Small Claims permitted after DPS award?

Small Claims permitted after DPS award?

12:25 PM, 24th May 2019, About 5 years ago 23

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I’d particularly welcome comments from those within the letting business’ or especially those 118 members with legal qualification please.

Last year my tenant abandoned the property half way into a fixed term tenancy, leaving rent arrears and many items damaged and lost. Furthermore she did not return the keys so an Abandonment Notice was issued by LA.

There was a deposit held of £1,000 with DPS via our agent, also her father was a Guarantor (under a Deed of Guarantee). Tenant refused to agree to the figure we claimed, nor to progress the dispute to ADR. Despite all the items to be claimed were covered in the terms and conditions of the AST and supported by both Pre and Post Inventory reports conducted by independent Inventory Clerks via the LA. Together with 2 witness statements.

Eventually after our solicitor sent LBA and a final demand letter, six month after departure agreement was give by the tenant for arbitration at DPS. The LA said that it wasn’t a good idea to enter the entire sum of £2-3,000 to be claimed, as the deposit only covered £1000. Which we agreed to, having no previous experience. The adjudicator awarded £880 of the deposit after some small deductions for wear and tear, age ect, that was understandable and we accepted.

So my questions:

Given that there has already been an award via DPS arbitration, does this now preclude any further claim via MCOL or Small Claims track in regards to those items NOT entered into arbitration?  A separate claim for separate items not previously claimed.

Whom would be the best party to pursue to recover the sum which is covered by terms in both tenancy contracts and the guarantor agreement?  The father as guarantor and homeowner in full employment either high credit ratings? Or his daughter the tenant, who is a recipient of disability benefits?

Thank you most kindly in anticipation of your response.

Frustrated.


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Comments

Michael Barnes

22:17 PM, 24th May 2019, About 5 years ago

The LA said that it wasn’t a good idea to enter the entire sum of £2-3,000 to be claimed, as the deposit only covered £1000

Your LA was wrong.
Always claim for everything in the expectation that adjudicator will not award the full amount.
Also, by showing what the tenant has done, it may persuade the adjudicator that T really is a b'stard.

Chris @ Possession Friend

0:34 AM, 25th May 2019, About 5 years ago

Reply to the comment left by Michael Barnes at 24/05/2019 - 22:17
Michael is right, there is NO duty to mitigate loss.
If your evidence is sound, pursue a MCOL - cheap and easy to do.
And for the figure your talking about, represent yourself ( with a friend, if need be ) wouldn't think the amount or circumstances warrant a solicitor ( who's costs would be pretty much what your claiming, or more ! )
( If there is a Higher than the deposit amount disputed, I'ad always take it to court and Not the Deposit scheme's ADR )

Frustrated

9:18 AM, 25th May 2019, About 5 years ago

Reply to the comment left by Michael Barnes at 24/05/2019 - 22:17Thank you Michael some very interesting points you ve made and sound advice.
The lettings agent discouraged me from taking both tenant and guarantor to SCC very early on in proceedings. Which was a wrong move.
They put some items that were to be claimed, over the value held by DPS, but not all. Can the items entered into DPS but NOT awarded, later be claimed from the Guarantor at SCC, such as the legal fees for my solicitor to push for Adjudication, when 4 months of stalemate had existed?
What Im trying to establish is: Is there anything from stopping a claim against the guarantor for those items which were not awarded by ADR? As this is not a claim against the tenant or deposit, but the guarantor under a separate contract.

Chris @ Possession Friend

17:48 PM, 25th May 2019, About 5 years ago

Reply to the comment left by Frustrated at 25/05/2019 - 09:18
You should bring a Money Claim on Line against BOTH Tenant AND Guarantor. for all your losses

Frustrated

2:04 AM, 26th May 2019, About 5 years ago

Reply to the comment left by Chris Daniel at 25/05/2019 - 17:48
Would that be joint or two separate claims with MCOL please Chris?
And if one should fail, would that influence the judgment on the second.

Such as what was dismissed in a claim against the tenant, can it be brought to claim against guarantor, or vice versa?

Thank you

Jan Martin

14:49 PM, 26th May 2019, About 5 years ago

Go after whatever amount is outstanding. When you claim name them both because they are both liable .Have you looked at the
site I cant remember how its worded now but you name them seperately . Costs you no more but makes then both liable . You will need the address of both of them .Will take a look later.

Jan Martin

15:00 PM, 26th May 2019, About 5 years ago

Reply to the comment left by Frustrated at 26/05/2019 - 02:04
Register with the MCOl .You will have a number and a password. Start your claim and when asked Type defendant its individual.
Fill in the name and address of your first debtor. Then you will see as you go up that they will give chance to add second Defendant. So then fill in and proceed with your claim . Same cost but gives you two chances.

SimonR

15:15 PM, 28th May 2019, About 5 years ago

Reply to the comment left by Frustrated at 25/05/2019 - 09:18
You would have to name both the tenant and guarantor on the claim form

Frustrated

7:13 AM, 30th May 2019, About 5 years ago

Reply to the comment left by SimonR at 28/05/2019 - 15:15
Thanks Simon, sorry to appear dim but why would this be please?
Might it be that a claim against the guarantor ONLY, would nt be the correct party to sue because my contract is with the tenant not the gaurantor?- therefore any breaches i.e. rent arrears, damages are brought under the terms of the AST. The guarantor is only my 'back up" if the case a tenant does/ cannot pay. Correct?

Chris @ Possession Friend

8:01 AM, 30th May 2019, About 5 years ago

Reply to the comment left by Frustrated at 30/05/2019 - 07:13You must bring a claim against All responsible for the debt. Once an order is made, you ( HCEO ) can choose who is most likely to be effective for enforcing - recovering against.

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