Your Questions Answered - April 2017
- AuthorAndrew Turner
A debtor owes both me and another creditor, jointly, an unpaid debt. I have discussed taking court action against this debtor with my fellow creditor but he is unwilling to go down that particular route. Am I entitled to go it alone?
The other creditor should join you as a Claimant in the proceedings against this debtor. If he is unwilling to be a Claimant, he must be named as a Defendant to the action. This slightly counterintuitive position is dealt with in the Civil Procedure Rules at CPR19.3.
As a landlord of commercial premises, I am about to initiate a rent review process. Market rents have dropped in this area and I am a little concerned about the outcome of the review. The wording of the rent review provisions is a little ambiguous but I have been told that in the case of any ambiguity, there is an assumption that a review will be upwards only. Is that correct?
This is not correct. There is no assumption of an upwards only progression. Interpreting the rent review provisions will involve the same process that one adopts when interpreting any written contract. That will, in part, involve identifying the intention of the original contracting parties. There is a wealth of case law in this area including the recent Supreme Court decision in Arnold v Britton and you should take advice before triggering the review.
I recently served a notice on my tenant and delivered it to the tenant by hand to make sure that he received it. The tenant grabbed the notice from my hand which was contained in an envelope, screwed it up and threw it in the bin before I could explain what it was. The tenant then became threatening and so I was forced to leave the property. As far as I am concerned, I have served the notice and the clock is now ticking. Is that correct?
The situation is not quite as black and white as that. If your tenancy agreement specifies what constitutes valid service, then that contractual provision takes precedence. It may be that the tenancy simply requires you to deliver the notice to the property. If that is the case, you have complied with the contractual obligations and you have effected valid service. If however the tenancy agreement is silent in relation to the service of notices, I think you could potentially face an argument that you were put on notice by the tenant that he did not read the notice and did not know what was contained in the envelope. Clearly, it was difficult for you to explain the position to the tenant but I think it would be prudent to arrange for the notice to be re-served and this time to provide the tenant with a brief verbal explanation of what is in the envelope so that the tenant cannot argue at a later date that “had he known what was in the envelope, he would have acted differently”. Clearly, it might be wise to instruct a process server to deal with the re-service of the notice.
This article features in the Hughes Paddison Property Disputes Update. View the newsletter here.