constitutes a court order exactly as does an involuntary outright court possession order made following a hearing?

(2) I ask this because my lender is expecting me to remortgage the property as an option of remedy whilst offering me this voluntary suspended possession order. However as far as I see, a possession order in one’s records is a major impediment to obtaining any credit at all especially mortgages.

(2.1.) If I enter into the voluntary suspended possession order, does it not appear in the public records such as the court records (like county court debt judgments do) and in credit files (Experian etc)?

(2.2.) If it does not appear in those public records, is that because it is a suspended order which would only go into the public records (and also become executable) if the conditions of the suspension is not met? That is to say so long as I meet the suspended order terms, the order will not feature in public court judgement records, credit files etc hence I shall suffer no such damage as in the case of an outright possession order. Therefore it would be accurate to answer 'No' to a mortgage application question "Have you had a possession order made against you" at any time after the order I made except of course if I fail to meet them terms of the suspension and until that stage.

(2.3.) If on the contrary it does appear in those public records immediately the suspended order is made, then I would be damaged because I shall from the date of the suspended order have to answer ‘yes’ to any lender’s question such as ‘have you had a possession order made against you’, which answer will hinder my ability to obtain a mortgage and other loans.

Please advice, and have I misunderstood the concept of voluntary suspended possession order?

Expert:  Ash replied 6 months ago.
Sadly this is a new question which you need to ask a separate thread. You can ask for me though and I can assist.If I could invite you to rate my answer before you go today please, otherwise the site does not credit me for the time spent with you today. Thanks and good luck. Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10914
Experience: Solicitor with 5+ years experience
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