UK Landlord Forum / Life

There were 5 consecutive agreements:

First AST 11.12.17 to 10.06.18 (6 months)
Second AST 11.06.18 to 10.09.18 (3 months)
Third AST 11.09.18 to 10.03.19 (6 months)
Fourth AST 11.03.19 to 10.07.19 (4 months)
Fifth AST 11.07.19 to 16.11.19 (4 months)

Deposit £425.

Solicitor claimed 5 tenancies x 3 max claim £6375

He made subsequent offers for acceptance of £5500 including costs.

Last offer from him is £1700
This is 4x the deposit value of £425 based on 1x for each breach of the tenancies existing from September
2018.

I have no paoperwork to prove or disprove protection of the original deposit.
The claimant confirms I returned the deposit.

I have just sent my witness statement - awating disposal hearing date.

I believe the first agreement is time barred but don't know if that affects the others.

I never received letter of claim - i have asked the solicitor who admits he has no proof of sending a letter to me. He says he sent an email of it aswell using an email 5 years old - I did not receive - i do not use it.

I offered 2 x deposit on receiving the part 8 claim.
That was refused.

I have disputed the legaility of the last agreement as well in my witness statement because i was ill in hospital on the date of it.

I have asked for other ways of proving this existed like bank staement showing the payments but the solicitor has not done this.
Instead he has creted a 2nd witmess statement saying the client says it was pished under the door for him to sign.

I understand the law could punish for the 5 x 3 or 4 x3 - if I am lucky maybe 4 x 1 , 3 x 1 or 2 x 1 because I already returned the deposit , I was very ill during the dates of the 5th agreement ( I HAVE NHS LETTERS TO PROVE ) illness, there were no other problems, I was just a one person landlord.

I am not asking for advice on this because I have gone down that black hole already but asking if these facts can affect the outcome  :

1. The fact the solicitor does not have proof of sending the letter of claim. I have disputed receiving this and the 2 emails from the start. It is free to get a proof of sending from the pot office.
I have said in my witness statement that this caused immediate court costs without any chance of reply for me.

2. Me querying the valididty of the 5th agreement. I have asked for another way of proving this existed with bank statements and clealy they do not have otherwise they would have said in their 2nd witness statement.
Can i confidently dispute this agreement. The have a photocopy of the agreement which is in essense a duplicate of the other agreements but as i said i was in hospital on the date of this agreement.

Thanks in anticipation

This is just an opinion, courts are not predictable.

If you can't prove the deposit was protected, you'll lose. Depending on when the claim was first made, the first one could be time barred.
Courts have not a definitive precedent for whether a deposit with several tenancy agreement is several breaches or the same one repeated. But I'd expect the court to want to get at penalty for one at very least.

The main problem is that if you lose (which I think you will) you'll have the costs awarded against you, although the lack of a claim letter is a very good point. The solicitor not being able to show a claim letter was sent might even be enough to get the whole thing chucked out - if it was a small claim its flexible enough, but a procedural breach in this kind of case can be fatal. Focus on that.

You might have to explain why there are so many short tenancy agreements, that's really unusual.

Thanks for the reply.
I made an offer of 2 x deposit at the start.

Could the fact I dispute the last agreement because date of it I was in hospital and he can't show payments as proof as I have requested mean this agreement could be dismissed if that makes sense.

Yes it could. The court will use a balance of probability (who they believe more) judgement.

Quote from: ranger0508! on July 17, 2024, 05:15:22 PMI have no paoperwork to prove or disprove protection of the original deposit.

That's really just double-speak for - I didn't protect the Deposit - you're just putting the onus for the proof on the other party. You know what happened, we know what happened. The ex-(I assume)-Tenant has no paperwork either, because it never existed, so how could they? 

Face it - you're just a bad Landlord skirting around the edges of the profession and taking chances where you think you can. Full of excuses as you wriggle and wriggle.

It's also a slightly mad assertion. Because the deposit protection schemes were launched in the 21st century they're all only available online. The idea that there's "paperwork" that might prove a deposit was protected but its missing simply isn't going to work.

I raised the possibility once that the deposit might have been protected through an agent who's now gone out of business with a solicitor once, and they didn't laugh at me, but it was touch and go.

