Going from letting agency to private - urgent advice required

[CarolineJ]

Dear All,

I am actually in a similar position to someone else that posted on here, in that I am the tenant not the landlord, however he is staying with us until he goes overseas next month and I am trying to get this resolved as urgently as possible.

Our new landlord has just bought the property that we rent from an estate (letting) agency with us in it. Our tenancy agreement was due for renewal on 9th July 2006. They have been pushing us to commit to another year however the landlord and us (tenants) have agreed to have a tenancy agreement directly between us because the agency are simply misleading us and also getting money for doing next to nothing. We are going to report them (not sure to who) for a number of misleading things they have done to date but thats another story.

Our situation is this to date the landlord has signed nothing aside from the purchase related documents, i.e. nothing in terms of the tenancy.

Yesterday he called and advised them he will be terminating the contract with them, we then got a call from them saying we would have to vacate by 9th July and an inventory check etc would be carried out by them on this day.

My first question is this, if we are terminating the agreement and he and we are happy to enter into a private agreement - do we need to pack up and move out on the said day. Our landlord suggested that we "sell" our possessions to him for a pound (yes we do trust him!) on that day and he sells them back to us for a pound the following day - to get round the whole having to move our things out - now we (landlord and I) dont know the legal ins and outs in terms of do we actually have to leave and do our possessions actually have to be removed?

In addition to this the agents are trying th stiff our landlord for a 500 introductory fee, because he was introduced to us, thankfully we know he hasn't signed anything - can they still do this?

Also if we stay what are the implications in terms of our deposit with the agency - as you will appreciate I have a whole host of questions I need to resolve - as does Simon (new landlord) if anyone can advise us on what we can and cant do I would be so grateful as we don't know where to start, please feel free to contact me via contactcarolinej@yahoo.co.uk or I can provide our telephone number - we just want to do the right thing legally without it costing us our deposit or Simon 500 pounds or the need for us to move out one day and back in the next.

Confused of Dorset!


Caroline

[CarolineJ]

BTW if anyone would like to see what Simon (our landlord) has posted on another site please take a look at the following:

http://residentiallandlord.ipbhost.com/index.php?showtopic=640

Unfortunately I have had no replies here and he has only had one on this other site, so if anyone can help us please answer as we have 3 weeks until he goes overseas (indefinitely) and time is not on our side...

Thank you...

Caroline

[Worldlife]

Caroline I take it that your rental agreement is a standard Assured Shorthold Tenancy for six months.

Have you been issued with a S21 Notice Requiring Possession? If so what is the date of that notice and has it been signed (or issued) by your original landlord or the new agents?

Whether or not a S21 Notice has been issued I suggest you might consider writing to both the landlord and new agent stating you do not intend to leave the property until you receive a Court Order requiring Possession.

Confirm you are able and willing to continue the existing tenancy on a periodic month to month basis.

Suggest that as there seems to be a dispute between landlord and agent concerning continuation of the tenancy ask if they can agree an independent stakeholder to whom you can pay the rent pending resolution of their dispute?

You will also be willing to sign a new tenancy agreement once the contract arrangements between the landlord and agent have been resolved.

It seems that you and the landlord Simon have an amicable business arrangement. As you both seem to be worried by the actions of the agent, wonder if you both agree these suggestions, if followed, may be advantageous to you both and force the hand of the agent?

Perhaps others may post their views on my suggestions.

[CarolineJ]

Yes it is an AST.

I believe we have been issued with an S21 it is a document entitled "Property Inspection and Termination" and with it is a form we (all the existing tenants) are required to sign - is that the same thing? Given your advice should we complete this form confirming acknowledgement or would this conflict with your advice - i.e. the following paragraph?

Writing to both the landlord and agent advising we will not move out until we receive a court order sounds somewhat concerning to me - is this normal practice in such a situation - who and what is a stakeholder - is that an independant party in the situation and if so who would be a suitable candidate?

All we (the landlord and existing tenants) wish to do is complete the term of the existing agreement with the agents and then enter into our own one directly with the landlord - i.e. remain in the property. Can you tell me who we can go to for advice because as much as I (and Simon - new landlord who has owned his own property previously but never a buy to let with existing tenants in it) have looked we really are at a loss as to who we go to and what we do, we dont wish to do anything illegal we just want to remove the agents out of the equasion and remain in the property.

Thank you for your reply.

Caroline

Perhaps others may post their views on my suggestions.

[Worldlife]

Yes it is an AST.

I believe we have been issued with an S21 it is a document entitled "Property Inspection and Termination" and with it is a form we (all the existing tenants) are required to sign - is that the same thing? Given your advice should we complete this form confirming acknowledgement or would this conflict with your advice - i.e. the following paragraph?

It is important to check this document carefully. Although a Section 21 Notice is not a prescribed form it must contain certain information. If you do a search of the forums here for Section 21 you will see what is required and what can go wrong.

