To ask for urgent legal advice?

[worriedLL]

Posting here for traffic as legal board is slow and I am in a complete panic and cannot phone CAB or such until Monday.

DH inherited a commercial property 2 years ago which was empty at the time but he let it out to a local hairdresser, contract drawn up (by him) stating X rent every month, she was responsible for gas/electric/rates. This is in another town so DH used to go every 3 months to collect rent from her and mostly things were fine. Three months ago DH called in with her to get rent, she was busy with a customer and DH asked her to message him to say when was a suitable time. He heard nothing, messaged her, no response. DH was admitted to hospital with cardiac issues and left the issue.

The past 2 weeks DH has been messaging/phoning her and no response. Today she texted to say she has been out of business for months, if DH had have called her he would have known and that she has left the keys with the neighbouring property. She is not intending to pay the last 6 months clearly as she ended to message with 'all the best for the future'.

I had a nosy on her FB page and she has moved to a new premises (under the same name). From her posts it is obvious that she has been working all of the time, so certainly has not 'gone out of business'. I am terrified that she has not paid the rates bill for the best part of (at least) 6 months and we may now be responsible for this.

What should we do? DH has not replied yet as he wants to take legal advice. I have screenshotted her posts proving that she has moved and has been working all along. I am petrified about the rates bill as if she hasn't paid it the I'm worried that we will have to?

Can we take her to Small Claims to ensure that all of her bills are paid?

Any advice welcome. We really cannot afford any legal fees atm.

Worth taking legal advice. My input is I took someone to small claims court (a customer who didn’t pay) with a contract I got from the internet and I got all my money back. Obviously I don’t know the details of your template etc but just wanted to share my experience in case it gives you a little peace of mind between now and Monday.

I really appreciate all of the replies. Great idea about taking the DIY contract to a solicitor before anything else. I don't know whether to be incensed with rage or impressed with her CFery!

Just one last thing-she said it was DH's fault because he didn't come to collect the rent. I assume as per contract she should pay the rent whether someone is there to pick it up or not? Rent was cash in hand btw as she hadn't set up a bank account yet apparently.

Any contract between two parties, who willingly entered into it, is legally binding. It does not matter if a Solicitor looked over it etc. I would imagine that if she has not paid 3 months rent plus 6 months bills and rates that you would exceed the jurisdiction of small claims court and would have have to go through the courts system proper. Which would entail getting a solicitor and possibily a barrister too. Any costs, including legal costs, would be awarded to you if you are successful in your claim. If she agreed to pay the money, and didn’t, it’s a clean cut case and you would be successful. The only difficulty would be where she was genuinely out of business and you would therefore have to make a creditor in a liquidation proceeding. If her business is still operational there will be an award made in your favour which she will obliged to pay.

I would go through the small,claims court. You can do it online. Basically, you fill in the forms, submit the evidence, and they have a right to respond. When we did it, we didn’t actually see an actual court, but it was all done online.

You do have to,pay some fees upfront, but if you win, they have to pay it. If they then don’t pay, you can escalate the claim and send in the sheriffs/bailiffs,

Good luck.

Three months ago DH called in with her to get rent, she was busy with a customer and DH asked her to message him to say when was a suitable time. He heard nothing, messaged her, no response. DH was admitted to hospital with cardiac issues and left the issue.

The past 2 weeks DH has been messaging/phoning her and no response. Today she texted to say she has been out of business for months, if DH had have called her he would have known hmm and that she has left the keys with the neighbouring property. She is not intending to pay the last 6 months clearly as she ended to message with 'all the best for the future'.

well she was there 3 month(ish) ago

I doubt that him not turning up to collect rent makes any difference whatsoever, wrt what she (legally) owes.

You don't know if someone else paid for her holidays abroad.
Was it a busy hairdressers, did she have lots of quality equipment & colleagues to handle a high number of customers? I am afraid you might be flogging a dead horse hoping she has any money to pay you back. She sounds like a sole trader & a lean margins enterprise.

Did your husband declare all this income clearly, file self-assessment taxes that included it? I am thinking about what Pandora's box might be opened when you pursue the arrears.

Hiya OP, I’m going to try to drop you a PM. Let me know if you see nothing in the next 10 or so...

Contact a Judge Rinder! As long as you are not already pursuing a legal case, he can summon her to court. Go for it. X

Elide I have the exact date she moved premises as she advertised it on her business page. That has really annoyed me, she posts daily on her page (and has done since opening) but is telling DH she went bust and to suck it up. The fact she is taking him as a mug when he has been very considerate towards her grates even more.

YeOldTrout I'm sure she will cry poverty, but she seems to have a steady stream of work. She advertised for an assistant, I told DH I might apply just to see the look on her face.

I would take screenshots of all of her business posts as proof she has continued her business.

OP - I forgot to add - it’s very unlikely your DH not demanding rent would waive her obligation to pay rent. It would have to be explicitly worded I believe.

Do you have in the terms of the lease, the tenant is responsible for all the landlords legal costs?

Usually a commercial lease is six months notice, one month is unusual especially on a quarterly rent payment.

