Anyone any experience with small claims?

Ben6899
Ben6899 Posts: 9,686
edited February 2022 in The cake stop
Hi,

Anyone here any experience with small claims, anecdotally or professionally?

When we sold our flat last year, one bit of admin I missed was cancelling a Direct Debit to the freeholder for the periodic Service Charge payment. So a payment went from my account to the Service Charge account associated with the flat, when we no longer lived there.

In addition, our buyer asked for a retainer of some monies to do with something else on the flat we sold - a fair request covering some charges which may have raised their head after we had moved out, but which we were liable for. It was agreed the retainer would expire at the start of 2022, after which, in the event of no claim, the whole lot would be returned to my account.

I raised the erroneous payment with our solicitor as soon as I realised (a week later) and made it clear that if any claim was made on the retainer then it should be less the amount I had already technically given to the buyer. I made it clear also, that I was happy to wait until 2022 to keep things simple and see if any claims were made.

No claims were made (unsure why not after speaking with an old neighbour!) - the retained amount has been moved back to my account. I have chased our solicitor twice now (conscious we're no longer paying them!) to ask them to approach the buyer's solicitor about the additional, erroneous amount, but I'm not getting very far.

This is where small claims comes in. I think. In my mind, the case is open/shut, black/white however you want to describe something that is objectively clear. But before going to expense/hassle I'd like to be sure that there isn't an argument for "well you gifted them this money, if they want to give it back then they will. But they're not legally obliged."

I wouldn't honestly be overly bothered, but the buyer is a cuunt so I don't want to gift them anything!
Ben

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Comments

  • Ben6899 said:

    Hi,

    Anyone here any experience with small claims, anecdotally or professionally?

    When we sold our flat last year, one bit of admin I missed was cancelling a Direct Debit to the freeholder for the periodic Service Charge payment. So a payment went from my account to the Service Charge account associated with the flat, when we no longer lived there.

    In addition, our buyer asked for a retainer of some monies to do with something else on the flat we sold - a fair request covering some charges which may have raised their head after we had moved out, but which we were liable for. It was agreed the retainer would expire at the start of 2022, after which, in the event of no claim, the whole lot would be returned to my account.

    I raised the erroneous payment with our solicitor as soon as I realised (a week later) and made it clear that if any claim was made on the retainer then it should be less the amount I had already technically given to the buyer. I made it clear also, that I was happy to wait until 2022 to keep things simple and see if any claims were made.

    No claims were made (unsure why not after speaking with an old neighbour!) - the retained amount has been moved back to my account. I have chased our solicitor twice now (conscious we're no longer paying them!) to ask them to approach the buyer's solicitor about the additional, erroneous amount, but I'm not getting very far.

    This is where small claims comes in. I think. In my mind, the case is open/shut, black/white however you want to describe something that is objectively clear. But before going to expense/hassle I'd like to be sure that there isn't an argument for "well you gifted them this money, if they want to give it back then they will. But they're not legally obliged."

    I wouldn't honestly be overly bothered, but the buyer is a cuunt so I don't want to gift them anything!

    IANAL but is your claim not against the freeholder? they would then pursue the cuunt for the underpayment
  • Ben6899
    Ben6899 Posts: 9,686
    edited February 2022

    IANAL but is your claim not against the freeholder? they would then pursue the cuunt for the underpayment

    Thanks.

    My first avenue was contacting the freeholder. They said this happens all the time, and people go through their conveyancer (and buyer's conveyancer) to redress. But IANAL either.

    Like I said, I think it's black/white. But wary of the "gift" defence.

    Ben

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  • TheBigBean
    TheBigBean Posts: 20,794
    Your share of the service charge should have been calculated on completion. Assuming it was and this payment is indisputably an error, then I would contact the managing agent / landlord again and remind them that they are not able to retain money paid in error. Failing that contact your bank to see what their advice is. Direct debit comes with a load of responsibilities unless you mean a standing order.
  • Ben6899
    Ben6899 Posts: 9,686
    edited February 2022

    Your share of the service charge should have been calculated on completion. Assuming it was and this payment is indisputably an error, then I would contact the managing agent / landlord again and remind them that they are not able to retain money paid in error. Failing that contact your bank to see what their advice is. Direct debit comes with a load of responsibilities unless you mean a standing order.


    Thanks BB.

    Service Charge was calculated (pro rata'd to the day) and this was indisputably an error.

    It was a Standing Order. Does that affect me being able to contact the the landlord with the same reminder?

