Can I deal direct with tenant and jettison my agent? [Archive]

martin_n

03-01-2006, 12:44 PM

Sorry in advance for a long post.

A friend of mine is letting out her property through an agent for a three years contract since last year. The problem is that the agent has never paid her the rent on time (sometimes they did not pay for months), so she has to keep coming to the office and ask for the monies, and if she is lucky then they give her a cheque. They always come up with excuses and try to pass the fault onto someone else in their own company. I told my friend to drop the agent but she was scared. The last straw was just before Christmas when she went to their office and they handed her a letter and stated that they would keep all the monies because they realised that they forgot to take 15% from the rents for the services they provided which was incorrect as they already took it in the first few weeks of last year. Luckily, she still keeps all payment statements from them.

Neither myself nor her know that if she could sack the agent or not and the consequences of doing this. I am just thinking of helping her by writing an ultimate letter to the agent to warn them that they need to act properly before taking legal actions and hope that they would change. Can you please give some advice of what I should write in the letter. For your information, she does not have any written contract between her and the agent, only between her and the tenant with agent is the witness.

Thanks.

davidjohnbutton

03-01-2006, 12:51 PM

The lady should write recorded delivery to the agents a letter saying that she wishes to terminate the agreement for them to act for her with immediate effect and that the agents should within 7 days account for all monies received and spent or retained for their fees and remit the balance to her.

Let the agents then come back with any notice requirements - if however there is no written agreement, there is no reason why the dismissal should not be immediate. If there turns out to be a written agreement, or a deemed acceptance of the agents terms, then a notice period will be in there somewhere.

Also, the question as to which professional body they belong to should be asked in case a complaint needs to be referred to them! That in itself might galvanise them into activity!

MrShed

03-01-2006, 12:52 PM

It would seem quite obvious to me, generally speaking, that the agent is at least negligent, and is probably breaching their own terms also - in this case, the contract is already breached anyway. The way they are acting is ludicrous. I would wait for more specific advice though :p

martin_n

03-01-2006, 12:59 PM

Hi,

I appericated for what Davidjohnbutton said but did not want to cause her too much issue for now by terminating the agreement as I said in the post I would not know what she should do after that. Therefore I would prefer to write them a strong letter to let them know that she means business and see what they say.

She certainly has no written agreement with the agent.

Thanks.

MrShed

03-01-2006, 01:01 PM

With respect martin, I see no point in her keeping the same agent - they are obviously extremely lax, and will only cause her more problems in the long run. Despite the initial "upheaval", it will be better in the long run to take advantage of the lack of written agreement, fire them, and get a reputable agent to take over the property.

Paul_f

03-01-2006, 01:59 PM

Just follow Mr Shed's advice and appoint an NAEA/ARLA/RICS agent asap.

If the current agent is not conducting affairs to the satisfation of the landlord, and as you say there is no wirtten terms of business then there is nothing to worry about; give them the push! Continue with this agent and you might have plenty to worry about. You could have posted this in the lettings agents questions forum for more responses.

martin_n

03-01-2006, 03:49 PM

As I posted the issue below in another section of this forum and was advised by Pau F as it would be more appropriate to post in this section. So most of the replies I got from other section would sack the agent, so if I advise my friend to go down this route then could someone please just give me brief steps how she should follow i.e.:

1) How long does she need to give the agent the notice, considering that there is no agreement contract between herself and the agent???
2) Can she ask the agent to send all the remaining monies to her? If they refuse then does she has any rights to take the agent to court considering that there is no agreement as mentioned above?
3) I guess she needs to contact the new agent to inform the tenant that they would take over from the previous agent? Let me know if you have a different view on this???
4) Any other suggestions would be appreciated.

Thanks in advance.

----------------------------------------------------------------------
[Original post]
Sorry in advance for a long post.

A friend of mine is letting out her property through an agent for a three years contract since last year. The problem is that the agent has never paid her the rent on time (sometimes they did not pay for months), so she has to keep coming to the office and ask for the monies, and if she is lucky then they give her a cheque. They always come up with excuses and try to pass the fault onto someone else in their own company. I told my friend to drop the agent but she was scared. The last straw was just before Christmas when she went to their office and they handed her a letter and stated that they would keep all the monies because they realised that they forgot to take 15% from the rents for the services they provided which was incorrect as they already took it in the first few weeks of last year. Luckily, she still keeps all payment statements from them.

Neither myself nor her know that if she could sack the agent or not and the consequences of doing this. I am just thinking of helping her by writing an ultimate letter to the agent to warn them that they need to act properly before taking legal actions and hope that they would change. Can you please give some advice of what I should write in the letter. For your information, she does not have any written contract between her and the agent, only between her and the tenant with agent is the witness.

Thanks.

Sheila Harmon

09-01-2006, 10:28 AM

Look on the paperwork she received when she first let out her property, there must be some Terms of Business or Conditions of Engagement or something similar to that to refer to that would tell her how much notice they would require to stop using them. Usually, agents require three months' notice. Quite honestly, I think I would go straight to the tenant and ask that they pay the landlord direct and stop paying the agent - that's the first thing I would do. It sounds like the contract is between the landlord and the tenant not the landlord and the agent - in which case, just cut out the agent. I would then write a letter to the Agent saying that because of all these instances, and you should list them, saying that because of their inefficiency, non-payment of rent and withholding monies and that they are just not doing the job which they were employed to do, and receive the money straight from the tenant. Just get rid of the agent - they sound highly inefficient and completely avoidable at all costs and should be sacked!

