Small claims help...
Discussion
Hi all,
I'll try & give as much information as possible.
-Went to view a property in a re-development of an old building, number of units converted into apartments, which had come back on the market after the previous buyer dropped out.
-Liked the property, so was asked to put a deposit down by the estate agent to secure which we duly did, was sent a reservation form (which included) saying either party could back out until the contract was received & that the reservation fee held the property for 6 weeks & that the it was in accordance with the consumer code for home builders requirement.
-We contacted a local firm (who the previous buyer was going to use), to enquire about acting for us. (We were sent terms of business, but didn't send anything back, as we wanted to wait until the valuations etc. came back).
-We already had an agreement in principal for X amount, so spoke with our lenders, who arranged a valuation, after the valuation the lender said they would not lend against it. (The first lender deemed the property unmortgageable).
-We repeated the above process with a second lender & broker, who also said the same as the first lender.
-We felt that this was becoming a red flat, so called the EA, who stated the other properties had been bought for cash & that some of them were definitely mortgaged, but hadn't completed.
-On the basis of the above & the difficulty securing a mortgage, before our 6 week expiration date, we decided to pull out of the sale, in writing & informed our EA, requesting return of the deposit within the 6 week period.
-The EA was less than helpful & said we needed to ask our solicitors, or the developers solicitors about the deposit, which we did, developer solicitors said we needed to contact the developer.
- Tried this numerous times, without success, by recorded/special delivery, but their postbox went to a storage yard, where they have multiple storage containers without letter boxes for their various businesses.
- Decided to issue small claims court for the deposit return.
- Developer sends back a rather aggressive response via the small claims site saying we're wasting the courts time, that they don't state anywhere they abide by or are part of the home buyers code of conduct & that they will sue us via counter claim for costs, damages, fees & interest if we don't drop the claim, by a certain date/time.
We've tried speaking to the conveyancer's we were going to use, however they say they don't have a 'litigation department' so we would need to engage another firm for this aspect.
They did confirm they weren't acting for us as nothing was ever sent back, but in their eyes the developer should return the deposit.
I guess my question, is has anybody ever had the same instance, or can offer any tips on how best to deal with this?
We could ultimately give up the deposit amount as it's not a life changing sum of money by any means, however, we're now of the opinion that we've not done anything wrong & just requested our money back within the reservation form T&C's & would like to fight it, but also, don't want to get rinsed for costs etc. (Even though i feel that paragraph of their letter is a bit misleading, as i thought you can't sue at small claims?).
I'll try & give as much information as possible.
-Went to view a property in a re-development of an old building, number of units converted into apartments, which had come back on the market after the previous buyer dropped out.
-Liked the property, so was asked to put a deposit down by the estate agent to secure which we duly did, was sent a reservation form (which included) saying either party could back out until the contract was received & that the reservation fee held the property for 6 weeks & that the it was in accordance with the consumer code for home builders requirement.
-We contacted a local firm (who the previous buyer was going to use), to enquire about acting for us. (We were sent terms of business, but didn't send anything back, as we wanted to wait until the valuations etc. came back).
-We already had an agreement in principal for X amount, so spoke with our lenders, who arranged a valuation, after the valuation the lender said they would not lend against it. (The first lender deemed the property unmortgageable).
-We repeated the above process with a second lender & broker, who also said the same as the first lender.
-We felt that this was becoming a red flat, so called the EA, who stated the other properties had been bought for cash & that some of them were definitely mortgaged, but hadn't completed.
-On the basis of the above & the difficulty securing a mortgage, before our 6 week expiration date, we decided to pull out of the sale, in writing & informed our EA, requesting return of the deposit within the 6 week period.
-The EA was less than helpful & said we needed to ask our solicitors, or the developers solicitors about the deposit, which we did, developer solicitors said we needed to contact the developer.
- Tried this numerous times, without success, by recorded/special delivery, but their postbox went to a storage yard, where they have multiple storage containers without letter boxes for their various businesses.
- Decided to issue small claims court for the deposit return.
- Developer sends back a rather aggressive response via the small claims site saying we're wasting the courts time, that they don't state anywhere they abide by or are part of the home buyers code of conduct & that they will sue us via counter claim for costs, damages, fees & interest if we don't drop the claim, by a certain date/time.
We've tried speaking to the conveyancer's we were going to use, however they say they don't have a 'litigation department' so we would need to engage another firm for this aspect.
They did confirm they weren't acting for us as nothing was ever sent back, but in their eyes the developer should return the deposit.
I guess my question, is has anybody ever had the same instance, or can offer any tips on how best to deal with this?
