Counterclaim to section 8 for unreported mould?

by Readers Question

16:21 PM, 12th February 2020
About A week ago

Counterclaim to section 8 for unreported mould?

Make Text Bigger
Counterclaim to section 8 for unreported mould?

Help! I have taken a tenant to court (section 8) rent arrears and the court provided the tenant with a solicitor. The tenant is now claiming that the property is not fit for purpose as it has damp mould in various places ( this has never been reported to me).

The court case has now been adjourned until April. I have been and looked at the property today and yes it does have mould which I believe is caused by the tenants lifestyle, cooking with no ventilation etc.

Any advice as to what to do next?

My thoughts are to remove the mould before the court hearing, but will that be enough for me to get my property back?

Is section 8 not mandatory?

Any help would be greatly appreciated.

Pauline



Comments

Frederick Morrow-Ahmed

16:42 PM, 13th February 2020
About A week ago

Reply to the comment left by LILIA FOUNTAIN at 13/02/2020 - 13:04
Brilliant Lilia! I too decided that letting property is a mugs game and got out of it. And I had been letting in London since 1976. Seen it all.

Michael Barnes

22:56 PM, 16th February 2020
About 5 days ago

Reply to the comment left by at 13/02/2020 - 13:04
False defence is contempt of court, and should be brought to the judge's attention.

Pauline

12:31 PM, 17th February 2020
About 4 days ago

Reply to the comment left by WP at 13/02/2020 - 16:24
Thanks, she is now refusing to let an expert visit the property to assess the cause of the damp although the specialist has told me it is probably condensation...... the saga continues.

Chris Daniel

21:09 PM, 17th February 2020
About 4 days ago

Reply to the comment left by Pauline at 17/02/2020 - 12:31
You need professional help. e.g. - PossessionFriend.uk
( or if you'd like to pay more, Landlord Action )

Mike

22:41 PM, 17th February 2020
About 4 days ago

Make sure you have a written statement of facts from the damp company expert, that access was denied to them by your tenant, but had you pre-warned your tenant notifying her of your intentions, by giving her at least 24hrs clear written notice, and kept a proof of delivery by means of recorded delivery, allowing a couple of days for letter or notice delivery, giving her date and approximate time slot when the expert was going to turn up, or provided her with their details and phone number, if then your tenant refused entry to the premises to inspect, it would go in your favour, but you need to have that given in writing. A statement of denied access from the specialist company could then be used as evidence in the court that she refused entry unreasonably, thereby preventing you from dealing with the damp/mould issues.
The important thing is did she ever verbally complained to you of any mould issues before e.g. by a phone call? Though you may deny if she did, the court would take her side if she said she did notify you by phone, because by default courts and law always look at landlords as guilty as hell at first sight! That is a sad reality we landlords always face, and get biased judgement based on one sided argument. Assuming you had done nothing wrong, and took appropriate measures, we know many tenants would take an opportunity to defend themselves using false allegations and courts don’t ask them for solid evidence.
But you may not be able to deny if she actually did phone you as records would be available on phone bills, for her to prove, even though that phone call may not be related to that damp.
The other thing is, when was the last time you actually conducted any inspection of the property? You will most probably be asked this question in a court, so how do you know that this condition was not present when you last inspected the property, but is a recent condition, but if you did not carry out any inspection for over 6 months, then she could claim it to be there for a while and you did nothing. remember the courts are biased, you may challenge her argument but the court would still side with her.
It is essential that such visits are conducted regularly especially during cold spells and wet weather, when damp is most likely to take a hold, dates and times of such inspections should all be documented, with your evidence of written notice to inspect the property, don't rely on just verbal agreeing, because tenant could deny, either use text messaging or emails but better still written notice with proof of posting retained, and take pictures with a camera with date stamp, don't rely on date stamp of file information as transferring files can often change dates when files were accessed or stored or transferred from one media to another, best to buy a dedicated camera with a date on the print. Voice recordings are also recommended as you inspect, as you speak into it describing the state of the place and you discussing any issues with your tenants.
You need to be honest with yourself; if you need proper advice, because suppose she did phone you about the damp or mould and you did nothing to address it, say you just slept on it, hoping for the mould to go away on its own, she then stopped paying you rent, hence you started eviction proceedings, instead of addressing the problem. Having used Section 8 eviction process, on grounds of rent arrears, Ground 8, which is 2 months in rent arrears, which allows her to challenge your eviction notice, and she can come up with any damn excuse, yes many of us learn hard way.
I would now give her a written Notice of inspection by you and your expert, give her plenty of notice say 7 days, and arrange to meet with the expert at the premises, giving a time slot, or a specific time, when you are there record all the conversation, and take a video if necessary, you could then argue in the court that she prevented you taking remedial action not only now but also before, but you do not have the evidence as you did not expect her to deny you access, so this time you have gathered your evidence.
Trouble is the Court may not grant her eviction as it may allow you to enter and take remedial action as well as for her to start paying rent again once the problem has been remedied, this means any rent she did not pay whilst the house was not in a liveable condition, you would have lost a little fortune here, plus the court fees. Sad reality of renting.
Hopefully you won’t have to pay as much tax on your rental income you did not get, plus all the expenses you incurred in repairs and expert advice and the lawyers fees etc. That is the plus side to it.