    I really appreciate all the advice.
    Ben

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  • ballysmate
    ballysmate Posts: 15,921
    Ben6899 said:

    IANAL but is your claim not against the freeholder? they would then pursue the cuunt for the underpayment

    Thanks.

    My first avenue was contacting the freeholder. They said this happens all the time, and people go through their conveyancer (and buyer's conveyancer) to redress. But IANAL either.

    Like I said, I think it's black/white. But wary of the "gift" defence.

    IANAL either but can't see this as being viewed in any way as a 'gift'. It went via DD ie it was taken, albeit erroneously.

    https://www.directdebit.co.uk/DirectDebitExplained/pages/howtoclaim.aspx
  • TheBigBean
    TheBigBean Posts: 20,794
    Ben6899 said:

    Your share of the service charge should have been calculated on completion. Assuming it was and this payment is indisputably an error, then I would contact the managing agent / landlord again and remind them that they are not able to retain money paid in error. Failing that contact your bank to see what their advice is. Direct debit comes with a load of responsibilities unless you mean a standing order.


    Thanks BB.

    Service Charge was calculated (pro rata'd to the day) and this was indisputably an error.

    It was a Standing Order. Does that affect me being able to contact the the landlord with the same reminder?

    I really appreciate all the advice.
    It's always your money which should be paid back.

    Standing order means that you paid it as opposed to them taking it i.e. the error was yours. I would still be hassling the managing agent, but it is worth asking your bank for the best approach. They may contact the recipient as well.
  • Pross
    Pross Posts: 41,033
    I made a claim and won as the other party didn't even respond. They still didn't pay the money owed and I ticked the box to get it looged as a default or whatever the wording is on their credit history but I suspect from what I found out about the person afterwards that I was probably just one in a long list. There were several options for getting the payment enforced but the amount was small and the hassle was disproportionate so I left it at that and never received the money.

    I suspect dealing with a business will be different, once they receive the paperwork my guess is they will either try to bully you with lawyers or just roll over and cough up. If they did challenge it and you won I should think it would be easier to get the money out of them.
  • laurentian
    laurentian Posts: 2,399
    has the cuunt also been paying the service charge to the freeholder? If so, free holder would have received twice the service charge that they are entitled to . . . it does seem pretty black and white.

    FWIW, I have had experince (successful) with small claims and the judge advised my "opponent" that it was my presentation of extensive contemporaneous documentation that was the main factor in me "winning". I don't know what documentation you may have to support your case (mainly emails in my case) but it could be worth you going over all of your correspondence etc to present as evidence - IME they seem to like that.
    Wilier Izoard XP
  • Ben6899
    Ben6899 Posts: 9,686

    has the cuunt also been paying the service charge to the freeholder? If so, free holder would have received twice the service charge that they are entitled to . . . it does seem pretty black and white.

    FWIW, I have had experince (successful) with small claims and the judge advised my "opponent" that it was my presentation of extensive contemporaneous documentation that was the main factor in me "winning". I don't know what documentation you may have to support your case (mainly emails in my case) but it could be worth you going over all of your correspondence etc to present as evidence - IME they seem to like that.


    The amount I paid erroneously will have reduced the amount owed by the buyer. So no double payment, but it's still black and white. It's my mistake, but the money was paid against the Service Charge invoice after exchange of contracts and all reconciling payments had been made and money had changed hands.

    I think my paperwork trail would be the contract documentation and my bank statement. I can no longer access the Service Charge account statement as it's no longer our property.

    I'm about to write to the freeholder...
    Ben

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  • Longshot
    Longshot Posts: 940
    Ben6899 said:

    Hi,

    Anyone here any experience with small claims, anecdotally or professionally?

    When we sold our flat last year, one bit of admin I missed was cancelling a Direct Debit to the freeholder for the periodic Service Charge payment. So a payment went from my account to the Service Charge account associated with the flat, when we no longer lived there.

    In addition, our buyer asked for a retainer of some monies to do with something else on the flat we sold - a fair request covering some charges which may have raised their head after we had moved out, but which we were liable for. It was agreed the retainer would expire at the start of 2022, after which, in the event of no claim, the whole lot would be returned to my account.

    I raised the erroneous payment with our solicitor as soon as I realised (a week later) and made it clear that if any claim was made on the retainer then it should be less the amount I had already technically given to the buyer. I made it clear also, that I was happy to wait until 2022 to keep things simple and see if any claims were made.

    No claims were made (unsure why not after speaking with an old neighbour!) - the retained amount has been moved back to my account. I have chased our solicitor twice now (conscious we're no longer paying them!) to ask them to approach the buyer's solicitor about the additional, erroneous amount, but I'm not getting very far.