Paul_f

14-01-2006, 02:20 PM

I have put come answers here in red so that you might be able to grasp the legal positionLook on the paperwork she received when she first let out her property, there must be some Terms of Business or Conditions of Engagement or something similar to that to refer to that would tell her how much notice they would require to stop using them. Usually, agents require three months' notice. There is no requirement as yet for an agent to give a landlord any written terms of business, so without one the landlord can terminate it immediately without notice.Quite honestly, I think I would go straight to the tenant and ask that they pay the landlord direct and stop paying the agent - that's the first thing I would do. It sounds like the contract is between the landlord and the tenant An AST is between these two people.........not the landlord and the agent .........but a terms of business (if it had exisited) would be between the last two!- in which case, just cut out the agent. I would then write a letter to the Agent saying that because of all these instances, and you should list them, saying that because of their inefficiency, non-payment of rent and withholding monies and that they are just not doing the job which they were employed to do, and receive the money straight from the tenant. Just get rid of the agent - they sound highly inefficient and completely avoidable at all costs and should be sacked!Yes! I do agree with this!

martin_n

16-01-2006, 11:06 AM

Thanks Sheila Harmon and Paul_f. I passed your advises to the lady and she contacted the tenant directly and the rent is currently paid directly to her which is good news. I am helping her to write a letter to the agent to terminate their services.

Thanks.

martin_n

17-02-2006, 02:01 PM

Hi,

I raised the question below quite a while ago and followed the recommendations from various people below and now the tenant is paying the rent directly to the lady which is a good news. However, the lady sent the agent two letters to demand the outstanding monies back but they did not response, she has just sent another one today and gives them two weeks to sort it out. I guess they will ignore again so she has to take legal action against the agent.

As she has never don't this before and the oustadning monies is around £3000, so if she hires a solicitor then by the end she would not have much left. Could you please recommend the best way she should approach so hopefully she would get something back.

Thanks in adavnce for any adivce.

Energise

17-02-2006, 02:54 PM

You can make a claim yourself through the county court (you can do it online) for the amount of money owing you wont need a solicitor as it would almost certainly be allocated to the fast track.

Steve C

17-02-2006, 03:24 PM

I think you will find it is the Small Claims Track and not Fast Track, but that’s by the by. Cost to issue would be £120 and there would be another fee if you need to fill out the allocation questionnaire.

One trick that has helped me in the past, is to fill out the forms as though you are going to file them, (you can download them from the court service web site,) then send a copy to the other party saying that you will be starting proceedings if they have not paid the monies that they owe. It can sometimes act as the kick up the behind that jolts them into doing something.

martin_n

17-02-2006, 03:50 PM

Thanks for the replies.

She believed that they still owed her £3000 (she also mentioned in the letter) but because they did not reply to any of her letters so if it turned out they owed her like say £2000 then does it do her any harm??? The reason I ask this because they never paid her properly so she had to work out by herself.

Thanks.

Steve C

17-02-2006, 04:28 PM

If she issues for £3000 and they think it only £2000, they have the chance to say so in their reply. She can then accept the £2000 if she wants. If she does ask for £3000 and it is only £2000 and they do not reply to the summons, she can ask for judgement by default for the full £3000. If it does go to trial, she will need some proof of what is owed or be able to show how the monies she is owed is made up.

I have an interesting situation at the moment where I am suing ex-tenant and guarantor. Ex-tenant has replied to summons, but guarantor has not. If he, (guarantor,) has not by Tuesday, I will be asking for judgement against him. I think that that he is thinking that if she at last starts to deal with the sh!t she left, he will be off the hook. Not so.

thomas1

11-07-2007, 03:42 PM

Hi,

We have a property being managed for us and have done for 11 months of a 12 month AST.

The long and short of it is, we are unhappy with the agents and would like to change to other managing agents, however the tenants are happy and would like to stay.

Are we under an obligation to continue paying the original agents if we choose to use others after 12 months?

Any thoughts would be appreciated.

thomas1

sharemaster2

11-07-2007, 04:19 PM

Look at the contract you signed with the agents, once the 12 months is over, let the agents know that you do not want the HOUSE managed by them anymore. I suggest you give them notice of this plan as soon as possible before the 12 months is up.

Agents being agents will try to make it hard for you and may even want to charge you some sort of release fee. This is where you need to reffere to the contract you signed with them. Note, Agents are never happy to loose money so beware of some sort of fight from them.

Good Luck;)

thomas1

11-07-2007, 05:56 PM

Many thanks, i have read the contract but was wondering on the legalities of a managing agent trying to keep possession (as such) of the tennants they introduced, after 12 month's.

Funnily enough, they didn't introduce the tennants, another agent introduced them, and when we didn't want to lower the price they went to another agent (who didn't lower the price anyway) and signed a lease!!

Tah for the advice, and thanks for the luck.

Thomas1

Bel

20-07-2007, 11:21 PM

The letting agreement concerns the LL and the T. The agent only acts on behalf of LL and must follow his instructions.

48tr

02-12-2007, 01:02 PM

Hi, for the last 3.5 years I've had great tenants who (they tell me) have no desire to move out and I've no certainly desire to ask them to.

The agents I'm using cost me 12% and I now see no need to have them esp as the mortgage keeps going up!

What is the best way of giving the agents notice but keeping the tenants? Can I simply tell the agents I no longer require them and set something up directly with the tenants?

Thanks for you advise

48TR.

Colincbayley

02-12-2007, 01:07 PM

First things first, check your contract with the agent ( You may have a term in there saying that you have to pay them for as long as the tenants are in the property )

If not, then check to see how much notice you need to give the agents, then do so in writing, send a letter to your tenants to confirm your contact details ( S.47 & S.48 1988 housing act ) and make arrangements for them to pay the rent to you direct.

