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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 30014
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Our ex landlord has sent us a small claims notice for

Customer Question

Hi there,Our ex landlord has sent us a small claims notice for damages incurred during our tenancy period. We'd like to understand how to respond to this.Thanks,
Aditi
Submitted: 17 days ago.
Category: Property Law
Customer: replied 17 days ago.
For more context, our deposit was protected with a company called "mydeposits". When the landlord didn't return the deposit, we raised a dispute along with all evidence to get our deposit back. The amount is GBP 2350. The landlord declined mediation through mydeposit and said they would send us a small claims notice. After 6 months of having moved out, we have received a letter from the landlord.
Customer: replied 17 days ago.
Further, the landlord has never been in touch with us directly - another lady has operated on behalf of him all the while. Her name is ***** ***** anywhere on the contract.
Customer: replied 17 days ago.
Also, in the letter, she/ they have not explicitly mentioned any details of the claims itself - they have just asked us to download a wetransfer file which she sent via mail (we have not opened it) as we'd like to understand how to move ahead on this before doing so.
Expert:  Joshua replied 17 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I am very sorry to read of the above and I imagine how frustrating it must be. I will certainly try to clarify the position for you.

  1. May I ask the date of the claims noticed you have received please?
  2. Do you know of the landlord carried out a professional inventory at the start of the tenancy and a further inventory upon check out?
  3. I assume you dispute the damage that the landlord ledgers you have caused?
Customer: replied 17 days ago.
1. The claims notice by letter was sent to us with a date of 2 Nov but we have only seen it yesterday. To clarify, the letter does not contain any details of the disputed amount or any other details. It just refers us to download a file from mails that have been sent. We have not opened those mails or downloaded the contents as we wanted to know how to proceed.
2. Yes, professional inventory check was done before check in and after checkout. There was a day between when we moved out and the inventory clerk came in. The landlord lived on the same premises and there were some things that didn't look right (e.g. the bath tub full of water).
3. Yes, we dispute the damages that the landlord might be seeking. They are attempting to refurb their full bathroom and putting the blame on us for it. However, as per the inventory clerks report, several issues with the bathroom were covered up with paint. The other issues relate to rusting of fittings and therefore the landlord blaming us for having to change everything. However, rusting of fittings etc happens when the quality of the fittings are low and not because of usage.In addition to the claims the landlord is making, we too have claims - the boiler was not working for 45 days (so we had no water to bathe in in London winter!). The bed was broken with no fix in place for more than 30 days causing us to sleep on a floor. We'd like to claim for these.
Expert:  Joshua replied 17 days ago.

thank you. May I confirm if the claims notice you refer to has been issued by a court order to letter from the landlord indicating he intends to make a claim? if you happen to have the document available, it might be helpful to upload it using the " add file" button though this is not required.

Customer: replied 17 days ago.
File attached (7PQ5MQ2)
Expert:  Joshua replied 17 days ago.

thank you. This is not a court claim but merely a letter before action. They appear to be referring to some files which I assume they believe evidence their claim. Have you received these and been able to view them?

Customer: replied 17 days ago.
they have mailed them but we have not viewed them - we assumed they would send them by post as well
Customer: replied 17 days ago.
but we understand until we haven't formally received these, they can't take action - don't know if that's right
Expert:  Joshua replied 17 days ago.

In the small claims court there is no requirement to formally serve documents upon you before issuing proceedings and therefore I would not recommend this stance as a beneficial strategy. There are able to issue proceedings against you at any time, and you them for the return of the deposit and accordingly, it is sensible to look at any evidence they have in order that you can constructively comment upon it and see if you can reach a settlement without the need for litigation.

If you cannot, then one of you will at some point need to issue proceedings against the other to bring the matter to a conclusion. from what they say, they appear to be motivated to issue proceedings against you and therefore if you are not able to reach settlement, you could need them to do this but alternatively, you could issue proceedings yourself for the recovery of the deposit and any time they should first send the landlord a letter before action just as they have done to you:

https://www.gov.uk/make-money-claim

Customer: replied 17 days ago.
got it, thanksunlikely we can reach a settlement as both the landlord and us as ex tenants are firm on our ground.with regards ***** ***** step based on this letter that they have sent, are we required to reply to it? what happens if we don't reply?
Expert:  Joshua replied 17 days ago.

it would be sensible to reply because the courts like to see evidence that individuals have attempted to reach settlement rather than litigate. If one party can show that another refuse to engage, the court has the option to draw adverse inferences from that when it comes to awarding costs though it must be said that such sanctions are generally applied sparingly in the Small Claims Court.

