Landlord, CCJ, legal advice please!
Discussion
Some of you may remember this thread about the landlords going AWOL on a buy to let flat my mum owns:
www.pistonheads.com/gassing/topic.asp?h=0&t=234360
Well she found out there had been a change of landlord that she knew nothing about via the land registry and it’s all getting a bit shitty now.
My Mum wrote to the new landlords asking what’s going on about no bills being sent for 18 months. She’s just got a letter back from their solicitors saying that on 7th January 2006 there was a court hearing against her for non payment of ground rent and service charges and that she owes them 2400 quid of which 1600 quid is legal fees. Further more if this is not paid in 14 days the tenancy will cease.
This is the first my mum knew about any court case. Apparently, as they did not have a correspondence address for her, they sent all the bills and the subsequent court summons to the flat. Evidently, the tenants have been discarding the letters since they were not addressed to them so my mum never got them. What’s more I assume she now has a CCJ against her name at that address which she knows nothing about.
I have told her not to send them any money and not to reply to the letter or even speak to them by phone. I will speak to my solicitor in the morning and get them to take if from there. In the meantime I’d be interested in any of the PH legal beagle’s opinions.
Where does she stand? The old landlord was sending my mum bills so clearly he had a correspondence address for her. She knew nothing about the change of landlord and nothing about the unpaid bills or court case. Surely it’s the responsibility of the old landlord to pass on the correspondence address for the leaseholders to the new landlords? How can she ensure they have an up to date correspondence address when she didn’t even know there had been a change of landlord? Also isn’t there some rule that to take someone to small claims you have to have a current address for them? That is not the case here. What about them saying the tenancy will cease if the debt is not paid in 14 days? She paid 85 grand for the flat and there’s about 95 years left on the lease. Surely they can’t take that away from her just like that over a 2 grand debt? Finally how does she find out if there is a CCJ against here name? 1 pound and a form to one of the credit checking agencies or is there a quicker way?
Sorry for all the questions but this has got me quite pissed off. I’m sure it’s just heavy handed solicitors trying it on. If they wrote to me I’d tell them to f**k off and put my solicitor straight on it. However, my Mum is in her 60’s has never been in any kind of legal trouble at all and really is quite upset and worried over this. She kept apologising to me over and over on the phone tonight.
Wan**rs
www.pistonheads.com/gassing/topic.asp?h=0&t=234360
Well she found out there had been a change of landlord that she knew nothing about via the land registry and it’s all getting a bit shitty now.
My Mum wrote to the new landlords asking what’s going on about no bills being sent for 18 months. She’s just got a letter back from their solicitors saying that on 7th January 2006 there was a court hearing against her for non payment of ground rent and service charges and that she owes them 2400 quid of which 1600 quid is legal fees. Further more if this is not paid in 14 days the tenancy will cease.
This is the first my mum knew about any court case. Apparently, as they did not have a correspondence address for her, they sent all the bills and the subsequent court summons to the flat. Evidently, the tenants have been discarding the letters since they were not addressed to them so my mum never got them. What’s more I assume she now has a CCJ against her name at that address which she knows nothing about.
I have told her not to send them any money and not to reply to the letter or even speak to them by phone. I will speak to my solicitor in the morning and get them to take if from there. In the meantime I’d be interested in any of the PH legal beagle’s opinions.
Where does she stand? The old landlord was sending my mum bills so clearly he had a correspondence address for her. She knew nothing about the change of landlord and nothing about the unpaid bills or court case. Surely it’s the responsibility of the old landlord to pass on the correspondence address for the leaseholders to the new landlords? How can she ensure they have an up to date correspondence address when she didn’t even know there had been a change of landlord? Also isn’t there some rule that to take someone to small claims you have to have a current address for them? That is not the case here. What about them saying the tenancy will cease if the debt is not paid in 14 days? She paid 85 grand for the flat and there’s about 95 years left on the lease. Surely they can’t take that away from her just like that over a 2 grand debt? Finally how does she find out if there is a CCJ against here name? 1 pound and a form to one of the credit checking agencies or is there a quicker way?
Sorry for all the questions but this has got me quite pissed off. I’m sure it’s just heavy handed solicitors trying it on. If they wrote to me I’d tell them to f**k off and put my solicitor straight on it. However, my Mum is in her 60’s has never been in any kind of legal trouble at all and really is quite upset and worried over this. She kept apologising to me over and over on the phone tonight.
Wan**rs
That's really bad to hear.
OK a few suggestions, I'm sure they'll be more advice to follow.
Firstly the landlord did have an address for her for service purposes, it was the flat address. I'm not sure of the legalities of "last known address" when the old landlord had her new details.