As well as looking at the savings that can be made by cutting out the agent, now is a good time of year to look at all the costs that go with renting a property (Mortgage, Insurance, Agents, Maintenance ) to see if you can make any further savings.

Good luck.

Paul_f

02-12-2007, 11:03 PM

First things first, check your contract with the agent ( You may have a term in there saying that you have to pay them for as long as the tenants are in the property ) that's not enforceable so ignore it

If not, then check to see how much notice you need to give the agents, then do so in writing, send a letter to your tenants to confirm your contact details ( S.47 & S.48 1988 housing act ) and make arrangements for them to pay the rent to you direct. good advice

As well as looking at the savings that can be made by cutting out the agent, now is a good time of year to look at all the costs that go with renting a property (Mortgage, Insurance, Agents, Maintenance ) to see if you can make any further savings.

Good luck.You can cancel your contract without fear or favour and you are only required to give "reasonable" notice which should be no more than three months. The OFT (via your local TSO) should be able to advise you that any more might be considered too long.

Bel

19-12-2007, 05:51 PM

Paul_F; if you check back on this thread, can you please comment where you get your information regarding the OFT on three months notice specifically to letting agents, or is that a general rule?

If the LL has more than one property, is he still a consumer as he is "in business"? He may not have protection of unfair terms legislation.

If the LL terminates "early", there may be "deferred charges" to pay on cancellation eg if the cost of the tenant find part of the service was spread over the fixed term of the tenancy, as part of the management fee.

Medieval Messenger

02-03-2008, 02:09 PM

I'm an old landlord but new member, so go easy on me :)

I informed 2 months ago my agent by email that I'm terminating my letting agreement with him....(Due to having tolerated enough crap from him). At the time, he said nothing to my email, however, just a few days ago, he sent me an email stating I had to give him 3 months notice and it needed to be received within 24hrs and sent registered post or it wasn't valid.

Knowing that it was impossible for me to do that, as I am currently travelling, he is basically trying to tie my hands with the flat to cause me inconvenience. Can anyone suggest the best course of action for me to take, ie, give him written notice, simply stating "our Agreement ends at the end of this tenancy", ignoring his claim for 3 months written notice. I have decided to consult a Solictor, however, I'd like to know if anybody has had a similar experience and how was it handled or at least would anybody know what my position would be if I gave him less than 3 months notice.

Thanks in advance

Colincbayley

02-03-2008, 02:50 PM

What period of notice does it state in your agency agreement with this chap? If the agreement is silent on the matter, then you do not have to give any notice at all!

Medieval Messenger

02-03-2008, 02:57 PM

Colincbayley

02-03-2008, 03:01 PM

Thanks Colin...But this is where I dropped the ball.

I do not have a copy, I did all the paperwork with his predecessor 10 years ago and did not retain one - To be honest, don't even think we signed one, as everything was always by email contact. However, in the event we have and it clearly states 3 months, do you think he can hold me to this?

I have decided to go to his office and demand a copy, just wondering what position I'm in.

10yrs back, with his predecessor, perhaps he hasn't got a copy either!!

I would play it another way, ask him where in your signed agreement it states that 3 months notice is required, hence you are asking HIM to prove his point. That way you will not be showing your full hand ( i.e. you do not have a copy of the agreement )

I would have also thought, that the agents remarks saying that the notice must be received within 24hrs is probably waffle, as is the part about recorded post!! If you have already given notice, then you have given notice, the agent might be able to insist on 3 months, but I don't think he can say the beginning of the notice period must start again.

However, if it does say you are required to give 3 months notice, then that is what you have agreed to do.

Medieval Messenger

02-03-2008, 03:06 PM

Thanks Colin

I did exactly that 4 days ago and he hasn't responded. I will be walking into his office next week to demand a copy. If there is one there, then can I give notice from mid-month to mid-month or does the notice have to start at the end of the month. I'm sure the contract will not stipulate this but want to get him out of my hair asap!

Colincbayley

02-03-2008, 03:09 PM

Medieval Messenger

02-03-2008, 03:20 PM

Thanks again Colin...It seems I wasn't clear on what I was asking. I wanted to know, IF there is a 3 month stipulation, can I give notice the day I walk in the office, ie, on March 14th so the end of the 3 months would fall on June 13th or would I have wait until the end of the month, which would then allow the 3 months to go to June 30th?

I'm quite sure the contract will not stipulate which day in the month notice should be given (even if it does say 3 months are required) so wanted to know if I have to give 3 months notice, could I give notice as soon as poss.

Poppy35

02-03-2008, 04:16 PM

another point is that if your agent has not fulfilled his duties properly then surely you can cancel your agreement with him on this basis, perhaps if he has not paid u on time, done inspections etc. I personally would ask for EVERYTHING paperwork wise from him, inventory, gas safety check etc as there might be another way of getting out of your contract (should there be one!)

good luck.

As a LA myself he should be doing everything in his power to keep you as a client and not just let you walk away!

Medieval Messenger

02-03-2008, 08:50 PM

Paul_f

02-03-2008, 10:46 PM

It's up to the agent to produce his copy of the "contract" in order to uphold its content, not the other way round.

An oral contract is open to interpretation and the consumer will always have the benefit of this.

Medieval Messenger

04-03-2008, 05:19 AM

Thanks Paul and thanks all for the advice re: The Letting Agreement.

