Taking a student to court.

[Ed999]

If we have paid the landlord the share of the missing rent then I don't understand why we can't pursue the debt from the defaulting tenant.

 

 

Where you are sued by the landlord, there are fairly strict rules of court which pretty much compel you - as I understand it - to make any claim for indemnity against the defaulting tenant within the same proceedings, in order to avoid unnecessary litigation.

 

If, however, there have not yet been any court claims begun against any other tenant or guarantor by the landlord, once you have paid money on behalf of the absconding tenant a debt would exist between him and you. And, theoretically, you might sue him. But I advise caution: you have to have evidence, specific evidence, of who exactly has made the payment on behalf of that tenant.

 

In my experience, a claim can fail where you do not prove that the payment made to the landlord was made on behalf of the defaulting tenant, or if you do not prove that the person or persons suing the defaulting tenant are the exact same persons who met his liability to the landlord.

 

If any payment or other admission of liability has been made by any guarantor, you need legal advice from a Solicitor, without which advice it would be unwise to take any step in proceedings because the law of guarantee is so complex.

Edited June 1, 2011 by Ed999

[Ed999]

What I need to know, if you have any idea, is can I do the claim in my name on behalf of the others, as their representative?

 

If the students issue the claim and they have to go to any hearings, it will mean them taking time out of their course which isn't very practical.

 

 

I understand that it is NOT possible for you personally to make a claim on behalf of anyone but yourself, except where the other person is a child under the age of 18 or is detained under the Mental Health Act and you are appointed as their representative by a court.

 

If the discussed claim againss the defaulting tenant is defended, which is perhaps unlikely, each tenant who paid money as a contribution to the absconding tenant's debt will have to give evidence at a hearing. That can't be avoided.

[Dotty50]

Sorry, not had notification emails of new posts!

 

It would not be a problem to prove payments to the landlord for the additional amounts and I am sure the landlord would also confirm this for us.

 

So from what you say Ed, we would have to issue a claim in the names of the remaining tenants, which means that it can only be done by post as MCOL will only allow for one claimant

 

The landlord has confirmed that the guarantor's hearing for the application to set aside the judgement was postponed, however the landlord does not feel inclined to attend any future hearing due to added costs and the possibility that there is no chance of recovering any money!

 

Am I right in thinking that the set aside application would have to state the reasons why it should be set aside?

 

If the landlord doesn't attend a future hearing, will that mean that it will get set aside by default? The landlord has no interest to pursue this now because we have paid the outstanding rent!

[Dotty50]

Ooh, where has everyone gone?

[caro]

Sorry, not had notification emails of new posts!

 

It would not be a problem to prove payments to the landlord for the additional amounts and I am sure the landlord would also confirm this for us.

 

So from what you say Ed, we would have to issue a claim in the names of the remaining tenants, which means that it can only be done by post as MCOL will only allow for one claimant

 

My reading of Ed's post is that it's not possible to have multiple claimants at all, except in the circumstances he stated. As Ray says though, you could check with the court.

 

The landlord has confirmed that the guarantor's hearing for the application to set aside the judgement was postponed, however the landlord does not feel inclined to attend any future hearing due to added costs and the possibility that there is no chance of recovering any money!

 

Am I right in thinking that the set aside application would have to state the reasons why it should be set aside? Yes.

 

If the landlord doesn't attend a future hearing, will that mean that it will get set aside by default? The landlord has no interest to pursue this now because we have paid the outstanding rent!

 

That would be for the judge to decide. If there is a strong enough case for the set aside, the case would be re-instated, but it's not a foregone conclusion.

[Dotty50]

Hi Caro,

 

Yes I have checked with the court and there can be more than one claimant but it will have to be a postal one as MCOL only allows for one claimant. It would have been so much easier for me to do it on behalf of the students but it seems that I cannot. This could create further problems down the line if we have to get everyone together but I will have to cross that bridge as and when.

 

I am after info on what happens with the current claim if the landlord does not attend any future hearing.

[caro]

If the set aside is allowed the landlord's original claim will be reinstated. The other side can submit a defence, if they didn't before, and the judge can weigh up the evidence on the information available. If the LL doesn't turn up at a hearing and the other side does a good job, the LL could well lose, but no guarantees.

 

Frankly if the judge thinks there's a good case for a set aside the chances are that they will have put in a convincing application and will win the case. But as you said, the LL has his money so why does he need to worry......

[Dotty50]

That's great Caro, thanks for that clear explanation.

 

it's very much a case of 1 step forward and 3 steps back!