You need to check what address is shown for your mum on the Land Registry details - get a copy of the details for her flat in the same way you got a copy of the Landlord's details. If it's the flat address rather than her correspondence address I'd imagine that this is the root of her problem.
She needs to get a copy of the court judgment - ask the solicitors for the details of the court and the case number. Get in touch with them proto and ask the staff (or your solicitor - but she can do this legwork herself) how she goes about making an application to set aside the judgment.
The court may be prepared to set aside the judgment as she wasn't aware of it.
You need a litigator to give some thought to the concept of last known address - I'm concerned that the effect of an incorrect (ie the flat) address on the Land Registry details might be sufficient to be taken as her last known address for the new landlord.
Good luck!
OK a few suggestions, I'm sure they'll be more advice to follow.
Firstly the landlord did have an address for her for service purposes, it was the flat address. I'm not sure of the legalities of "last known address" when the old landlord had her new details.
You need to check what address is shown for your mum on the Land Registry details - get a copy of the details for her flat in the same way you got a copy of the Landlord's details. If it's the flat address rather than her correspondence address I'd imagine that this is the root of her problem.
She needs to get a copy of the court judgment - ask the solicitors for the details of the court and the case number. Get in touch with them proto and ask the staff (or your solicitor - but she can do this legwork herself) how she goes about making an application to set aside the judgment.
The court may be prepared to set aside the judgment as she wasn't aware of it.
You need a litigator to give some thought to the concept of last known address - I'm concerned that the effect of an incorrect (ie the flat) address on the Land Registry details might be sufficient to be taken as her last known address for the new landlord.
Good luck!
A further post to add that if her address on the property register is her current address then she should have a good case to prove that she wasn't correctly served and thus the judgment should be set aside.
The bad news is that her lease will almost certainly contain provisions that allow the Landlord to forfeit the lease in the event of a breach of the tenant's covenants. There will be a covenant to pay ground rent, insurance, service charge etc. etc. and if (on the face of it) she is in breach then there is a right to forfeit the lease. IF it comes to that and I'd suggest she avoids that happening, she can apply for relief from forfeiture which is an equitable remedy, basically this means that the courts will look at whether it was "fair" that the Landord forfeited the lease. If they had a correct address for her and made no effort to find her or use it then they MAY struggle to prove that it was equitable but I would strongly advise against trying this out.
this comes with the normal caveats that I might be talking rubbish - I'm a commercial property lawyer rather than a litigator.
The bad news is that her lease will almost certainly contain provisions that allow the Landlord to forfeit the lease in the event of a breach of the tenant's covenants. There will be a covenant to pay ground rent, insurance, service charge etc. etc. and if (on the face of it) she is in breach then there is a right to forfeit the lease. IF it comes to that and I'd suggest she avoids that happening, she can apply for relief from forfeiture which is an equitable remedy, basically this means that the courts will look at whether it was "fair" that the Landord forfeited the lease. If they had a correct address for her and made no effort to find her or use it then they MAY struggle to prove that it was equitable but I would strongly advise against trying this out.
this comes with the normal caveats that I might be talking rubbish - I'm a commercial property lawyer rather than a litigator.
OK, just checked. The address of the owner on the lease in the land registry entry is the actual flat address. She has never lived there. It’s always been let. I assume the conveyancer put that on there without asking if she wanted a different correspondence address when she bought it.
If she has copies of past bills from the old landlord with the current address on is that proof enough that they had the right address in the past and lost it or didn’t pass it on?
If she has copies of past bills from the old landlord with the current address on is that proof enough that they had the right address in the past and lost it or didn’t pass it on?
It's unfortunate that the Land Registry shows the flat address. If the conveyancer knew that it was a buy to let then that's something that should have been flagged with your mum. Was she sent a copy of the completed entry at any point? The trouble is even if she was she probably wouldn't have queried it. There might, I guess, tenuously be some kind of negligence claim against the conveyancer for this but unfortunatly the Transfer (TP1 or TR1) that she signed to complete the sale would have shown the address for the Transfee and that is what the LR go on to register the details so presumably she's signed this (albeit without realising the effect of this). I'm not lecturing here - my own rented out property still has me at that addres - I really must change it over!
I have to say my gut feel (and I'm no ligator - I avoid risk!) is that she might be better off just paying up and that the cost of any potential litigation might well outweigh what it will cost her to resolve this. It would be helpful to get a feel for the new landlord - is this someone who is just taking the piss and is trying to get the lease forfeited or is this someone who genuinely has bought the freehold and couldn't make contact with your mum as the old Landlord didn't pass the details on?