Quote from: ranger0508! on July 17, 2024, 05:15:22 PMThere were 5 consecutive agreements:

First AST 11.12.17 to 10.06.18 (6 months)
Second AST 11.06.18 to 10.09.18 (3 months)
Third AST 11.09.18 to 10.03.19 (6 months)
Fourth AST 11.03.19 to 10.07.19 (4 months)
Fifth AST 11.07.19 to 16.11.19 (4 months)

Deposit £425.

Solicitor claimed 5 tenancies x 3 max claim £6375

Quote from: ranger0508! on July 17, 2024, 05:15:22 PM2. Me querying the valididty of the 5th agreement. I have asked for another way of proving this existed with bank statements and clealy they do not have otherwise they would have said in their 2nd witness statement.
Can i confidently dispute this agreement. The have a photocopy of the agreement which is in essense a duplicate of the other agreements but as i said i was in hospital on the date of this agreement.

I'd have thought the validity of the agreement is moot. Either there was an agreement, in which case the fifth tenancy is contractual, or there wasn't, in which case it's a statutory periodic tenancy. Either way, it's another tenancy where the deposit remained unprotected.

Hi Simon,

You haven't understood what I mean. I am disputing the 5 th agreement existed. To prove it did I asked for bank statements showing payments continued after the 4 th agreement. They have not done that and just made a statement that It exists.

Surely my request is a simple one that would solve that dispute.

So I am asking have I got a genuine dispute of this and can that help.


( regards original deposit and comments from other people. Back 6 years ago I used the insured deposit scheme. Then when I was aware of them I used custodial scheme. Both have different log ins , I don't have log in for any insured scheme now. I can't prove it so I understand there is a claim which is why I have offered 2 months deposit straight away)

Even if no rent was paid, unless the tenant had moved out before 10/07/19 there would still be a tenancy. And if the tenancy that ended on 10/7/24 had a fixed term, it would be a new one. The onus is on you to show why there wasn't a tenancy.

The records of the custodial scheme will show that for some of the tenancies the deposit was protected.

Regards - The onus is on you to show why there wasn't a tenancy. Why is the onus on me.
The tenant is bringing a claim surely the onus is on him to prove there was 5th tenancy.

I was in hospital on the date of the agreement - surely if he cannot prove he made payments after 10/7/24 that is sufficient.

So in my case :

1. the solicitor has no proof he sent the letter of claim - he has confirmed that.
He said he sent 2 emails to an email from 6 years ago and is saying its my fault for not deleting an old email address.
On both points he can get a free proof of sending and on emails use tracking to prove the email has been opened.

I DID NOT RECEIVE ANYTHING.

2. The claim starts with an original agreement that is most likely time barred.

3. The claimant cannot give any substantial proof that the 5th agreement existed.

4. The deposit was returned.

5. Claimants latest offer is 4 x times deposit plus agreed costs.

I am not saying I can prove I protected the deposit and so offered part 36 for 2 x deposit as soon as I received the claim form part 8.

If going to court does this look a good offer that I have made taking the above points into consideration.

If the tenant was resident at the property after the 10/7/19 there was a tenancy. It seems more likely than not that there was a tenancy. You can't be asked to prove a negative, that's a commonplace, so why do you think the tenant had ceased to be in possession of the property on or before 10/7/19, when they are saying that they were still there.

1 - It is not possible to use email tracking to show whether or not an email has been read or not. A solicitor cannot rely on an email address being deleted to trigger some kind of message to advise that the address is no longer in use. Public email systems are often configured to send nothing if the email address is not recognised (to avoid helping spammers), corporate email address systems usually work differently.

2 - I am not sure that that matters. It's worth while making that argument.

3 - see above.

4 - That might mitigate the penalty. Your issue is that the legal fees for the failed negotiation and court case will dwarf the penalty, particularly if the case is being fought on a conditional fee basis. Winning 1 is very important.

5 - Presumably the court will no be aware of that until a decision has been reached.

For someone in your position, going to court is usually the worst possible outcome.

Thank you for your reply and your time , it is much appreciated.

Regard costs.

Someone in my position has no idea of the costs at any stage. So it is difficult to make a judgement on an offer to accept or gamble and go to court and hope judge sees it as 1 breach and gives minmum of 1 x deposit or 2 x deposit.
I believe if that was the case I would save an the additional cost from the time I made my offer which was immediately.

At the moment I have just made my witness statement and now awaiting a disposal hearing date I believe.