    This is where small claims comes in. I think. In my mind, the case is open/shut, black/white however you want to describe something that is objectively clear. But before going to expense/hassle I'd like to be sure that there isn't an argument for "well you gifted them this money, if they want to give it back then they will. But they're not legally obliged."

    I wouldn't honestly be overly bothered, but the buyer is a cuunt so I don't want to gift them anything!


    There's a few points here.

    When you agreed the retainer with the buyer, did that relate to potential charges/costs raised by the Landlord? If so, that should have been dealt with directly between you and the LL with no involvement of the buyer.

    Whilst service charge payments should be calculated pro rata to the date that you sold the property, it is likely that this is part way through the service charge year and your actual liability for service charge would not be known until the reconciliation and production of final service charge accounts after the SC year end. usually, Any monies paid would be held pending that final apportionment calculation and the balancing exercise.

    From what I can see (and I could be missing something) the issue is between you and the LL, not the buyer. It's not normally a small claims matter in instances such as this - it's normally dealt with by the First Tier Chamber - what used to be the Valuation tribunal.

    You can fool some of the people all of the time. Concentrate on those people.
  • TheBigBean
    TheBigBean Posts: 20,794
    I would give the managing agents another go and say that you about to write prior to commencing further action. They may spring into life at that point.
  • Ben6899
    Ben6899 Posts: 9,686
    Thanks Longshot.

    As it happens, the retainer was for any additional Service Charge amount that came from the September annual reconciliation. We agreed (charitable IMO) to cover anything additional up to the retained amount ceiling, as far as January 2022.

    No claim was made on the retainer. So now that's back in my pocket.

    Now I am going after the amount that I accidentally paid right after the Completion statement had been drawn up (which of course included a Service Charge apportionment).

    I have written to the landlord/freeholder.
    Ben

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  • Ben6899
    Ben6899 Posts: 9,686
    Longshot said:

    From what I can see (and I could be missing something) the issue is between you and the LL, not the buyer. It's not normally a small claims matter in instances such as this - it's normally dealt with by the First Tier Chamber - what used to be the Valuation tribunal.


    It will affect the buyer though, I would imagine. Won't the landlord go after them for the then shortfall in the Service Charge statement/invoice?
    Ben

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  • Longshot
    Longshot Posts: 940
    edited February 2022
    Ben6899 said:

    Longshot said:

    From what I can see (and I could be missing something) the issue is between you and the LL, not the buyer. It's not normally a small claims matter in instances such as this - it's normally dealt with by the First Tier Chamber - what used to be the Valuation tribunal.


    It will affect the buyer though, I would imagine. Won't the landlord go after them for the then shortfall in the Service Charge statement/invoice?
    The costs should allocated as appropriate based on the sale date of the property. It should never be a three way issue (you/buyer/LL) - it should always be two distinct two way issues (you/LL and buyer/LL). This stuff is incredibly common and the agents should have standard processes for it.
    You can fool some of the people all of the time. Concentrate on those people.
  • Ben6899
    Ben6899 Posts: 9,686
    Yep, the Service Charge apportionment - as part of the Completion - was done properly.

    The erroneous SO payment was entirely my mistake and separate to any of the conveyancing. Just a bit of admin that slipped my mind in all the stress.

    I'm just thinking now, if the landlord pays me back the erroneous payment then all of a sudden there's a hole in the Service Charge statement for the property. So they'll go after the buyer.
    Ben

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  • Ben6899 said:

    Yep, the Service Charge apportionment - as part of the Completion - was done properly.

    The erroneous SO payment was entirely my mistake and separate to any of the conveyancing. Just a bit of admin that slipped my mind in all the stress.

    I'm just thinking now, if the landlord pays me back the erroneous payment then all of a sudden there's a hole in the Service Charge statement for the property. So they'll go after the buyer.

    that would be the very definition of win/win
  • Ben6899
    Ben6899 Posts: 9,686
    It would.

    To be honest, the more I think about it, I'd just like the money back so I can put it towards this lovely armchair I've seen.

    Any headache this passes onto the cuunt of a buyer would be a bonus!
    Ben

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  • First.Aspect
    First.Aspect Posts: 14,836
    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?
  • Ben6899
    Ben6899 Posts: 9,686

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    I think that is when Small Claims comes in?

    How much money are we talking about here?


    I'd rather not say.
    Ben

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  • First.Aspect
    First.Aspect Posts: 14,836
    Ben6899 said:

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    I think that is when Small Claims comes in?

    How much money are we talking about here?


    I'd rather not say.
    In terms of the amount, how far you pursue this will need to be weighed against the cost of pursuing it. Also factor in your time and the odds of success.

