Here is a question to the blog clinic (fast track) from Marten who is a landlord
Hi, I’m a resident landlord I use an agreement. I was taken to court for 3 times the deposit! It’s malice from the former tenant.
He won by default judgment and was awarded £6500! He put a charge on my property instantly and it’s now on the final charge he’s FORCING SALE “!
I’ve battled this in court for 3 years as the court kept losing my defence! I spent over 17k in fees etc all the court wanted to know was – did I hand in the defence! Not if the claim he was making was bogus and completely without merit …
I’ve still got his original signed contract stating he knew I was a resident landlord! The court would not look at it.!
I’m currently going to court to defend the sale of my home with his forced sale. The debt I owe now is only 4K down from 8k as I had to pay his court fees! I made a payment plan for 250 a month threw the court yet he’s still going to court for forced sale!
My home is worth 2 million
I’m at my wit’s end I’m exhausted the injustice is insurmountable please help it’s like something you watch on the movies. This is unjust and fraud by false representation to gain money by deception through the DPS government-backed deposit scheme.
I’m at a complete loss of what to do. I’m not cash rich I’m a normal person. The DPS would not even write anything down for me to show the court I even asked them to come view my home to see I live here!
Surely what this tenant is doing is a crime?
Please help me
Answer
This is a strange and bizarre story.
The Judgement
For a start – if you really are a resident landlord, you are not bound by the deposit scheme rules.
Section 212(1) of the Housing Act 2004, which is the act which set up the deposit scheme, specifically states that the scheme is “in connection with shorthold tenancies” and section 212(8) states that
“shorthold tenancy” means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of the Housing Act 1988 (c. 50);
Chapter 2 of Part 1 in case you were wondering is here.
Then section 10 of the first schedule to the Housing Act 1988 (the schedule which tells us which tenancy types cannot be assured or assured shorthold tenancies) is the section covers resident landlords.
Basically, it says that it is where
- the landlord and the tenant live in the same building, then
- so long as that building is not a ‘purpose built block of flats’ and
- so long as the landlord occupied his part of it, as his only or principal home,
- Both at the time the tenancy was granted, and
- Ever since.
Then that tenancy cannot be an assured or an assured shorthold tenancy.
If this really was a resident landlord situation then this judgment was clearly wrong and (subject to what I say below) you should be able to get it set aside.
My advice to you would be to go to a decent firm of solicitors who have people who specialise in housing work (I would recommend Anthony Gold) and follow their advice.
If you have a property which is worth 2 million, then even if you are not ‘cash rich’, you should be able to raise sufficient funds to instruct solicitors to take action to protect your property.
Although they are not perfect, courts are all about justice and Judges like to see justice done.
However, I understand that they are also increasingly strict about producing documents on time. It sounds to me as if this may be one of the problems with your case. I am afraid you do have to comply with the court rules and if you fail to do so you may indeed lose your chance to present your case.
So far as the court losing documents is concerned, this does sometimes happen. One way around this is to hand deliver them to the court office yourself and get a receipt (making sure that the receipt lists the documents delivered so there can be no mistake). Or perhaps, if this is impossible, send them by recorded delivery.
It is also really important that all documents filed, cite the case claim number or it may never get on the relevant court file. If you did not do this it could be why the documents got lost.
Courts are busy places and are also underfunded and short staffed. To succeed in a claim you need to take this into account and work with the court by following their rules. If you fail to do this, then it is entirely possible that a judgment which is ‘wrong’ will be allowed to stand.
Procedures are very important in litigation and if you fail to comply with them you will have contributed to and may indeed actually be the author of your own misfortune.
Enforcement of the Judgment
Once a judgment is there, all the various enforcement procedures are available to the Judgement Creditor if the debt is not paid.
I have to say that (from the point of view of the Judgment Creditor) most of the procedures are pretty useless. But if the Judgement Debtor has a valuable property – obtaining a charge and then forcing a sale is one thing which can be done.
I personally do not have any experience in claims for an order for sale although I have obtained a few charging orders in my time.
Applying for an order for sale is a fairly hostile action so I would expect the court to allow you to offer an instalment plan and to delay any sale while payments are being made. Particularly if the value of the Judgment debt is small compared to the value of the property to be sold.
If it is too late to get the judgment itself set aside, then I would suggest that you try this approach. Again, you will probably do better if you have an experienced solicitor acting for you in the proceedings.
In conclusion
It is not a crime to use the courts to obtain a judgment and then enforce that judgment via a charging order and order for sale. Even if that judgment was in point of fact an unfair one.
From what you have said it does sound as if justice has not been done. However, reading between the lines it sounds as if you may have contributed to this by failing to produce documents on time and failing to comply with the various procedural rules. Which are important.
I see also that the original judgment was a default one, which indicates that you did not deal with the original court application. Which will have put you at a disadvantage as you need to get this set aside before you can proceed to a defended trial.
There is clearly more to this case than you have set out in your question – for example, you have not explained your reference to “deception through the DPS”. If you did not protect the deposit (as you do not have to if the tenancy is not an AST), where do they come into it?
The best you can do is instruct a good firm of solicitors to advise and represent you in these proceedings. However I am afraid that this will not be cheap, and you will probably be asked for a fairly chunky payment on account before they will agree to act for you.
If you want to get any further advice you can use our telephone advice service and I will forward this on to Anthony Gold so one of their solicitors can advise you. This is not something I personally could help you with as I no longer take on casework.