There is no reason why you should acknowledge this form and it is probably advantageous not to do so. Leave the worries of what to do next or whether the notice has been correctly served for the new agent! Even if the agent has given a valid notice of entry you could refuse entry by just not being there or answering at the appointed time. If the agent uses a key he will be guilty of unlawful entry. (If it happened you were in the bath or shower at the time then there might be a double whammy for the agent if you found him on your property - in fact this sounds a good option!)



Writing to both the landlord and agent advising we will not move out until we receive a court order sounds somewhat concerning to me - is this normal practice in such a situation - who and what is a stakeholder - is that an independant party in the situation and if so who would be a suitable candidate?

This is not exactly a normal situation when a tenant is dealing with both the landlord and agent on matters concerning tenancy arrangements and there is a disagreement between them. I had in mind a solicitor being stakeholder. From your point of view as a tenant that is no problem but it could mean the landlord and agent being deprived of income until the dispute is resolved. Perhaps opt out of the stakeholder option at this point of time and state the rental money will be held in on deposit until such time as it is clarified whether the rent is to be paid to the agent or to the landlord.

All we (the landlord and existing tenants) wish to do is complete the term of the existing agreement with the agents

There is no problem here at all

and then enter into our own one directly with the landlord

Whilst that is your preferred option a tenant cannot overide a binding contract between a landlord and agent. You and the other tenants might wish to be non-co-operative and the agent may not feel the time and effort in managing the particular property to be worthwhile.

- i.e. remain in the property.
As much as you and the other tenants may sympathise with the landlord on this matter the security of tenure for you is probably the most important one. At the end of the day you may be needing a tenancy agreement made with the agent and you should be careful not to prejudice your situation as a tenant because of concern for the landlord

Can you tell me who we can go to for advice because as much as I (and Simon - new landlord who has owned his own property previously but never a buy to let with existing tenants in it) have looked we really are at a loss as to who we go to and what we do, we dont wish to do anything illegal we just want to remove the agents out of the equasion and remain in the property.

take great care not to become involved in any act of conspiracy to thwart any legal agreement made between the landlord and his agent.

It's best that you and Simon have a temporary divorce and each separately see the Citizens Advice Bureau or consult a solicitor under the initial free legal help scheme as your interests each are different.


Thank you for your reply.

Caroline

Perhaps others may post their views on my suggestions.

..........

[pms]

Have you been issued with a S21 Notice Requiring Possession? If so what is the date of that notice and has it been signed (or issued) by your original landlord or the new agents?

Whether or not a S21 Notice has been issued I suggest you might consider writing to both the landlord and new agent stating you do not intend to leave the property until you receive a Court Order requiring Possession.Thanks Worldlife.

It wouldn't be illigal as I would imagine the S21 NOTICE would deemed to be invalid if it doesn't have certain information on it and under the law you don't have to leave the property unless the court issues an order.I would agree with Worldlife and no doubt CAB would advise the same.

[CarolineJ]

Thank you for your advice as suggested we will not do anything with the form that we have received, I shall check the S21 forum as to what it should contain.

Regarding the situation itself I should just clarify a couple of points which either I am reading incorrectly in your replies or I have not made the situation clear.

We are in an AST with the letting agency until 9th July and once this has run its course we are wishing to enter into an agreement directly with our landlord, no new agent will be involved at all.

What the landlord is disputing with the agents is the 500 introductory fee, not the AST itself but this finders fee - he never signed anything - although he has also said if paying this will resolve the situation then he is prepared to do so.

What we are really asking for advice on is the following, once the contract with the agents has been completed they wish to carry out an inventory check (which we of course have no objection to) but they are telling us we will have to pack up and move out - this is what I want to find an answer to, is this still necessary if we are intending to enter into an agreement with the landlord directly from the 10th July.

We are not and have no intention of witholding rent, we will continue to pay the agents as normal until the 9th of July from the 10th July we will pay the landlord directly - he is intending to draw up his own AST which I assume he can do.

The idea of a court order horrifies me, we are not trying to do anything underhand or even illegal we just want to complete the AST with the agent and then continue in the property (with the full consent of the landlord) after this date.

I think perhaps it has been interpretted that the landlord is trying to get out of this AST before it has run its course, he is not - he is happy with the arrangement until the 9th July and again just wants to deal directly with us after this date.

I cant believe that we are the only poeple (i.e. landlord and tenants) to decide we wish to continue renting a property after the letting agency's agreement has run its course without the need for using a letting agency.

We will consult with CAB but was really hoping someone here might be able to save us some time as getting through to the CAB is difficult enough in itself and be able to advise us as to whether what we want to do is legal, acceptable and so on...

Many thanks

[Worldlife]

Caroline .. From the practical point of view the dispute between the landlord and the agent should not concern you as a tenant. You have no rights to determine whether you pay your rent directly to the landlord or to his agent.

Who the rent is paid to is strictly a contract matter between the landlord and the agent that should be documented to the tenant.