I know you have no actual idea but could you give an educated guess of what the difference in cost would be by me accepting offer now or going to court and the judge awarding 4 x the deposit.

I can't. I'll explain why it's difficult, because I think these things might affect your thinking.

The way that most deposit claims are made is by firms who specialise in them. I don't know if this is one of them or not. Typically they churn through the process on a conditional fee basis (no win no fee). While the work is done by clerks or interns (because it's basically a checklist process) they bill on an hourly basis that's quite expensive - several hundred pounds per hour. And, of course, you or a judge can't really establish how long is spent on your claim (probably much much less than it seems, given the technology available to us).

If the case goes to court and the client wins, the conditional fee firm can (will) claim a win bonus, which is how the legal system rewards law firms who take on conditional fee based clients, who otherwise would be, essentially, barred from justice because of lack of money. That bonus can be up to 100%.

If this really is a solicitor you're negotiating with, they can choose to represent themselves with a barrister in court, which is massively expensive in itself.

In your case, a significant part of your overall defence is procedural. You weren't sent the proper letters before action and have essentially found yourself in the court process when it could have been avoided (you are arguing) as a negotiated deal was possible, but, even in that, your own negotiating position was weakened by being subject to court action, rather than operating on a more level playing field. That might be enough to stop the whole claim. These claims are meant to follow a proper process and, being realistic, as a non-legal practitioner the court might give you a little bit of discretion, but a solicitor shouldn't be allowed to abuse the process.

Whether that will be decisive is not guessable. Would it affect a claim for costs. It probably should. Will it? I don't know.

You should know the costs for the process so far, because they should be part of the negotiation you say you're having. It's no point offering x times the deposit if there are other costs you don't know about that you'd also have to pay. Normally the solicitor's demands and offers would include their costs, so you'd know what you're getting into. Again, that's an odd omission and makes me a little suspicious. One of the levers available to solicitors negotiating a settlement is the steady increase in fees every time there's an offer or counter offer. It's why people settle, often, because each round of negotiation starts to cost more in fees than can be "won" in negotiation.

In this case, I don't really see how the negotiation works. If you simply agreed to pay them what they asked for (presumably 3 times 5 - maybe 4 - tenancies) how much more than that would you actually have to pay? And if you don't know, how can you possibly agree?

Some of the points you are making make sense, but how confident are you that you could present them in court against a hostile person more knowledgable than you. Some of the responses here have been a bit sharp, but it's nothing compared to someone saying it out loud next to you. So there's more than just money involved.

Regards

1. - Normally the solicitor's demands and offers would include their costs, so you'd know what you're getting into. Again, that's an odd omission and makes me a little suspicious.

This was his email - Please see attached CPR36 offer.  If accepted, you must pay my client's legal costs to be assessed if not agreed.

2. So what can I say to him about this. I do not know you see.

3. I can tell you the solictors company if you want - i am sure you would know it.

4. If i was to offer 3 x deposit ( inbetween his offer and mine - possibly if judge sees as 1 claim - this would be max claim ) but how would I word about costs?

Thanks again you have been more help than anyome i have spoken to before on this. My feeling is that i am being rail roaded but that means nothing in law I have learnt.

You're not being railroaded, and thinking that you are won't really help.

The legislation is designed to work this way. If a tenancy deposit is not protected, the tenant can seek a penalty from the landlord. The only route that they have to collect this penalty is a court claim, they're not allowed to use the small claims court (because the rules they have to follow say so explicitly) and following this claim process they have to follow the path they are following.

I think you need to get some proper legal support from a solicitor. I used to be a landlord, I have some legal experience but I can't give legal advice and I think you need some. I think you need to understand what the legal costs are you're being asked to agree to, and I think that the claimants solicitor should be telling you what they are, as they are part of what you're being asked to agree to. But I don't know if that has to happen or not.

I appreciate that but what is legal support from a solicitor going to cost. Ive was quoted £750+vat for a solicitor who wanted to see all the papers. not sure what he was going to do for that.

I didnt see that was worth it.

It's a bit like insurance, you'll never know if it's worth it or not. I can't promise that you'll end up paying £750 less than you would if you didn't get advice.

But I do think you're in the s**t, you're in a situation you don't know enough about and you need help. What you might get for your money is the confidence that what you ended up with was the best possible outcome for you given your start point.

Only you'll know if that't worth it or not.

You really don't want this to get to court. That'll probably cost you more than £750 on its own.