 

I am now thinking along the lines of withholding rent in view of the landlords reluctance to pursue the guarantor, there isn't too long left to go on the tenancy. I know this is probably not a good idea but we were railroaded into covering this rent with threats.

 

I am presently awaiting a copy of the set aside application to see what reasons were given, when I have this, I can then consider how to proceed. In the meamtime, I will be sending the preliminary letter and see if it gets a response!

[Ed999]

The landlord has confirmed that the guarantor's hearing for the application to set aside the judgement was postponed, however the landlord does not feel inclined to attend any future hearing due to added costs and the possibility that there is no chance of recovering any money!

 

... If the landlord doesn't attend a future hearing, will that mean that it will get set aside by default? The landlord has no interest to pursue this now because we have paid the outstanding rent!

 

 

The likelihood is that if the landlord does not oppose the application by the guarantor, the application will succeed, even if the guarantor's grounds for applying are a bit thin.

 

 

 

Am I right in thinking that the set aside application would have to state the reasons why it should be set aside?

 

 

Yes. The judge will read them, and will need to be satisfied that they show at least a prima facie case for granting a set aside - e.g. that the guarantor was not given any notice - or any adequate notice - of the claim made against him, as required by the rules of court.

Edited June 10, 2011 by Ed999

[Dotty50]

Thanks for the clarification Ed.

[Dotty50]

Landlord has refused to let me have a copy of the set aside application until all the rent is paid up to date.

 

Some has been withheld awaiting it and so I have refused to pay until I see the copy!

 

Not the way I do business normally but I have had enough of the bullying tactics!

[Dotty50]

http://legaladviserfinder.justice.gov.uk/

 

This link has proved invaluable for me I will post further details soon.

[Dotty50]

Hope there are experts still subbing as it has been a while!

 

Having sent further letters to the absent tenant and guarantor and getting nowhere, I sent a letter before action and am now in the process of completing an N1 claim form, I am unable to submit on line because there is more than one claimant.

 

I have some guidelines for completing the claim form but was just wondering how much details to go into on the POC, just basic confirming how the debt has arisen or more details about how I have tried to get this sorted over the last few months but to no avail?

 

Should I also attach a copy of the joint tenancy agreement and the guarantee form with the claim?

[Dotty50]

http://www.consumeractiongroup.co.uk/forum/showthread.php?301099-Taking-a-student-to-court.

 

Above link to original thread but thought I would start a new one for assistance.

 

I am in the process of completing the N1 claim form and think I may be going overboard with the Particulars of Claim so I was hoping some kind person will take pity on me and have a look at what I have done before I get it sent to the court.

 

If someone would be kind enough, please let me know.

 

I don't really want to post it up here due to anonymity as it is quite a unique case (although it may not be as unique as I think)!

 

Thank you in anticipation.

[raydetinu]

I think it is best to give as much information as possible, and any confirmatory evidence.

[Dotty50]

Thanks for popping in Ray.

 

It's looking like it might be an epic!

[Ed999]

Hope there are experts still subbing as it has been a while!

 

Having sent further letters to the absent tenant and guarantor and getting nowhere, I sent a letter before action and am now in the process of completing an N1 claim form, I am unable to submit on line because there is more than one claimant.

 

I have some guidelines for completing the claim form but was just wondering how much details to go into on the POC, just basic confirming how the debt has arisen or more details about how I have tried to get this sorted over the last few months but to no avail?

 

Should I also attach a copy of the joint tenancy agreement and the guarantee form with the claim?

 

 

State the date of the contract, the full names of all the parties to it, the address of the premises, whether the agreement was oral or was written, the agreed rent per month, the date the letting began and the date it ended, which party ended it and how, the amount of unpaid rent and a breakdown of how that figure is arrived at, and if applicable state any amount claimed for dilapidations.

 

State the date of the guarantee agreement, the full names of the parties to it, and describe briefly the nature of the guarantee given - e.g. a guarantee to pay the rent and dilapidations if the tenant failed to do so on demand.

 

State the total amount claimed for rent and dilapidations, as at the present date; and give seperate details of any claim for interest, stating finally a total sum that includes interest to date.

 

Attach a photocopy of the tenancy agreement and of the guarantee agreement - not the originals.

[Dotty50]

Thanks for that Ed999, I was thinking that I was over-complicating it and going into much to much detail.

 

Not sure what you mean about 'dilapidations' though?

 

The students had no further costs other than the monthly rent and bills and the house was left satisfactory on vacation and I have confirmation from the landlord to this effect

Edited October 25, 2011 by Dotty50