However if that’s what the terms say, that is what she agreed.

Standard exit terms are, notice, landlord sends in a surveyor to establish wants and repairs, these are negotiated and agreed. (They have 56 days to respond) the tenant has to pay these, or the guarantor. If either live in rented accommodation it’ll be hard to recover costs.

There is also usually a point in which the landlord can take back possession, around 14-21 days past overdue rent.

You could look into a winding up order on the business? You will need to get your costs formed up first.

Do you have a home address or was it the business address?

It’s always worth instructing a commercial agent, feed are usually 10% of the annual rent but worth a lot more and never agree a lease with a new start up without a deposit.

*fees

Please apply for that job, lol.

So rent was paid in cash to your DH? And I'm assuming your DH declared all of this rental income in his tax return? You don't want to start taking things to court or getting legal without making sure your side is clean.

Sounds all a bit flimsy - contract drawn up by your DH who is not a commercial property expert or agent, rent paid in cash etc.... 🤷🏻‍♀️

Everything is above board re tax and insurance etc, so no concerns there regarding taking it to court. The rest as you say is flimsy. She asked if she could pay cash as she hadn't set up a bank account but now I'm thinking she did it on purpose so that there is no official 'trail'. DH did issue her with a receipt each time.

Insurance is a good point actually. Check if it is recoverable from the tenant (normal lease terms will usually require it to be demanded, but that can still be done). Don’t get too excited about dilapidations if a) it was an internal repairing lease only and b) the tenant doesn’t have any money anyway. It’s not as simple as “the tenant has to pay them”. I think dilapidations are a part of the landlord and tenant relationship where the phrase “throwing good money after bad” is really demonstrated.

"Xenia on the contract it states her name as she didn't have a business name at that ti me. I've already done a CH check and cannot find anything under her name o r the actual business name"

So our starting point is working out who the contract is with. It sounds like she was a "sole trader". If she had a VAT number you can look at the up on line on an EU data base and get to the exact name and legal entity by the way but let us assume she was not VAT registered.

Second thing now we know what the contract said (in her personal name) is did that change by conduct - eg after that everything was done through a limited company such as payments and some kind of automatic assignment of the contract, moving it into a company names. Sounds not but worth checking what was on any invoices for the rent the husband issued if he issued any.

So so far to me it looks like she is personally liable for the rent., if instead the contract were with a limited company which has gone bust and she did not sign as a deed as a guarantor, then you might be in more trouble in trying to recover against an insolvent company.

The fact you did not rush to get payment will not stop its being due.

I would send her a special delivery letter stating clearly what she owes and for what giving her 7 days to pay and if she does not pay then issue proceedings. You may be supposed to wait longer under th new pre action detbt protocol but I would just get on with it. If the sum is under £10,000 then it is a small claim and neither can claim their legal fees from the other. Certainly is always worth speaking to a solicitor however. You can sue her on line using the court servdice's moneyclaims on line. She might defend it and there may be a hearing before a judge. If she does nothinng you can get a judgment and then send in bailliffs to recover it etc

If it wasn’t an FRI lease than the OP will really struggle, however the tone of your response quoting my response to the OP Knight was somewhat rude.

You need a solicitor to lo

Stupid phone. You need a solicitor to look at it. You need to be clear when the tenancy actually ended as this affects rates liability and rent owed. It potentially could even still be running if she hasn’t given proper written notice, especially if it’s 54 act protected.

There’s probably a claim against her which could be done quite cheaply once you’re clear on the legal position but only worth doing if she has the assets to pay.

He also can’t relet until he’s clear her tenancy has legally ended.

This is straight forward OP I would say you'll definitely get your money back. Do a free session with a solicitor then start a small claims case. I've had friends win cases with much less evidence than you have and once it all goes official she may pay up because she'll be scared of being investigated for tax at if she tends to be a "cash in hand" person!

OP, I'm not a legal professional but have worked for an estate agent. As far as I am aware, as long as the contract has been drawn up properly, then she or her guarantor are legally bound to pay the rent right up to the date that the notice expires, so technically if she has only given notice recently, she is liable up to a month from then.

It is not down to your DH to discover whether or not she is still in business and anyway, if she is still trading, then she is still in business, she has just moved premises. Unless she has actually gone bankrupt, she as a person is still liable for the rent, or her guarantor is.

He needs to take her to the small claims court to get the rent. He will need to produce the contract and the receipts and maybe a copy of his tax return, that proves the rental income has been received in the past.

The whole point of the guarantor is that they are legally liable for the rent if the tenant does not pay.

I don't wish to sound mean but your DH has been an idiot, maybe naive would be kinder, but he should have received the rent from her on a monthly basis, by BACS on a certain date.

I would advise him to use an agent in future, even if it is only to find a tenant and set up the contract and hold any deposit. he can collect the rent himself ongoing if he wants to, but please use a professional to set it all up, do an inventory and take photos etc before they go in.

What does the lease state re break terms and serving notice. If she has not complied and it is a proper legal lease she is liable until the lease is formally ended. This will rather be by notice stated, break terms or lease expiry.