My other dilemma is that my agent wrote a clause in my Tenancy Agreement, which despite trying to get my head round it, is not clear. It's important that I get this right, so could someone please explain (upon reading the clause below), IF I wanted to serve a s.21 notice on March 14th, do I put the following dates on it:

1) Date Notice is served: March 14th 2008
2) Date of Expiry of this notice: after 31st May 2008

The reason I ask is because my agent says the date it is served must be March 31st, otherwise it's invalid. I wish to ensure he serves it on March 14th 2008, so please advise. Here is the clause:

AFTER THE EXPIRATION OF (TEN) calender months of the said term namely on or after the 31st MARCH 2008 the Landlord or the Tenant as the case may be shall each have the right to give notice to determine the term hereby created by the one giving to the other as the case may be not less than TWO CALENDAR MONTHS NOTICE in writing to that effect save that such notice as aforesaid shall not become effective at earliest before the 31st MAY 2008 and upon the expiration of such notice this agreement and everything herein contained shall cease and be void subject nevertheless to the rights of the parties hereto in respect of any antecedent breach of any of the covenants herein contained

My Letting Agent has a tendancy to incorrectly quote the law, when trying to cover his tracks. So I'd like to make sure I have something clear, concise and most importantly correct.

jeffrey

04-03-2008, 09:59 AM

Distinguish between the AST clause and a section 21 Notice.
AST clause allows either party to terminate early. If used, compliance with clause's requirements is essential. Notice can be served only after ten months, i.e. not before 31 March.
Section 21 allows L to end tenancy, at expiry of term or later. So your dates (3rd paragraph) are OK. Notice can be served at any time during/after term, in fact.

Medieval Messenger

04-03-2008, 02:22 PM

Thanks for your response Jeffrey. A little more clarification required, please be patient with me...:) These questions may seem stupid, that's because they are but as a layman, I need a clear understanding

[QUOTE=jeffrey;65983]Distinguish between the AST clause and a section 21 Notice.
AST clause allows either party to terminate early. If used, compliance with clause's requirements is essential. Notice can be served only after ten months, i.e. not before 31 March. "If used????" does this mean, as the clause is in the agreement, I MUST put on the s.21 notice, the dates below AND physically hand it to my tenant on March 31st, 2008 (not before) as to avoid being non-compliant with the clause? If this is not what it means, then please elaborate. I have been advised to put the dates below on the s.21 notice but hand it to tenant on March 14th, is this possible?

Date Notice is served: March 31st, 2008
Date of expiry: After May 31st, 2008

Would REALLY appreciate, some peace of mind on this

jeffrey

04-03-2008, 02:29 PM

Not quite!
Date Notice is served = date Notice is served. That, as I explained, could be any date and so not necessarily '31 March'. If you serve on 14 March, that's the date of service- innit? The clause's wording is irrelevant.
Provided that you serve s.21 Notice before 31 March, it will take effect after 31 May.

Bel

01-04-2008, 05:31 PM

If an agent 'falls out' with LL 1 who owns 50:50 with LL2, and LL2 wants to continue with agent, if the agreement is silent can LL 1 fire the agent without consent of LL2?

jeffrey

01-04-2008, 10:15 PM

If an agent 'falls out' with L1 who owns 50:50 with L2, and L2 wants to continue with agent, if the agreement is silent can L1 fire the agent without consent of L2?
I doubt it. L1 and L2 are jointly bound in contract with Agent (A) so they form a unity which neither L1 nor L2 can operate or terminate single-handedly (unless the contract gives them separable rights).

Poppy

13-06-2008, 04:38 PM

I'm thrown.

I used a letting agent (let's call them ABC) to find and reference tenants. Good tenants too I must say. The tenants and I signed a 12 month AST agreement. I paid the agent. I manage the property myself.

At the end of the 12 months, I was contacted by ABC seeking fees to renew the tenancy. I told them the tenants are happy to continue on a periodic basis, I have no need to get involved with you after a year.

I received an invoice from ABC for

a renewal fee for three more months at 10% of the rent
VAT
Tenancy deposit scheme fee (wot again?)

To counteract this, I wrote to ABC telling them to return the deposit to the tenants and that any contract between us is now ended. I also told the tenants to write asking for the return of the deposit.

My tenants and I signed a new AST agreement not using ABC's at all.

This is the clause ABC are citing in my contract with them a year ago:
ABC commission is 10% of the total rent payable for the entire length of the tenancy stated in the tenancy agreement payable in advance at the commencement of each tenancy and/or extension or continuation.
How do I shrug them off purleeeez? I'm wondering what kind of mistake I've made here. They want to keep reaping fees for doing nothing! They're making me feel grim!

agent46

13-06-2008, 04:44 PM

I'm wondering what kind of mistake I've made here.

I'm not being at all flippant when I say this, but the mistake you have made is failing to read a contract before you signed it.

There is a case about to be heard in the High Court between the OFT and Foxtons concerning the fairness and enforceability of these terms, but until and unless that case is heard and, strictly speaking, appealed, there is no binding case law on the matter.

My view is that so long at the term is clearly drafted (as this is) then there is nothing wrong with the agent claiming a fee when a tenancy continues.

islandgirl

13-06-2008, 05:10 PM

I would look at the term and try to argue that the entire length of the tenancy stated in the tenancy agreement was 1 year and that it is ended and you have paid. Your new AST is neither a continuation nor an extension (it is a new AST between different parties). Worth a try?!

agent46

13-06-2008, 05:18 PM

Your new AST is neither a continuation nor an extension (it is a new AST between different parties). Worth a try?!

Where does OP say that it is between different parties?

It seems that the tenancy is between the same parties.

kayak

13-06-2008, 05:37 PM

I'm not being at all flippant when I say this, but the mistake you have made is failing to read a contract before you signed it.