We could ultimately give up the deposit amount as it's not a life changing sum of money by any means, however, we're now of the opinion that we've not done anything wrong & just requested our money back within the reservation form T&C's & would like to fight it, but also, don't want to get rinsed for costs etc. (Even though i feel that paragraph of their letter is a bit misleading, as i thought you can't sue at small claims?).
Why would you get rinsed for costs if the T&C's state you can back out and get your deposit back? Sounds like you have a watertight case and should simply carry on to me.
I would keep emailing them asking for the deposit back and confirming that you don't wish to pursue it by legal means only to show that it is them forcing it that way. Keep all emails of course.
TX.
I would keep emailing them asking for the deposit back and confirming that you don't wish to pursue it by legal means only to show that it is them forcing it that way. Keep all emails of course.
TX.
We initially asked the EA to relay our message to the developer, which they did & said they've stated they won't return it.
We tried their solicitors, they said we needed to speak to the developer, then we tried contacting the developer, in writing, they didn't respond & that's how we ended up with the small claims.
We sent a recorded letter which never got there, so tried to hand deliver, which was when we realised the registered business address is to a storage yard, each of their businesses is registered to a storage unit (with no post box), there is a tiny post box outside the storage yard, that a neighbouring business said they use, so we posted in there.
They're rather elusive, as none of the developers appear on social media, or have any means to contact them, which raises suspicions.
We stated our 'case' when uploading our documents to the small claims portal & they put their defence in as return, however, my understanding (as my OH is doing this), is you're supposed to tick the box stating you wish to defend the case & it then goes to small claims?! This was when we got their above.
We tried their solicitors, they said we needed to speak to the developer, then we tried contacting the developer, in writing, they didn't respond & that's how we ended up with the small claims.
We sent a recorded letter which never got there, so tried to hand deliver, which was when we realised the registered business address is to a storage yard, each of their businesses is registered to a storage unit (with no post box), there is a tiny post box outside the storage yard, that a neighbouring business said they use, so we posted in there.
They're rather elusive, as none of the developers appear on social media, or have any means to contact them, which raises suspicions.
We stated our 'case' when uploading our documents to the small claims portal & they put their defence in as return, however, my understanding (as my OH is doing this), is you're supposed to tick the box stating you wish to defend the case & it then goes to small claims?! This was when we got their above.
Terminator X said:
Do you have something stating that the deposit is refundable? If so from who + what are the terms for the refund eg is it when you ask for it, after a certain time or at their (the EA or the Developer) discretion etc?
TX.
Apart from our details, the developers details & the property details, the below formed the remainder of the reservation form.TX.
At the time of entering into the Reservation agreement dated x in compliance with the Consumer Code for Home Builders’ Requirements.
This document is signed and the attachments initialled by the Home Buyer and Home Builder to confirm that this information clearly represents the nature and content of the Home being sold and supersedes any prior visual, written or verbal statements which may have been made or given.
The purpose is to ensure that the Home Buyer has a clear and fair understanding of what is being sold, and has written commitment to them by the Home Builder.
Any concern regarding the nature and content of the Home being Reserved should be raised in writing at the foot of the statement, and clarified by the Home Builder, and in any event, no later than when contracts are exchanged.
T&C's
In return for the Buyer paying the Reservation Fee, the vendor agrees to reserve the property at the purchase price until the Reservation Expiry Date.
The Buyer has the right to cancel the reservation at any time before receiving the Contract at no penalty and will receive the full Reservation Fee paid without deduction within seven days.
If the Buyer cancels the Reservation after receiving the Contract (albeit allowing for a reasonable standard contract with no onerous impositions) or does not exchange contracts by the Reservation Expiry Date then the Buyer forfeits the Reservation Fee in full.
The Reservation Fee will be deducted as part payment of the Deposit due on Exchange of Contracts.
The Buyer agrees to notify their legal advisor and the Vendor in writing prior to Exchange of Contracts, of any spoken statements, if any, they are placing material reliance upon.
The Buyer is responsible for all costs and expenses incurred by them in the purchase of the property.
The Buyer consents to this Reservation Form information to be used by the vendor to progress the purchase.
We didn't actually (nor did the solicitors who were going to act for us), ever receive the 'contract', my assumption is the contract, from their solicitors, not the reservation form?
The reservation form was from the EA & asked us to pay the monies directly to the developer.
We asked for the deposit to be returned within the 6 week period they stated.
This seems very odd unless I've misunderstood something.
Why on earth won't they give you the deposit back?
There's no mix up between who you paid and who signed the reservation form is there? It was the developer who counter-signed the reservation form, is that correct? And it was them you gave the deposit to?
