Commercial Rent Arrears cost - do I have to pay?

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Tiggsmum
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#1 Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 19 Aug 2015 21:31

Hello all

We paid our commercial rent a few weeks late and by the time I had paid it we had received a Bailiffs letter. My son collected the post from work and brought it over to us so I'm not sure exactly when it was received. As I had paid the rent already I threw the letter away and phoned the agent telling them the rent had been paid and we would not be paying the £75 + vat fee.

We collected the post from work again today (I suppose I should explain we only work term time) and there was more correspondence from Parkinson Bailiff Services Ltd: a Notice of Outstanding Charge dated 7/8/15 and a Final Notice Before Referral For County Court Action dated 14/8/15.

My question is do I have to pay this charge? Although we were a few weeks late with the rent we had already paid it before we even heard from the bailiff! I feel its a tad overzealous of our landlord. We have been good tenants for over 10 years!

Advice please?

Thanks

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Schedule 12
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#2 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Schedule 12 » 19 Aug 2015 22:19

There is no VAT on the £75 compliance stage fee. HMRC say VAT is chargeable on disbursements and not on statutory fees. That is because bailiffs are performing a service to the creditor and not the debtor.

HMRC advisory: http://www.hmrc.gov.uk/manuals/vbnbmanu ... m#IDAKNJQH

You can report it to VAT fraud. http://www.dealingwithbailiffs.co.uk/Re ... TFraud.htm

If the bailiff was instructed before the debt was paid then the £75 (no VAT) is payable because regulation 5(1)(a) of the Taking Control of Goods (Fees) Regulations 2014 says - the compliance stage, which comprises all activities relating to enforcement from the receipt by the enforcement agent of instructions to use that procedure in relation to a sum to be recovered up to but not including the commencement of the enforcement stage.

It might be difficult to establish the precise date the enforcement agent was instructed. The bailiff company being instructed does not count. The bailiff can and do lie, knowing you have little else to prove otherwise. Put the bailiff on strict proof of the date he was instructed, otherwise the fee can be disregarded.

Enforcement can only executed at the address the warrant is addressed. LIkewise, enforcement can only commence if the debtor has been given notice, because paragraph 7(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) says - An enforcement agent may not take control of goods unless the debtor has been given notice.. Further, regulation 6 of the Taking Control of Goods Regulations 2013 says - notice of enforcement must be given to the debtor not less than 7 clear days before the enforcement agent takes control of the debtor’s goods.

If the business premises is closed empty during school holidays, then that is compelling evidence the statutory notice has not been effected until the premises has re-opened atr the start of the school term.

The documents you describe are not prescribed enforcement documents. The company might be actring as a common debt collector and does not have authority to take control of goods and is purporting to have authority. If that is the case, then the company commits an offence under section 2 of the Fraud Act 2006 which says a person is in breach of this section if he dishonestly makes a false representation, and intends, by making the representation to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss.
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Tiggsmum
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#3 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 19 Aug 2015 22:27

Thank you for your comprehensive reply. We cant remember what the actual letter was, we ignored it because we had already paid our rent. So what should we do? Pay the £75? As far we know no one actually visited, we just got a letter from the bailiffs saying they had been instructed. Does this change anything?

Tiggsmum
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#4 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 19 Aug 2015 22:30

They are threatening to start county court proceedings to recover their debt


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#6 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Schedule 12 » 19 Aug 2015 22:37

I dont see why bailiffs claiming to already have an enforcement power by virtue of charging £75 and VAT, needs to threaten court proceedings.

Nobody needs to visit to apply the £75 charge. The fact you were charged VAT indicates something amiss or fraudulent.

Did the letter look like this? http://www.legislation.gov.uk/uksi/2014 ... edule/made

If not, then it counts for nothing.

http://word.parkinsonbailiff.co.uk/rent ... ollection/ There is factual error in their webpage. It says - the cost set out by CRAR for this first stage of enforcement is £75 plus VAT, payable by the tenant

That is not correct. The law that sets the fees is under the schedule of the Taking Control of Goods (Fees) Regulations 2014

To be honest, it look like you are dealing with wide boys.
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Tiggsmum
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#7 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 19 Aug 2015 22:48

The first letter was only a single page an may have looked like the first page of that document in the link. The recent letter is titled Final Notice Before Referral For County Court Action. Amount outstanding £90 (presumably £75+vat) Re: Notice of Enforcement - Outstanding Charge. CRAR compliance stage fee incurred in accordance with Section 78 (3) the Tribunals, Courts & Enforcement Act 2007 and the Taking Control of Goods (Fees) Regulations 2014.

Due to non payment it is apparent court action may be necessary. We will allow one final opportunity to pay the outstanding balance within the next 14 days. If payment is not received in full, Court Action will be commenced and will incur further charges.

So do I let them take us to court? I don't want a CCJ registered against my business!

Tiggsmum
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#8 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 19 Aug 2015 23:08

jasonDWB wrote: It might be difficult to establish the precise date the enforcement agent was instructed. The bailiff company being instructed does not count.
We haven't had any communication from a single person, does this mean no formal agent has been instructed?
jasonDWB wrote:The company might be actring as a common debt collector and does not have authority to take control of goods and is purporting to have authority. If that is the case, then the company commits an offence under section 2 of the Fraud Act 2006 which says a person is in breach of this section if he dishonestly makes a false representation, and intends, by making the representation to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss.
If thats the case, can they still charge £75?

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Schedule 12
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#9 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Schedule 12 » 19 Aug 2015 23:14

1. Probably not.

2. No

Give it to trading standards quoting the law above. It looks like you have a simple fraudster.
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Tiggsmum
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#10 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 19 Aug 2015 23:29

I was going to email them this:

Dear Parkinson Bailiffs

Further to our conversation with you today. You told us that ********** have instructed you "to pursue” the costs after we advised them that as our debt had been cleared we would not be paying the enforcement fee of £75 + VAT

We received your letters informing us of your intention to start County Court proceedings if we do not pay. In order to prepare ourselves for this, please would you address the following points:

1. Please provide us with a copy of the original enforcement notice.

2. Please provide us strict proof of when your bailiff agent was instructed.

3. Confirm whether you are acting as a Debt Collector or a Bailiff

We also bring to your attention that we believe charging VAT on the compliance stage fee is unlawful. We have been advised that HMRC say VAT is chargeable on disbursements and not on statutory fees. That is because bailiffs are performing a service to the creditor and not the debtor.

We look forward to hearing from you.


Is there anything else I should say?

Tiggsmum
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#11 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Tiggsmum » 20 Aug 2015 10:42

Well I emailed them the above and received a reply this morning:

Thank you for your email. As discussed yesterday, PBS Ltd were instructed by ******** to collect overdue rent under CRAR. A notice of enforcement was issued and payment was subsequently made by you.

After reviewing your case, on this occasion we are prepared to cancel the fee owed, due to the time frame of the payment made to ********* and the issue of the notice.

Please be advised that your case is now closed.

Kind regards,

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#12 Re: Commercial Rent Arrears cost - do I have to pay?

Post by Schedule 12 » 20 Aug 2015 11:00

Well done and thanks for keep us posted.
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