The burden of proof is upon the landlord to prove any damage was caused by you and that the damage in question does not amount to wear and tear. It is important to remember this and that you only required to respond to an allegation of damage in terms of proving you did not cause the damage if the landlord has discharged this initial burden of proof. For example, it is not enough for a landlord to simply say you damaged that tap; rather, the landlord has to produce evidence to show that you damage the tap and only then, is it necessary for you to produce evidence that you did not.

Accordingly, once you have viewed the files in the evidence if any that the landlord has, if you do not consider that the landlord has produced any evidence to show damage has been caused by you then you can simply respond that the landlord has not adduced evidence in this respect and putting the landlord to strict proof on the point. To the extent that they have produced evidence but you disagree with it, then you would need to respond to that evidence in terms of why you believe it does not show that you damaged it or alternatively, evidence you have that you did not damage the item - which presumably would either be that the damage was already there when you moved in, or that it amounts to wear and tear and not damage

Expert:  Joshua replied 17 days ago.

I hope the above is of some assistance but if you have any further questions, please revert to me.

Customer: replied 16 days ago.
thanks very much Joshua - this is very helpful to know. We will take the necessary steps now as advised by you.
Customer: replied 16 days ago.
One clarification I have is whether this person who has being mailing on behalf of the landlord is authorised to do so and whether her mails/ letters stand valid. Just to be clear, she is not an estate agent (they removed the estate agent from the equation one year after the tenancy). And on the contract there is no mention of her.I ask as as soon as we vacated the home, although I wasn't the lead tenant (my husband was), she asked me to stop all communication with her. She said she would only mail and communicate with the lead tenant. All correspondence thereafter has been with him. If the grounds for who you communicate with are so strong, does it necessitate that on the landlord's side as well, communication to be valid needs to come from him directly?
Customer: replied 16 days ago.
also, with regards ***** ***** to this letter, countering or disputing the claims, do help with how much detail we need to go into while responding to her? I ask as we've gone through this process once already with the deposit security company (mydeposit) where my husband and I spent weeks putting together all evidence and documentation to get our deposit back. Looks like we will now have to do it again - but this time, we'd much rather just do it in court instead of send everything to the owner as a counter response?
Expert:  Joshua replied 16 days ago.

anyone can act as an agent to somebody else in terms of correspondence. However, unless the individual is a solicitor which there is no evidence that they are, they will not be able to act in proceedings on behalf of the landlord. the landlord will either have to act personally in respect of proceedings or appoint a solicitor as a Non licensed individual does not have rights of audience before a court. you can certainly ask who the individual is and what authority they have to act on behalf of the landlord however before providing any potentially sensitive information to them asking for a copy of the landlord's signed authority in this respect

if you have already spent time disputing the claims that have been made through an abortive dispute resolution process, it seems to me you are likely to be able to use most of this work again without repeating it wholesale there because you may need to tailor it to any changes the landlord has made in respect of its claims

Customer: replied 16 days ago.
in this case, while we know who she is as she's been the point of contact all through, we don't know what the relationship is. To that extent, are we to respond to her mails/ letters and dispute the claim via her or should we request for the landlord's signed authority to do even that?
Expert:  Joshua replied 16 days ago.

I should not spend too much energy on this component but it seems reasonable to ask for her authority to act on behalf of the landlord before you disclose information to her. However, if you know who she is, you may be content to rely on a confirmation that she acts on behalf of the landlord which seems fairly obvious from the correspondence.

Expert:  Joshua replied 15 days ago.

I trust the above was of assistance and that you do not have any follow up questions for now. If there is anything else I can help with please reply back to me though.

Customer: replied 14 days ago.
Hi Joshua– we tried to access the landlord's wetransfer files yesterday (the link mentioned in her claims notice email) but the link had expired. When we emailed her saying as such, she replied saying "You must be joking. The files were sent over 10 days back. See you in the county court"Are we obligated to respond to that at all -- since the time given was until today (21 november)? If yes, what's an appropriate response to something like this?(ps. Your guidance has been extremely helpful. Thank you so much for helping!)
Expert:  Joshua replied 14 days ago.

If you cannot access the files then you cannot. Consider taking a screenshot of the above though the court is unlikely to be very interested in the pre claim correspondence. I do think there is a particular need to respond to the last communication if those ere its terms

Customer: replied 13 days ago.
thanks Joshua, just to confirm, in the last sentence "I do think there is a particular need to respond to the last communication if those ere its terms", you meant "I don't think... "
Expert:  Joshua replied 13 days ago.

For the avoidance of doubt as you thought, this sentence should read "I don't think there is any particular need to respond to the last communication if those are its terms".

Expert:  Joshua replied 12 days ago.

Thank you again for visiting JustAnswer and see you again in the future I hope.