There is a case about to be heard in the High Court between the OFT and Foxtons concerning the fairness and enforceability of these terms, but until and unless that case is heard and, strictly speaking, appealed, there is no binding case law on the matter.

My view is that so long at the term is clearly drafted (as this is) then there is nothing wrong with the agent claiming a fee when a tenancy continues.

Whilst I can see your legal point of view, and I am sure you are correct or at least have a strong case, I cannot see how you consider there to be nothing wrong with this clause.

So, if I offer a let only service which Poppy seems to have opted for for lets say 50% of the first months rent (I charge substanitally less than that, as a side point) for a £1000pcm let. Then I charge Poppy £500 and pass the management over to her. Then at the end of the fixed term (let's presume 12 months), the tenants want to renew so I am entitled to charge Poppy £300 as a renewal fee?! (Assumming a 12 month let).

Personally I would't be that excited about holding a deposit for a property I didn't manage due to check out, on-going deductions etc etc but even so this fee seems a little steep to say the least - I would do it for £50 if they were my tenants and hope that the LL came back to me when they needed new tenants or for another property. I guess it isn't the fee that I find hard to accept but the fact that Poppy would be forced to pay it even if she wanted to arrange her own AST.

As for a TDS fee - I would want some justification on that.

Kind regards,

John

islandgirl

13-06-2008, 05:54 PM

yes agent you are right (sorry) but I would still argue that it is a new AST therefore not a continuation or extension as specifically stated. Maverick - you would not hold the deposit as I understand it - the tenants will get it back and give it to the OP who will themselves place it in a scheme. I do not thing the agent is being expected to actually do anything (except enjoy the dosh!)

kayak

13-06-2008, 07:03 PM

Apologies, what I meant, is that I try to avoid holding deposits where I am not managing the property, as if I have no involment with the property in terms of damage, check out's etc, it is hard to deal with any ADR process.

John

Ruth Less

14-06-2008, 12:49 PM

I've said this before on a thread where the tenant was being asked to pay the agent's fee for the rest of the term where the tenant had asked to leave early. The question was why do landlords sign up to Agent's fees structured in this way for a let only service ... Especially when there are more sensible agents like MPM about. Let's hope the publicity over the Foxton's case makes landlords a bit more aware and more picky what they sign :)

agent46

14-06-2008, 01:20 PM

yes agent you are right (sorry) but I would still argue that it is a new AST therefore not a continuation or extension as specifically stated.

I think the words "payable in advance at the commencement of each tenancy" cover new tenancies as well.

Whilst I can see your legal point of view, and I am sure you are correct or at least have a strong case, I cannot see how you consider there to be nothing wrong with this clause.

I believe there is nothing wrong with such an arrangment because:

(a) In principle there is nothing legally or morally wrong with renewal fees

and/or

(b) The parties in this case have entered into a contract.

and/or

(c) It is morally wrong and legally impermissible for a party to seek to "wriggle out" of paying the sum due under the contract simply because they have been reckless in signing a document that they have failed to read.

kayak

14-06-2008, 01:39 PM

Thanks Ruth,

Yes I agree completely with your sentiments. If I only manage to get half of the rent, then I only make half of my commission for that month. That way my LL's know that I am chasing my tenants hard as it is in both of our interests. It would be very easy for me to invoice my LL's and do nothing.

Then again from a pure business sense, I can see why they add all these terms in but repeat custom must be a little low..!

Kind regards,

John

kayak

14-06-2008, 01:41 PM

I would advise anybody experiencing the problem of renewal fees similar to this is invite the agent to pursue the matter through the courts. The Foxtons case will take years to resolve.

Having pretty much no legal knowledge I would be interested in knowing how this would go.

The problem is, surely if you agree to certain terms then you are bound by them, and can't just decide they are a little expensive a year later.

From my other posts you can see I don't support these charges but I just don't see how you could get out of them.

Having said that there always seems to be the term 'OFT' floating around, but what do they actually do?

Kind regards,

John

agent46

14-06-2008, 01:56 PM

Having pretty much no legal knowledge I would be interested in knowing how this would go.

The problem is, surely if you agree to certain terms then you are bound by them, and can't just decide they are a little expensive a year later.

From my other posts you can see I don't support these charges but I just don't see how you could get out of them.

I think the LL has a weak case and would probably lose, although no doubt a certain person will probably be along anytime soon making unsupported assertions that such terms are unfair (see below).

Having said that there always seems to be the term 'OFT' floating around, but what do they actually do?

The Office of Fair Trading.

In the realm of "Unfair Terms", they issue Guidance to be used in interpreting the Unfair Terms in Consumer Contracts Regulations 1999 and they also have the power to apply for declarations that terms fail the test of fairness under the Reg. They can also apply for an injunction to prohibit any business using the same terms.

Regrettably,

(a) The Guidance represents an extremely extravagant and occasionally fairly bizarre reading of the law.

(b) The Regs (and the associated Guidance) seemed to have been seized on by some people, (almost all of them non-lawyers, who should perhaps stick to their usual area of expertise), as some kind of trump card which can be used to defeat any and all inconvenient contractual terms.

kayak

14-06-2008, 02:32 PM

Yes I would have thought the LL would lose too, not because of any legal knowledge but just realistically how could a LL win when they had a chance to agree to the terms.

I did know what OFT stood for, and I was being very dry and referring to what you said about the terms being deemed unfair, not really to anything said on here but just in general that I have never heard of a term being deemed unfair by the OFT in lettings, although I am sure it must have happened at some point.

It does seem that if I can get my tenants or LL's to agree to terms then realistically they will have to stick to them (inside the law) unless they want to take me to court to get the OFT to overturn them.

