When all avenues have been exhausted… Taking tenants to court – Part 2 – When they defend | Discuss

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When all avenues have been exhausted… Taking tenants to court – Part 2 – When they defend
20/05/2014
4:53 pm
Phil Wheeler
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When all avenues have been exhausted… Taking tenants to court – Part 2 – When they defend

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When all avenues have been exhausted… Taking tenants to court – Part 2 – When they defend

In part 1 here I covered Default Judgement which occurs when you request Default Judgement fifteen days after the date of service. This can be done if you judgement is ignored, the tenant no longer lives at the address, or has ignored you.

This article covers when they defend. What happens next.

You are the claimant and the tenant is the defendant. If they defend then they submit a form stating why they don’t owe you the money you are claiming. Or they admit to some of the debt but not all of it. They then pay the bit they agree they owe and a court date is set for the remainder.

Preparation is everything
You then have to think about what their arguments will be based on their defence and put together an indexed bundle of all evidence you’ll be submitting to the court clearly numbered so the Judge can effectively navigate the case on the court date. The defence should be obvious when you’ve read the tenants answer or excuses to why they shouldn’t pay. If they say they didn’t leave it dirty you’d include before and after photos and a signed schedule of condition.

You post a copy to the Judge and one for the Tenant again using recorded delivery or proof of posting. Keep the receipt – it’s evidence!

This usually includes your contract (the tenancy agreement), inventory, check in and check out inspection etc. The relevant information to your case. Don’t include everything – just what is needed to win and counter their defence. Too much can aid the tenant too.

You cannot surprise anyone at court. If you want to raise something it it must be in the bundle – if it’s not it will be struck out, so think about what you need and include it in the bundle.

You will more than likely be given the option of mediation along with a court hearing date at the court nearest the defendant. This allows you to resolve the matter outside of court and save the court time and effort. It can get a quick and easy resolution. It’s free and should be accepted if offered. Unfortunately I haven’t been able to settle at the mediation stage.

At mediation you receive a phone call from a mediator who has read the documentation and asks you questions about what you’d accept and your opinions. They then ring the tenant and ask whether they are willing to settle and if so how much would they pay. The mediator then rings you back with an offer or a rejection. Ideally it gets settled there and then otherwise the court date offered stands and you turn up and present your case.

Your day in court
You should arrive early and speak to the usher to let them know you have arrived and they will sit you outside the court until the start time and usher you in.

You refer to the Judge as Sir of Madam and politely put your case across. There is no place for emotion here just logic. Anger, name calling or similar will lose you favour with the Judge and more than likely lose your case for you. You must be the perfect Gentleman or Lady. Be humble. Speak only when spoken to. Leave your ego outside the court room. Hold doors open for your tenant if they are following and do not interrupt the tenant or the Judge – you could put up your hand.

I always make notes on the defendants argument so you can remember what was said and defend in a clear and concise manner when the Judge allows you to speak. Watching Judge Judy is useful here, also attending cases at your local court is possible to familiarise yourself with protocol and the surroundings.

You will be given a chance to speak. The only time to be assertive is after the Judgment when you have won. Request travel costs and any other that you’ve incurred – time off work (prepare this in advance.) Do not get greedy, you are stepping around a deep chasm – upsetting the Judge will cause you to lose your footing.

Some Judges hate Landlords, others are Landlords, so it’s luck of the draw. Don’t give them a reason to dislike you. Let the Tenant have the accolade of upsetting the Judge. They will do this when they interrupt and bend the truth.

Be prepared for the Judge to ask for a breakdown of all of your costs. He’ll tell you most are unrealistic and you can only claim x for a letter or y for postage etc. This in my mind is to allow the defendant to feel like they have ‘won’ too and to stop them taking things in their own hands afterwards.

When you win
You only put cases to court you know you are likely to win. When you do, ask for the costs then leave the court. Consider using public transport such as the train to get there as the costs are reclaimable in full and are clearly stated on your receipt. Car travel costs are harder to calculate and rely on x miles at x pence per mile, fuel receipts are useless as they don’t clearly correspond to mileage and actual cost. Then thank the Judge for their time and leave still holding doors for the tenant as necessary.

Remember the process is not personal it’s a business transaction. The court will write to you in 14 days with the decision and the agreed payment schedule – if you can ask that the tenant pays in full as the property has a mortgage against it etc otherwise the tenant will argue a payment plan of £10 a month – you application form with earnings on it and payslips in your back pocket will assist you.

Next time where I’ve lost money (things don’t always go to plan – experience is what you get when things don’t go your way!)

 

photo credit: John Carleton via photopin

© 2014 Philip Wheeler http://www.evillandlord.co.uk

Let Sir Terry Wogan explain it - > http://www.mostpeoplesavemoney.co.uk

 

21/05/2014
8:37 am
David Price
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In 25 years and scores of claims I have only had one tenant defend and the process was exactly as you described.  The tenant did a fine job of upsetting the judge and lost the case.  A pyrrhic victory as she agreed to pay £3 a week; it took 5 years for her to pay the sum owed and I did not claim interest.

Leaseholders are different as they nearly always defend.  The judge invariably directs the case to the LVT (Now First Tier Tribunal) and an enormous amount of work is then involved to present a case.  The secret is to have a professional survey done and go straight to the LVT where you ask for the service charges indicated in the survey over a period of at least five years.  This inhibits, but does not completely rule out, another visit to the LVT.  A complicated subject on which I could write reams. Frown

21/05/2014
4:40 pm
Mary Latham
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This is a very informative thread thank you Phil and David

Follow me on Twitter @landlordtweets

23/05/2014
11:44 am
Phil Wheeler
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Thanks David, thank you Mary.

David I think we’d all benefit from your experiences it seems you’ve had your fair share of lessons I’d be interested in reading about them. The issue of interest is tackled automatically when you complete a small claim online as it’s one of the prompts when filling out the form although at 3% over base rate it’s hardly credit card or wonga interest – it costs you more in time doing the calculation! Not all disputes result in court action and I’ve lost money where the tenant hasn’t been worth chasing – explained in my next part of the article.

Leaseholds are an area where my knowledge is lacking as I only buy freehold properties – a lesson learned from my parents. A friend recently bought the ground rents to a block of flats – on the face of it it looked like a mistake as monies hadn’t been paid on it for some time but with lease renewal he stands to double his money so a shrewd in investment if it  brings such large returns without managing tenants. Have you ever bought ground rents?

Phil

Let Sir Terry Wogan explain it - > http://www.mostpeoplesavemoney.co.uk

 

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