Landlord small claims court action

A question about : Landlord small claims court action

Hi all,

I'm after some advise regarding our landlord starting court action against me and my husband due to unpaid rent.

We signed a tenancy agreement to rent a house and garage beginning in May for 18 months, on the day we moved in we found that the garage is full of his things and we wouldn't be able to use it as we had been expecting, we specifically wanted a house and garage and wouldn't have rented it had we known this. We asked the landlord for the garage to be cleared on the day we moved in, he said that he would sort it but hasn't. We rent through an agent and have been requesting it be cleared since May, they have stated that they have asked him to clear it and he is still refusing.

The AST agreement mentions the garge briefly, and the advert we have for the house states includes garage, the agent also agrees that we rent the garage.

We have given them 6 months to sort the problem, keeping in touch with the agent regularly about it, and having gotten nowhere we finally wrote to the agent advising that we would decrease the rent by the average price of a garage in the area, giving them time to respond. We have tried to use the Lee Parker v izzet ruling as a guide to decreasing rent payment, however as that is for repairs it is not fully applicable.

The landlord/ letting agent have now threatened us with court action if we don't pay the outstanding rent immediately, stating we will get a CCJ against our name and it will harm our credit rating. However having looked into this if we lose we can pay within 28 days and get it removed from the register, does anyone know if this will still affect our credit rating?

We want to fight this but want to know if we should pay the outstanding rent and then take him to the small claims court for compensation or if we should counterclaim his court action, we have the funds to pay the full amount but don't think we should pay rent for something we don't have use of. Also if we take the court action would it be for the full 18 months worth of rent deductions or just the amount to date?

Any help appreciated. Thanks

Best answers:

• I assumed that CAB would be able to give us a more legal answer to whether it would be better for us to raise our own claim or to counterclaim and if we lost the case would a CCJ be wipe off record if we pay it straight away? Shelter's advise was that we would have a good case if it went to court and that it would be quicker and cheaper to counterclaim but I don't know if this is the best way for us to go about it- this is a last resort, we have tried amicable discussions and offered to clear the garage ourselves but as its his stuff we cant just throw it away, we just don't think it's right for us to pay rent for something we can't actually use.
• You need to check your tenancy agreement carefully to see if there is a "no deductions clause". The default position is that you are entitled to set-off a reasonable amount from your rent if the landlord is in breach of contract. However, many tenancy agreements have a clause which says you must pay the full rent without making any deductions. There is a strong chance that these clauses will be held unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 but you can't rely on that.
  If your agreement has a "no deductions clause" then you are in breach of the agreement, and deducting for the garage is a very risky strategy because it would allow the landlord to terminate the lease for non-payment of rent: even if you have a valid counterclaim. Even if there is no such clause withholding rent is risky.
  Personally I think the safest route would be to pay the full amount of rent and make it clear to the landlord that he had an obligation to provide you with vacant possession of the premises at the start of the lease, and unless he offers you compensation and removes his stuff you will sue him in small claims court. Make sure this all goes in writing. If he still does not remove his stuff then you issue a claim for the average price of a garage in the area over six months and a declaration that the landlord will be liable for that price going forward until he clears his stuff. You do not need a lawyer for this as long as you are careful to explain everything clearly and provide proper evidence (i.e. photos of the garage).
• Did you know...
  If the property is Part-Furnished, the Landlord would have to pay Council Tax on the property. Usually with 10% discount when empty.
  I wonder if the landlord has informed the local council correctly about the state of the property when the property was in-between lets..
  PS - You can also post this thread up on the Landlord Zone Forum. A forum for Landlords..
  https://www.landlordzone.co.uk/forums/forum.php
• im positive i seen a very very similar thread not too long ago....... just not with the court side of it.
• Thank you youngsolicitor that's the kind of thing I was hoping CAB would be able to tell me.
  For the record I'm not saying that Shelter advised us to withold rent, they advised us after we'd done it and said it would be quicker and cheaper for us to continue witholding and make a counterclaim.
  We aren't bothered about references etc as we will be buying a house next year which is why we are more concerned with the ccj issue. Shelter have advised us on breaching the AST and we will never be 2months rent in arreas that a s.8 would require.
  I'm still not sure on the amount we would claim for though. If we claim for 6months by the time we get to court we would have lost out on more rent paid for something we aren't getting, would we have to claim again???
• Hi Twink22, thank you for your query regarding landlord small claims court action.
  Unfortunately you have posted this on the debt board and it is really a housing issue and you have been given advice by Shelter already who are specialist housing advisers. One thing I can say is that if the landlord goes for a money claim only and you loose after defending you would have 30 days to pay the judgement before it would be registered on the register of judgements and effect your credit report but it is likely that your landlord would apply for possession of your property as well as a money judgement and if you loose the case you may loose your home although if Shelter advise you that you have a good chance of success it may not come to that.
  Hope this is of assistance.
• If your landlord is registered there is a warning letter/ request that your local council can write about repairs. The landlord then needs to take action following the letter. I wonder if it applies to keeping possessions in the house in your way as well. Worth calling your local council landlord registration dept and asking them for advice. They may be able to write to him as well. It is also worth them knowing that your landlord is causing you problems.