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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 16080
Experience:  I have been practising for 30 years.
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I filled in a PCOL for a possession claim, the tenant gave

Customer Question

Hi, I filled in a PCOL for a possession claim, the tenant gave back the key a day before the hearing. At the hearing instead of it continuing as a Possession claim it seems to have gone to the small claims court. I filled in and applied for a Money Claim thinking it was part of the possession procedure but I've just found out its a whole new claim. I don't understand why this has happened . Im now on a completely different track. I don't have an AST so I think this way may not be good for me. Is there any way this can be amended so that Im back on the original possession claim? The claim number is ***** same as it was at the application stage f the PCOL.
Submitted: 7 months ago.
Category: Law
Customer: replied 7 months ago.
Just to add I filled in a money claim form because the court sent it to me.
Expert:  F E Smith replied 7 months ago.

Good morning. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

for background - what did you rent out and why did you not have an AST?

why did you need to evict them?

Customer: replied 7 months ago.
didn't have an AST because they didn't pay the deposit then wanted a 12 month one which i refused unless they paid a deposit. I did offer them a 6 month one which they turned down
Customer: replied 7 months ago.
I rented a 2 bed flat. I have proof of the rent going into my account regularly up until 2 months before I served the notice. So I have about 8 months worth of rent going in. (they overstayed - they kept telling me next month they were leaving etc until it crept forward and then they stopped paying..
Customer: replied 7 months ago.
rent arrears
Customer: replied 7 months ago.
the section 8 notice was served correctly with rent schedule etc.
Customer: replied 7 months ago.
the thing is its been 'ordained?' by a judge for it to go to the small claims track, but I don't think it should have gone there despite them handing key in
Customer: replied 7 months ago.
Is proof of regular rent going in but no AST enough to win a small claims case?
Customer: replied 7 months ago.
Their defence is that they paid it in cash. Ive never had a penny off them in cash.
Customer: replied 7 months ago.
Expert:  F E Smith replied 7 months ago.

I don’t whether I’m missing something, but if you now have the key and have possession of the property, wide you want to continue with a possession claim?

If you are just pursuing rent, then it is Small Claims Court.

Customer: replied 7 months ago.
i Can surely Perdue a PCOL without going to small claims. I don’t have an ast.
Customer: replied 7 months ago.
Customer: replied 7 months ago.
Because otherwise I may not get my PCOL fees covered surely?
Customer: replied 7 months ago.
Can I amend it?
Customer: replied 7 months ago.
The PCOL would have paid for the whole process now I’m accruong more costs, which may not get covered by the other side.
Customer: replied 7 months ago.
Expert:  F E Smith replied 7 months ago.

It isn’t a possession claim because you have possession.

If it’s now been passed to the Small Claims Court, then you are presumably trying to recover outstanding rent and you can ask the court to award the costs of the possession proceedings up to the time you had to drop them.

I can’t see what the problem is or why you want it particularly to stay as a possession claim.

Customer: replied 7 months ago.
the costs are the problem. Why didnt it continue as a posession claim. the PCOL is two parts. posession + money claim. Instead the judge made me start a fresh money claim which costs £255 for the amendment of amount and £335 for the hearing fee because its greater than £3k
Expert:  F E Smith replied 7 months ago.

Thank you. If that is the way the judge has decided it’s going to go, then that is the way it has to go. You are correct that the possession claim is in two parts, possession and also money/unpaid rent et cetera.

You can always appeal the judges decision to be honest, I think it’s probably going to be a waste of time and it’s certainly going to be far slower than simply carrying on as you are because do remember, that if your claim is successful, you will recover the court costs

Customer: replied 7 months ago.
Ok ty
Expert:  F E Smith replied 7 months ago.

I am glad to help. Please don’t forget to use the rating service because it means that I can continue to provide affordable and timely legal advice to people with similar problems.

Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

You may need to login again to use the rating service.

Thank you.

Best wishes