To clarify, just in case I have some clients reading this, I am not thinking of doing this, it is just to make a point!

Kind regards,

John

Esio Trot

14-06-2008, 07:42 PM

The Office of Fair Trading.

In the realm of "Unfair Terms", they issue Guidance to be used in interpreting the Unfair Terms in Consumer Contracts Regulations 1999 and they also have the power to apply for declarations that terms fail the test of fairness under the Reg. They can also apply for an injunction to prohibit any business using the same terms.

Round our way, our local trading standards office have taken the view that agency agreements between landlords and agents are business to business agreements, and therefore do not come under the consumer regulations.

I know this as a landlord tried to wriggle out of renewal fees, and for the reason above TS wouldn't take an interest. The landlord did a small claims action, also claiming unfair terms in his evidence. The judge also rejected this and ruled in favour of the agent, saying to the effect that the agreement was not one of a supplier/consumer.

agent46

16-06-2008, 10:30 AM

Round our way, our local trading standards office have taken the view that agency agreements between landlords and agents are business to business agreements, and therefore do not come under the consumer regulations.

I know this as a landlord tried to wriggle out of renewal fees, and for the reason above TS wouldn't take an interest. The landlord did a small claims action, also claiming unfair terms in his evidence. The judge also rejected this and ruled in favour of the agent, saying to the effect that the agreement was not one of a supplier/consumer.

I'd agree with that view, except for the fact that IIRC, there has been a decision which the OFT or LL's could rely upon to show that LLs may (depending on the facts) be a "consumer" for the purposes of the Regs.

I can't recall the names of the parties in the citation, and I'm out of the door any minute now, but as far as I remember, the case concerned a small group of chaps from various professional backgrounds (solicitors, surveyors) who had formed a syndicate through which they, in effect, gambled on the stock market. They received some poor advice from a bank or financial adviser.....you can guess the rest.

Paul_f

16-06-2008, 10:59 AM

Landlords are probably considered consumers as they are not expected to have the specialist knowledge as that of a letting agent. In time however they might acquire that specialist knowledge and when they have a portfolio of property are indeed deemed to be "in business". You could then argue that this would be a business to business relationship which,as has been stated, is not covered by the unfair contract terms guidelines. This shows here are matters that need clarification.

Amer81

24-07-2008, 12:50 AM

I visit this forum now and then and find it an interesting read! I find it impossible to resist replying to this thread as I happen to work for Kinleigh, Folkard and Hayward.

As I'm sure you’re aware this is a common problem we face with landlords and have procedures in place to deal with it.

You were obviously happy to instruct us initially to find you new tenants (which I'm glad to hear you thought were good!), and signed our terms and conditions accordingly once you had read and agreed with them.

If you felt our fee structure didn't suit your requirements, why did you not mention this at the time? We are quite happy to negotiate (to a point!) prior to terms being signed, and often agree to a reduction should a landlord bring the matter up.

I'm sure you could have chosen another agent who would of agreed to a one off fee. Would you have received the same level of service and good quality tenants thought?

When valuing properties I always make it clear to the landlords that they should read all documents carefully first before signing and I also state that our fee is for the period the tenants stay in the property and not just for the initial term.

We have a dedicated renewals department based in our head office who are trained to get the best deal on behalf of our landlord. Our aim is to gain rent increases wherever possible (not always doable!). This department costs money to run and it is not a case of us just changing a date on a contract and resending. The process starts 3 months before the initial contract ends.

We do pursue landlords who fail to pay our fees and take them to court where necessary. The vast majority of the time we win (as long as paperwork is in order). You must take responsibility to honour an agreement once signed.

This must be the only industry where people sign a legally binding document and think they can argue the terms at a later date to suit themselves!

Poppy, I take it your property was let through the Peckham or Surrey Quays Office?

justaboutsane

24-07-2008, 07:35 AM

As this question pops up time and time again would it not be prudent of Letting Agents etc to HIGHLIGHT this clause and get the Landlord to sign it separately. That way you would save yourselves alot of hassle and the Landlord would not be able to winge and whine! Would save alot of courts time too...maybe then they could hear more eviction cases!

Lawcruncher

24-07-2008, 10:34 AM

ABC commission is 10% of the total rent payable for the entire length of the tenancy stated in the tenancy agreement payable in advance at the commencement of each tenancy and/or extension or continuation

I am unable to decide if that is careless drafting that fails clearly to express the agent's intention, or careful drafting calculated to hide the agent's intentions. But let's look at the words:

We can divide the clause in two:

A. ABC commission is 10% of the total rent payable for the entire length of the tenancy stated in the tenancy agreement

B. payable in advance at the commencement of each tenancy and/or extension or continuation

A tells us what is payable and B tells us when it is payable.

A is quite clear. There is no doubt about how the commission is calculated. Taking those words on their own there is nothing to justify an argument that commission is payable more than once.

B is governed by the word "payable". So we look at B to find out when the commission is payable. But B is sneaky. It coils back and tries to modify A and bring in extra commission. Its wording sits uncomfortably with A. For a start, if there is a continuation there will be no tenancy agreement. If there is no agreement how can the amount of commission (to be determined by referring to A) be calculated?

A first reading of the clause gives the impression that commission is payable only once. Anyone asserting differently runs into the contra proferentem rule.

I think we can also ask: What is the industry norm? I think it is that the commission payable to an agent when a tenancy is first granted is a one off "finding fee" and that, without further input, the agent is not entitled to any further commission. If an agent wishes to go against the norm he must set out the basis of his commission clearly, and make sure that nothing in the agreement conflicts with any representations made to landlords before they sign up.