Be guided by a litigator though - do bump this back up tomorrow.
(apologies for spelling and tpying - bad day and too much gin!)
I have to say my gut feel (and I'm no ligator - I avoid risk!) is that she might be better off just paying up and that the cost of any potential litigation might well outweigh what it will cost her to resolve this. It would be helpful to get a feel for the new landlord - is this someone who is just taking the piss and is trying to get the lease forfeited or is this someone who genuinely has bought the freehold and couldn't make contact with your mum as the old Landlord didn't pass the details on?
Be guided by a litigator though - do bump this back up tomorrow.
(apologies for spelling and tpying - bad day and too much gin!)
t1grm said:
My Mum wrote to the new landlords asking what’s going on about no bills being sent for 18 months. She’s just got a letter back from their solicitors saying that on 7th January 2006 there was a court hearing against her for non payment of ground rent and service charges and that she owes them 2400 quid of which 1600 quid is legal fees. Further more if this is not paid in 14 days the tenancy will cease.
get a bit of proper advice but i'm sure you can apply to have the judgement set aside - this must be done tomorrow or as quickly as possible.
there will then be a hearing scheduled which she must attend. she will then get to say that she hasn't had any of the letters etc etc and generally that is accepted and the judgement is set aside.
i cant remember exactly what happens but there will then be a second hearing when the case is heard in full again.
i'm not sure where the legal fees are coming from as it probably went through a small claims court and once the wheels are set in motion i'm sure she isn't liable for them if it can get settled properly.
one small question - if the papers were originally served to the old address - why did they send them to her known address at the end of the proceedings.
iirc a ccj is only entered if the debt is unpaid after 30 days hence getting in there quick to get the judgement set aside. its an unpaid ccj that is damaging.
a proper legal eagle will probably be on in a moment to tell me i'm wrong so apologies in advance.
Looks like I'm the first litigator on the scene...... 
Your mum needs to apply to set the judgment aside as quickly as possible. Before the court will do that, it will need to be convinced that:
(a) there is a good reason why she did not respond to the original claim; and
(b) if set aside, she has a defence to the claim that stands a reasonable prospect of success at trial.
Piglet is quite right to flag up the issue of the adequacy of the address used for service. In my experience though, judges are usually prepared to give the defendant the benefit of the doubt if they say they never saw the original claim documentation, have a reasonable explanation for why AND can show at least an arguable defence.
The other side should be invited to agree to set the judgment aside by consent. Almost certainly they will refuse, but it's worth a try.
Feel free to e-mail me via my profile if you have any more specific questions. Your own solicitor should be able to sort out the application to set aside quite quickly though.
Your mum needs to apply to set the judgment aside as quickly as possible. Before the court will do that, it will need to be convinced that:
(a) there is a good reason why she did not respond to the original claim; and
(b) if set aside, she has a defence to the claim that stands a reasonable prospect of success at trial.
Piglet is quite right to flag up the issue of the adequacy of the address used for service. In my experience though, judges are usually prepared to give the defendant the benefit of the doubt if they say they never saw the original claim documentation, have a reasonable explanation for why AND can show at least an arguable defence.
The other side should be invited to agree to set the judgment aside by consent. Almost certainly they will refuse, but it's worth a try.
Feel free to e-mail me via my profile if you have any more specific questions. Your own solicitor should be able to sort out the application to set aside quite quickly though.
t1grm said:Would it also be appropriate to pay the arrears portion (800 quid) immediately (and provide a copy of this cheque to the court) to show there was no intention to avoid the original ground rent ? ? ?
My Mum wrote to the new landlords asking what’s going on about no bills being sent for 18 months. She’s just got a letter back from their solicitors saying that on 7th January 2006 there was a court hearing against her for non payment of ground rent and service charges and that she owes them 2400 quid of which 1600 quid is legal fees. Further more if this is not paid in 14 days the tenancy will cease.
Kiwi XTR2 said:
Would it also be appropriate to pay the arrears portion (800 quid) immediately (and provide a copy of this cheque to the court) to show there was no intention to avoid the original ground rent ? ? ?
Yes that’s what I was thinking too.
Anyway, I spoke to my solicitor who put me in touch with another firm who specialises in landlord tenant work and I have detailed all this out to them in an email.
The guy I spoke to knows the guy who wrote the letter at the firm representing the landlord. Don’t know whether that’s good or not.
I asked them about paying the arrears straight away (minus the interest and legal fees). I’ll sit tight and wait to see what they say.
>> Edited by t1grm on Friday 20th January 11:12
Gassing Station | The Pie & Piston Archive | Top of Page | What's New | My Stuff