    I don't see how you have any cause of action against the landlord. How could they know what arrangement two other parties made between them?

    Then consider, what action has the tenant or landlord taken to cause you harm?

    Nothing, is my interpretation, but if anything not returning money they knew wasn't theirs (i.e. the same position as someone spending an erroneous windfall from a banking error or a 2 trillion pound refund, like the other day). But you gave money to the landlord, not the tenant, who was then charged less by the landlord, not you. So how could the tenant know?

    I think your best bet would be to explore your position as regards unintentional card payments. But even then, if your first port of call was elsewhere rather than the bank, I think you will struggle.
  • Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
  • First.Aspect
    First.Aspect Posts: 14,836
    edited February 2022

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
    Why was it incorrectly paid?

    As I say, they may do the right thing. But I don't see how they are obliged to.

    I mean if someone accidentally pays for my petrol at the local station having pointed to my car and pump number and I then drive off having been told by the petrol station owner that my petrol had been paid for, would that person get their money back?
  • Longshot
    Longshot Posts: 940

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
    Why was it incorrectly paid?

    As I say, they may do the right thing. But I don't see how they are obliged to.

    They are obliged to by law. This is money held on trust and the laws governing these matters are thorough and unambiguous.
    You can fool some of the people all of the time. Concentrate on those people.
  • Ben6899
    Ben6899 Posts: 9,686
    edited February 2022
    I really appreciate all the chat around this as well as the advice - sets expectations etc.

    I have written a very polite email to the landlord (which is the Local Authority, in this case).

    They may do the right thing. I may have to pursue it.
    Ben

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  • Longshot
    Longshot Posts: 940
    Ben6899 said:

    I really appreciate all the chat around this as well as the advice - sets expectations etc.

    I have written a very polite email to the landlord (which is the Local Authority, in this case).

    They may do the right thing. I may have to pursue it.


    If it's a Local Authority then there is a specific Ombudsman for them - https://www.lgo.org.uk/

    That would be a good place to start if needed.
    You can fool some of the people all of the time. Concentrate on those people.
  • Ben6899
    Ben6899 Posts: 9,686
    Man, I love this forum. Such a wealth of knowledge.

    If any of you ever need advice for building something enormous, I'll be happy to help!
    Ben

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  • First.Aspect
    First.Aspect Posts: 14,836
    Longshot said:

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
    Why was it incorrectly paid?

    As I say, they may do the right thing. But I don't see how they are obliged to.

    They are obliged to by law. This is money held on trust and the laws governing these matters are thorough and unambiguous.
    No I think the OP has that money held in trust back already. This was just a bill he paid by mistake. Completely separate issues to my reading of things.
  • Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
    Why was it incorrectly paid?

    As I say, they may do the right thing. But I don't see how they are obliged to.

    I mean if someone accidentally pays for my petrol at the local station having pointed to my car and pump number and I then drive off having been told by the petrol station owner that my petrol had been paid for, would that person get their money back?
    how about you cancel your season ticket at the football but accidentally make a payment to the club. Is it a windfall for whoever sits in that seat or should the club return your money
  • Ben6899
    Ben6899 Posts: 9,686

    Longshot said:

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
    Why was it incorrectly paid?

    As I say, they may do the right thing. But I don't see how they are obliged to.

    They are obliged to by law. This is money held on trust and the laws governing these matters are thorough and unambiguous.
    No I think the OP has that money held in trust back already. This was just a bill he paid by mistake. Completely separate issues to my reading of things.

    Correct. I have the retained money back already. There's an additional £~.~~ that I paid towards the Service Charge statement, in error.
    Ben

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  • First.Aspect
    First.Aspect Posts: 14,836

    Your problem is that the landlord hasn't made a mistake and you are asking them for money. They might help you, but they may quite reasonably decline.

    How much money are we talking about here?

    I can not see how they can "reasonably" refuse to return money that was incorrectly paid to them.
    I would expect a polite letter would see a return of the money, save any threats for later.
    Our managing agent was a local estate agent, if similar could you go and see them?
    Why was it incorrectly paid?

    As I say, they may do the right thing. But I don't see how they are obliged to.

    I mean if someone accidentally pays for my petrol at the local station having pointed to my car and pump number and I then drive off having been told by the petrol station owner that my petrol had been paid for, would that person get their money back?
    how about you cancel your season ticket at the football but accidentally make a payment to the club. Is it a windfall for whoever sits in that seat or should the club return your money
    The ticket is associated with the person, not the seat. This payment is associated with the flat, not the person.