Here is a question to the blog clinic from Emma who is a landlord:
I have filed a MCOL against my old landlord for four weeks’ rent. He was paid 4 weeks’ HB run on (I have proof) as well as me paying rent to the day I left (I have proof again). He was effectively paid twice for the same month’s rent.
Is this unlawful?
This had been going on for over a year with no response, until court proceedings started. Then they said there was a cheque for the original amount (£329). Would the court take their silence over the length of time into account?
The interest owed is £38, plus £35 in fees. I feel unwilling to give up £73. But then if it goes to court, I could get nothing and have paid even more! So should I take the original amount cheque and forgo the £73, or should I see it out to court?
And finally, would the fact they were going to pay the cheque count in court as admission of guilt/unjust enrichment?
1. No, your landlord should not get paid twice for the same period of time. If the payment was made by HB then you are entitled the return of the money you paid.
2. You don’t say whether they are just talking about a cheque or whether it has been sent to you. Until the money is ACTUALLY PAID you should continue with your claim. In particular do not withdraw the claim until the money has been received by you and any cheque has cleared.
3. If a cheque is received you need to write back and say that it is accepted as part payment of the money due to you and you await the balance due in respect of the interest and court issue fee.
4, The court will send you a form to fill in to get a ‘default judgment’. This means that you get a County Court Judgement (CCJ) on the basis that no defence has been filed by the defendant.
Assuming the landlord has not filed a defence but just sent you the money, then you fill in that form, credit the money paid by the landlord (assuming of course that the cheque has cleared – wait until it does) leaving the balance of £73 or whatever and send the form off for a CCJ to be entered for the balance.
It is unlikely that the landlord will want any CCJ entered against his name so he will probably pay up. If he doesn’t, then you will have a CCJ for that amount.
5. I would be very surprised if this case came to a court hearing for £73. This would only happen if the defendant filed a defence.
However if it did the Judge is not going to spend a lot of time going into whether the landlord has unjustly enriched himself etc (that is what interest is for). He will be pretty annoyed at court time being wasted for a dispute about such a small sum in the first place.
He will take the approach that the defendant has admitted the debt by paying it. So you will therefore be entitled to your interest and the court fee.
Note – watch out for payments being sent ‘in full and final settlement’ (people often write it on the back of the cheque).
This means that the payment is being made on the basis that if you accept it and bank the cheque you are accepting it in respect of all of your claim. So you will not then be able to claim any interest or costs.
If this happens you need to decide whether you accept the cheque, or not. If not then you need to you go back to the landlord and tell them you are not prepared to accept it in full and final settlement and want your interest and costs as well.
In that case don’t bank the cheque until you have reached agreement with them.
However people do often accept the full and final settlement payment just so they can bring an end to the matter and get on with their lives.