The above clause is not clear and is unenforceable to the extent that it purports to make the payment of commission continue so long as the tenancy continues.

P.Pilcher

24-07-2008, 10:53 AM

Well - it looks like yet another case of a landlord signing an agreement without either reading or understanding it. I must say however that the terms concerning "original tenancy" are to me slightly misleading but these are insufficiently so to the legal mind of Agent 46 thus a landlord's court action will probably fail based on this argument. When I visit my solicitor -with regard to property purchase, she goes through all the clauses of the contract, any lease, all searches and so on. She is doing her job to ensure that I know exactly what I am signing for. Why don't agents do this with agreement terms which some consider to be unreasonable? Reason - they are embarassed about them and are used to trap landlords (who don't read) into financial obligations that they consider unreasonable. Thus they don't explain all their T's & C's to their new customers and enthusiastically threaten court action when the import of these terms surface.
Unfortunately, the moral is as always "read it all, including the small print and alter what you don't like." As this agent's representative has explained above, they, like most other agents, are prepared to consider variations to their terms of business, and I have posted about this before.

P.P.

Lawcruncher

24-07-2008, 11:31 PM

It pays to bear in mind that whilst the law allows a man to drive a hard bargain, it also (a) goes quite a long way to protect people from their own folly (b) recognises that those in the weaker bargaining position may need assistance and (c) dislikes those who are too clever for their own good.

I also think that there has to be something repugnant in the idea of an arrangement that one party can never get out of.

whapplehog

08-08-2008, 04:44 PM

Ok so I am new to this whole letting thing. Letting agent finaly got tennents in my property. V pleased except....
the tennant told the agent when he was going to move in, it being before the middle of the month I said he would have to wait a few days as he was only paying less than half of a months rent. Agent wouldnt tell tennant and so i had to accept a lower deposit ( agent has not me! )so as to make up the rent , which still was not for a full half month.
I still have not seen references and know that the agent never checked them.
I signed the tennency agreement but have not seen it since,I haven't seen any evidence that the tennant signed it ,nothing , no paper work at all.
The agent also told me that I would recieve my rent into my bank on the first of every month, the first payment took 15 days - and many phone calls!These and many other things have left me wondering.
What I need to know is , as I have lost all confidence in the agent and now deal with the tennent direct on all other matters, can I kick the agent into touch ? As I said I have never seen any paperwork, I never signed anything other than the tennancy agreement, where do I stand. I get on well with the tennant and am confident of a good relationship in the future.The only problems I have had have been because of or due to the agent.
Any ideas what i can do and how to go about it. What happens to the current agreement etc ?

porridge

08-08-2008, 05:26 PM

Paul_f

08-08-2008, 08:20 PM

There's plenty on this subject throughout the letting agent forum and this one. Read a few and try and possibly consider approaching the agent with your concerns.

porridge

08-08-2008, 08:23 PM

There's plenty on this subject throughout the letting agent forum and this one. Read a few and try and possibly consider approaching the agent with your concerns.

Then dump them, once a bad agent, always a bad agent

Paul, ny the looks of the problems raised, its a hell of lot bigger than "raising your concerns"

Paul_f

08-08-2008, 08:24 PM

Diplomacy works best

porridge

08-08-2008, 08:30 PM

Diplomacy works best

Not in this case Paul

If deposit not protected = liable for 3 x deposit amount + no S21 route

No signed inventory = property back in any condition with no right to deduct from deposit.

No signed AST = Too many to mention

If an agent hasn't done these basic things then they wouldn't look after any property im letting out.

whapplehog

09-08-2008, 11:53 AM

Wow :eek:, thanks for the help , I thought he was a little less than i'd hoped for , but it all looks as though he needs the 'old heave ho' . I will get on to him this week for all the missing paperwork and to find out what he is actually doing for his 10%.I do have concerns re the deposit scheme now thoughand whether he has done it through the right channels.

I shall continue reading through previous posts. Thank you all for your input.

AndyJohnson

23-08-2008, 09:22 PM

hey everyone

i'm in a bit of a pickle and was wandering what i could do here

here's the situation:
- agent promised me £1600 a month (this was done verbally as they have been a gd business partner for years)
- she hasnt paid for 4 months
- the tenent tells me that shes been receiving his housing benefit of £1,140 plus £200 from him.
- ive chatted to him and he's is on my side and would like to cut her out and re write a contract between me and him
- he has a contract at present between him and the agent

My question is, can we legally re write a contract between us two. Does the agent have any rights with the AST she has between herself and the tenent?

Thanks for all the help!

Paul_f

23-08-2008, 10:38 PM

hey everyone

i'm in a bit of a pickle and was wandering what i could do here

here's the situation:
- agent promised me £1600 a month (this was done verbally as they have been a gd business partner for years)net or gross?
- she hasnt paid for 4 months How much is the rent each month or week?
- the tenent tells me that shes been receiving his housing benefit of £1,140 plus £200 from him. Who's "him"
- ive chatted to him and he's is on my side and would like to cut her out and re write a contract between me and him
- he has a contract at present between him and the agent

My question is, can we legally re write a contract between us two. Does the agent have any rights with the AST she has between herself and the tenent?

Thanks for all the help!Too fragmented and lacking in detail to be able to post a decent answer

AndyJohnson

24-08-2008, 07:12 AM

ok here's a little more detail:

the agent agreed to pay me 1600 p/m for my 3 bed house

they got the tenents in - the tenents pay the agent 1340 p/m

agent hasnt paid me for 4 months while the tenent has been paying the agent!

agent has a contract between themselves and the tenent

what would you do in this situation?

ps: £1,140 of the rent is paid by housing benefit and £200 out of the tenents pocket.