Why on earth won't they give you the deposit back?
There's no mix up between who you paid and who signed the reservation form is there? It was the developer who counter-signed the reservation form, is that correct? And it was them you gave the deposit to?
Is the developer a limited company? If so and you have difficulty communicating you should do so via their registered office but in any event it looks like they've acknowledged service and so any argument they may have had about service seems moot.
I genuinely cant see what you have to lose based on the info provided. It is extremely unlikely they will be entitled to costs, or any sort of counterclaim. The court will proceed with the case, you can ask for correspondence / emails between developer and estate agent as part of the court process. Otherwise turn up in front of the judge in due course and let him decide. It won't be quick though....
I genuinely cant see what you have to lose based on the info provided. It is extremely unlikely they will be entitled to costs, or any sort of counterclaim. The court will proceed with the case, you can ask for correspondence / emails between developer and estate agent as part of the court process. Otherwise turn up in front of the judge in due course and let him decide. It won't be quick though....
We received the reservation form from the EA, with the above T&C’s on.
It also had the ltd company (developers details on, bank details, registered address etc.)
We paid directly to the developer.
Then, once we asked for the money back they ignored us, so the OH small claims courted them, with a clear concise timeline of events, all correspondence was sent to the ltd companies address (at the shipping container!)
They’re fully aware of the form as we detailed it in an email prior to the small claims when we initially requested a refund, they’re also aware of the form as we included it with our evidence to the court.
Considering they’ve re-sold the property & lost absolutely nothing as they’ve re-sold it for considerably more, I can’t see any reason to withhold it either as they’ve not actually lost anything, or cost them anything.
I just feel like they’re being bullies, as their final paragraph was worded very aggressively!
It also had the ltd company (developers details on, bank details, registered address etc.)
We paid directly to the developer.
Then, once we asked for the money back they ignored us, so the OH small claims courted them, with a clear concise timeline of events, all correspondence was sent to the ltd companies address (at the shipping container!)
They’re fully aware of the form as we detailed it in an email prior to the small claims when we initially requested a refund, they’re also aware of the form as we included it with our evidence to the court.
Considering they’ve re-sold the property & lost absolutely nothing as they’ve re-sold it for considerably more, I can’t see any reason to withhold it either as they’ve not actually lost anything, or cost them anything.
I just feel like they’re being bullies, as their final paragraph was worded very aggressively!
Carry on as you are.
They can waffle on about costs, damages, fees, interest, emotional distress, harassment, etc all they want til the cows come home - doesn’t mean a judge is going to entertain it. They would have to particularise their claim (in a counterclaim, not as part of yours) and it would have to have some merit otherwise it could be summarily dismissed.
The fact they’ve responded to the claim suggests that wherever you’ve written to/listed as the appellant is probably right.
The only thing to be clear about is who your contract actually is with, in so far as the deposit goes. If it’s unambiguously the developer and they’re reneging on their contractual terms to refund it then fill your boots.
I suspect a judge would take a very dim view of what appears to be a clear and blatant breach of contract on their part, if it got that far (which I doubt).
IANAL incidentally.
They can waffle on about costs, damages, fees, interest, emotional distress, harassment, etc all they want til the cows come home - doesn’t mean a judge is going to entertain it. They would have to particularise their claim (in a counterclaim, not as part of yours) and it would have to have some merit otherwise it could be summarily dismissed.
The fact they’ve responded to the claim suggests that wherever you’ve written to/listed as the appellant is probably right.
The only thing to be clear about is who your contract actually is with, in so far as the deposit goes. If it’s unambiguously the developer and they’re reneging on their contractual terms to refund it then fill your boots.
I suspect a judge would take a very dim view of what appears to be a clear and blatant breach of contract on their part, if it got that far (which I doubt).
IANAL incidentally.
theguvernor15 said:
We're fairly confident, it was the last paragraph which made us think (a little).
However, on the flip side, it has made us want to defend our position further.
I'll keep you all posted with updates.
That's the intent with paragraphs like that. It's pretty typical in legal action to get letters from solicitors "advising" all sorts of portentous outcomes if you continue with your claim, etc. The goal for them is for you to abandon it, or give in to whatever they're offering, etc.However, on the flip side, it has made us want to defend our position further.
I'll keep you all posted with updates.
In small claims the costs that can be awarded are restricted to things like travel expenses, loss of earnings for a witness (up to £95), etc. You're not on the hook for their legal costs, damages or any other nonsense they care to think of.
IANAL but I would say with high confidence that they won't counterclaim and what they're saying to you is just bluff and bluster.
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