Understanding the Law
February 1, 2013
That background check

A woman bought a house in Pennsylvania and later heard from the next-door neighbours that a murder-suicide had occurred in the house. She and her two teenage daughters had relocated from California after the death of her husband.{{more}}

She sued the seller and the real estate agent for fraud and misrepresentation saying they made a deliberate choice not to disclose the information. She wanted the transaction rescinded and her money returned. The first court dismissed the matter and ruled in favour of the defendants, because there was no law, which required the sellers to disclose information on a murder-suicide. She appealed but the matter was dismissed on the same basis. Where there are personal preferences, it is the duty of person who buys a house to make specific inquiries about these, because the court would not be able to help.

There are many things that a seller could cover under the carpet. It is not until the buyer lives on the property that some flaws are uncovered, but they are not always the subject matter of court cases.

The straw man
I have seen the frustration in trying to recover monies from debtors. It is an exhilarating feeling when the judgment creditor could recover, but it is frustrating when the judgment creditor wins his case and cannot recover. A contractor accepts a considerable amount of money from his client to repair a house. He failed to finish the house. All attempts to reach him were futile. The homeowner sued the contractor and even though an order was made in favour of the homeowner, judgment debtor did not pay the money.

If the judgment debtor does not pay, at that point the judgment creditor must go back to court to have the judgment debtor orally examined about his ability to pay. It is not unusual for persons to hide their assets and to pretend to be a straw man. However, although tedious and time consuming, a person could get the consent of the court to trace the debtor’s assets.

The judgment creditor must use one of the enforcement procedures in the Civil Procedure Rules 2000 to get his money. Sometimes, the one that works well is part 53, where the judgment debtor could be committed to prison by a court order. If the judgment debtor does not do what the order requires him to do he would be in contempt of court and he may be liable to be imprisoned.

Again persons are warned against making deals with disreputable persons who would walk away with monies that do not belong to them and cause the owner so much hassle through the court system. Remember to do your research to find the truly dedicated and honest workman.

Rented premises

Another area of contention is that concerning rented premises. Very often a person occupies rented premises and then for some reason refuses to pay rent. The person also refuses to leave the premises. It is disconcerting for the landlord, who must now spend periods of time in court.

After a verbal notice to quit, a landlord can ask his lawyer to draft a formal letter of notice to quit. If this does not get the required action, the landlord could have many days of court battles. The court will order the tenant to leave, but there could be many more days in court trying to retrieve the rent owing. Again my advice is to choose your tenants carefully from the onset. Sometimes, these tenants have a bad record of defaulting. Do not depend on what you are told by the tenant. Do a background check.

Ada Johnson is a

solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com