Paul_f

25-08-2008, 06:53 PM

I've come across this type of arrangement before and it could constitute making a secret profit which is illegal, but.........................

If the agent has contracted to be the tenant and has presumably put in a clause that allows them to sub-let then it is likely to be above board. Sometimes the rent is "guaranteed" by the agent even when the premises is empty. I would say that entering into any such arrangements has more liabilities than attributes but still owners do it.

J4L

02-09-2008, 01:35 AM

I'll tell you how they do it, they only pay the Landlord something like 60% of the rental income. I think they offset it then to an insurance scheme.
It's risky but if you get a good tenant 40%pcm is a whack of a commission!!

janedunbury

21-12-2008, 05:41 PM

Hello all,

Does anyone have good ways of finding a tenant without paying large fees to high street agents, I reckon they just get their tenants from sites like find aproperty any way... please help!! I am rapidly getting in the red after the agents take their cut!!

Thanks

Jane

jax2503

21-12-2008, 07:10 PM

Hi,

Where is the property?

Jax

mind the gap

21-12-2008, 07:18 PM

Hi,

Where is the property?

Jax

And what kind of tenants are you hoping to attract - single professionals, students, families?

Sportingdad

25-12-2008, 09:57 PM

paying only 6% and it's putting you in the red ! clearly when (if) you did your business plan this was not factored in- and only 6 % thats why the agents getting you bad tenants, I imagine you want top dollar for a tip..

If you can do it even cheaper why don't you join findaproperty or rightmove, and advertise in your local press then ?.

My advice is write your property details on the back of a packet of fags and stick them in your local High Street newsagent window --5p a week will have then rolling in, and carry out the viewings using the crossbar on your bike oh and ask them for a referance...

Unfortunatley a lot of Landlords and Johnney come latelys need to wake up and factor in the proper costs and stop trying to cut corners.

sorry haven't posted for a while but in the Barrier Reef for crimbo:cool:

Poppy

27-12-2008, 11:28 AM

My goodness! If you think an agent's letting fee of 6% is large and you're going into the red as a result - you have chosen the wrong property.

I don't think there is anything particularly wrong with sourcing tenants from findaproperty/accommodationforstudents/spareroom/rightmove/whatever. Have you tried putting out your own advert?

packeted

28-12-2008, 05:37 PM

Gumtree, Loot, Facebook, student notice boards, hospital notice boards, gym notice boards, post offices, local papers, national papers and probably plenty of other places you can advertise.

Sportingdad

28-12-2008, 08:14 PM

Gumtree, Loot, Facebook, student notice boards, hospital notice boards, gym notice boards, post offices, local papers, national papers and probably plenty of other places you can advertise.
Well first it's the over the phone interview and a lot of Private Landlords have stated to me that only a third of viewings the would be tenants actually turn up. So be prepared for no-shows unless of course you invite them round to your house. :D

janedunbury

07-01-2009, 09:31 AM

I know, we rented over the xmas period that quick.. unheard of apparently!! I suppose people are bored at home and surfing the net for properties and they picked up the phone when most high street agents were closed. Checks came back via email in 24 hours.

I was impressed too! As far as premoting is concerned I am not sure what you mean? I just found a service, used it and told people about it, I gather there are a few other companies that do this service though so I won't mention the one I used again, sorry I didn't know you weren't allowed to be specific about companies :( ... this forum was very helpful though. Thx

Sportingdad

07-01-2009, 11:34 AM

Do you have the postcode of the property(don't need address) other than that I believe and are convinced this is a scam , I look forward to your response.

will davis

07-01-2009, 01:58 PM

I been reading this thread with much amusement so thought I would join in (as well as the forum) so hello all! It looks to me like the lady is self promoting her website, but a bit of digging around actually shows that Urbansalesandlettings have an add on the top banner of this very website, so scam it is not, and they have over 200 on RM and FAP! Anyway I think this is a good idea, I hate agents (and their fees!) so i will be using them cheers to the jane x

Sportingdad

07-01-2009, 02:07 PM

As I am concerned that this may be a scam to promote a website, can you answer 3 questions as it's not possible to rent out a property in such a quick time..

what date did the tenants move in ?

did you do the viewing with the tenants ?

the post code of the property ?

feel free to pm me, the only reason for the postal code is that I have access to a website that can see dates/time or if a property was put on the major portals..

louisetrav

11-01-2009, 09:32 AM

I have my property rented out, tenant is great, letting agent is not - holding onto money etc.

Want to sack the letting agent at the renewal of the tenancy and manage it myself but what happens to the security deposit as the letting agent has it registered?

I know I can register it myself but how do I get it back off the letting agents to re-submit it into my own registration with The Deposit Protection Service.

Any advice or information would be greatly appreciated.

Thanks very much.

Poppy35

11-01-2009, 06:00 PM

process would be to give your LA notice as per the terms and conditions you signed with them at start of contract.

Notify your tenant of this in writing too.

Get your tenant to sign a letter informing your LA that they are happy for their deposit to be released to you as L to protect.

You send this letter along with covering letter to your LA and this should be fine. This is providing that your LA actually holds the deposit and its just protected by the TDS.

If the DPS holds it, this is a slightly diff scenario but you will need to register account with DPS, and then get your agent to authorise refund to you, your tenant will need to authorise this also with their repayment ID. Then when you have received it, send it back to them to be protected. You can get the DPS to transfer it to your account but in my experience they want the earth from you and depending on who u speak to the goal posts change!

hope this helps.

poppy