(Sorry most of it is from my own head based on my own experiences, may not necessarily be the right way to go about, but best to seek legal advice)

Pauline

13:23 PM, 19th February 2020
About 2 days ago

Mike, Thank you for your very robust contribution which raises some very good points which I will have to take on board. I have looked at Landlord action but they appear to be very expensive. I will look at the other website that you mentioned or if anyone has any other solicitor that they can recommend for this type of work I'd be glad to hear from them.
I really appreciate the constructive feedback that I have received from the 118 contributors!!!

Pauline

13:27 PM, 19th February 2020
About 2 days ago

Reply to the comment left by Chris Daniel at 17/02/2020 - 21:09
Thank you I shall make contact!

Mike

17:48 PM, 19th February 2020
About 2 days ago

Pauline, another thing is even if a tenant fails to appear at her second hearing, for any reason, this happened to me where one of my rogue tenant, being stupid as he was, trying to defend a case which he knew would be next to impossible to defend, who was persistently late with his rent, and ended up mounting rent arrears of over 3 months before I decided to evict him, but the main thing was his attitude had become very rotten and threatening at times and full of intimidation.
On his 2nd hearing through grace of Lord, he just failed to turn up at my 2nd hearing, because he ended up waiting at the wrong court room, to be called in, all the while I was at the right court room and when our names were called me and my barrister went in, yipee! I thought the tenant did not turn up! I was over the moon, however, the Lady Judge was very shrewd, and harsh, biased against landlords, she herself could do with some lessons in Diplomacy.
Any how, the lady Judge was almost going to dismiss the case as she asked for proof of my serving the Section 8 Notice to the tenant, fortunately she would not accept my word that I delivered it by hand, she asked me to produce the evidence!
Fortunately, I had done my homework, at the time of serving the tenant my Notice I took with me a witness, because on a previous attempt he just tore my section 21 notice, but this time I was giving him a Section 8 Notice because there would a problem if I served him a Section 21, as I had not given him a Gas safe Certificate in his hand prior to him moving in, I had one in a common place near the boiler, it was valid, but I had not had his acknowledgement that he received it along with other essential papers.
However, I was nearly not going to bother the witness for a statement, until last two days before my 2nd hearing, I just don't like inconveniencing people, but I am glad that I rang him 2 days and asked him if he would oblige to type me a witness statement when we both went to serve this rogue tenant the eviction Notice, he obliged and I took a copy with me in my case bundle of nearly 100 pages!
Indeed i am very fortunate that i troubled him, the Judge was not going to give me an eviction order unless I produced this witness statement of serving the notice to the tenant, and whether I allowed him 2 weeks before filing the application,
so when the Judge asked for this, I was frantically trying to fish it out of 100s of pages from of my bundle, the Judge was getting very impatient, and said I have 30 seconds more or she was going to dismiss this case, so again just a few seconds to spare, I managed to fish it out before my barrister, and handed it over! You should have seen the Judge's face, all the while a smile emerged on mine and you should have seen the disappointment on her face! another landlord case she could not dismiss! She had no choice but to grant me the eviction!
This was my 2nd hearing, the first one was adjourned by the tenant getting a bloody free Court lawyer, who managed to pick a small mistake in my Particulars of claim tried to dismiss the case but on the 1st hearing there was a more sensible kind Judge who instead of dismissing the case gave me the opportunity to resubmit Particulars of the Claim with amendments, and adjourned the case to another date a month away, managed to adjourn , this was a very kind Lady Judge.
Hence why it is sometimes better to engage professional legal advisors instead of doing it yourself, any small error can cost a case.

(Common sense has evaporated everywhere including among Judges)
( by the way you mentioned in your post that I had recommended you to seek legal advice, indeed but I have not given you any names of any firms or legal advisors, as I cannot do that on public forums) But who is right for you is entirely your decision, I don't say who is expensive or who is cheaper, but whatever it is, getting rid of a rogue tenant is always costly business, I popped a bottle of champ with my lawyer ! got rid of real bastard of a tenant.

Mike

18:11 PM, 19th February 2020
About 2 days ago

My opinion of Free Duty Solicitors available to rogue tenants:
These abuse landlords, don't pay rent, don't pay proper taxes, what they pay they claim back as tax credit, claim endless other benefits, are self employed, understate their income, are always getting drunk, enjoying life on others taxes and contributions, think they are well protected against evictions if they don't pay rent for a while, and there are endless bodies like Shelter who try to protect this breed of vermin irresponsible tenants, I love all the good responsible tenants, never had to evict any good tenant, and would even go as far as reducing their rent if their circumstances became hard, for instance one of my tenants signed an agreement to pay £900pcm rent back in 2015, You would think the rent should by now be around £1000 to £1200 for a 3 bedroom house in Harlow Essex, but wait, forget that, he is not even paying me the £900, but I am reluctantly taking from him £800 pcm, as I have no strength to take him to court after suffering a real nightmare with that rogue tenant, but now this tenant is paying less than the agreed amount, I have not agreed to take lower rent, so his rent arrears have built up well over 2 months, I will serve hima notice when I have regained my strength, but for now it is best to continue to take what i can get and rather than lose out far more if I took him to court and pay my lawyers and court fees which could mount to well over £2K,

So to the Duty solicitors...you are getting paid from the public purse, defending a** holes, who don't pay taxes, and are getting benefits and depriving good honest landlords their income on which they pay taxes, so that you could be paid through legal aid, you are also no better than these leeches sucking up public funds, which could be used for better purpose such as on NHS or making more affordable housing.
that is my honest opinion of today's renting nightmare, no wonder thousands of private landlords are fed up and leaving, I am next.

1 2

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Can beneficial ownership be claimed without the paperwork?

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More