You have a valid tenancy with the agent until the 9th July and your security of tenure is much more important than a financial dispute between the landlord and agent. I am sorry if I did not make it clear that any question of witholding rent should apply after 9th July when you as tenants will be unsure as to whether the rent should be paid to the agent or to the landlord.

Several posters ,including myself, have advised you check whether you have been correctly served with a valid S21 Notice. If you have not and as a consequence tenants continue in occupation until the correct notice has been served the agent can do very little. If the S21 has been correctly served then the agent will have to seek a Possession Order in Court.

If the tenants go to Court stating that they wish to continue their tenancy and the landlord states that he too wishes the tenancy to continue I cannot see that a possession order would be granted. The Judge might wrap the knuckles of the landlord and agent and tell them to get their act in order.

Maybe if your landlord posts full details of his contract arrangements then others may be able to advice him.

[pms]

Caroline .. From the practical point of view the dispute between the landlord and the agent should not concern you as a tenant. You have no rights to determine whether you pay your rent directly to the landlord or to his agent.


Several posters ,including myself, have advised you check whether you have been correctly served with a valid S21 Notice. If you have not and as a consequence tenants continue in occupation until the correct notice has been served the agent can do very little. If the S21 has been correctly served then the agent will have to seek a Possession Order in Court.

If the tenants go to Court stating that they wish to continue their tenancy and the landlord states that he too wishes the tenancy to continue I cannot see that a possession order would be granted. The Judge might wrap the knuckles of the landlord and agent and tell them to get their act in order.

Maybe if your landlord posts full details of his contract arrangements then others may be able to advice him.

Totally agree.At the end of the fixed term the Landlord can do what he likes.Doe's it say anywhere in the terms that the agent can charge a fee after the inital period.The trouble with agent's is that they think they can get money for old rope and I for one beleive that the £500 fee is exstortiant and unjustified.Bottom line is that their trying to hold you over a barrel.Apoligies for the spelling.

[Worldlife]

I'm not sure you are right there Wickerman cocerning the payment of rent.

It will be necessary to look at the AST to see what the arrangments are for paying the rent.

For example one of my AST's states:-


The Rent £x per calendar month by way of standing order into the Landlord's bank, details of which have been provided to the tenant.

The other states:-


To pay the Rent on the days and in the manner specified to the Landlord or the Agent

I underline again that the security of tenure of the tenant is paramount in this thread and she should not become diverted into issues that concern the landlord and the agent.

If no new AST is issued and a valid section 21 has not been issued then tenancy continues as a month to month periodic one. It seems to me that if rental payments are to be continued they should be paid in accordance with what is stipulated in the AST.

From the tenant's viewpoint who will have the right to serve a valid S21 Notice and who will have the right to issue the new AST? Will it be the landlord or the agent?

[CarolineJ]

I just wanted to thank everyone for their time in this matter, I had a really useful conversation and emails from Paul F (Learn Letting) today and he has explained that we are not in the dire situation we had thought and that it is actually very straightforward, no need for court orders etc.

1. Simon (landlord) has not taken on the previous landlords AST and can cancel it at any time if he so wishes as he has signed nothing. He has simply bought the property.

2. As for the 500 pound finders fee I know from someone who works at the letting agency that Simon has signed nothing and that the directors are really trying it on in that aspect.

3. We will let the exisitng AST run its course.

4. Simon will write to the agents advising them that he is terminating the contract with the agents and to revoke the S21 they have issued us as this was not something he had ever requested (if the document that they have issued is even an S21) and the existing tenants will remain in the property after the existing AST with the agents has expired.

5. He will also advise them he does not want them to carry out an inventory check on 9th July - we will however carry this out ourselves i.e. the landlord and the current tenants.

Thank you again for everyones advice,

Caroline

[choices]

For a tenant or landlord to do their own inventory, possibly just to save money, is rather risky. Although you and Simon are at the moment getting on so well, well done hopefully it will stay that way, things just may change in the future, you do not know what might happen, a simple accident, major spillage or problem with the flat/house. An independant inventory clerk, although an added expense, will be very useful if things go bad and head towards the courts. They are seen to be in a better situation than either a letting agent send a member of staff, or even a trainee for experience, as they are not on anyone 'side'and the report is 'as seen', the clerk will not be swayed by the landlord or the tenant if a problem is spotted.

[Paul_f]

I need to clear up a couple of points here!
I just wanted to thank everyone for their time in this matter, I had a really useful conversation and emails from Paul F (Learn Letting) today and he has explained that we are not in the dire situation we had thought and that it is actually very straightforward, no need for court orders etc.

1. Simon (landlord) has not taken on the previous landlords AST and can cancel it at any time if he so wishes as he has signed nothing. He has simply bought the property. No Caroline, it will still exist until you and Simon draw up a new AST. You are confusing the agent's terms of business with the previous landlord whihc does not pass on to Simon.

2. As for the 500 pound finders fee I know from someone who works at the letting agency that Simon has signed nothing and that the directors are really trying it on in that aspect.

3. We will let the exisitng AST run its course. You don't have to as in (1) above
4. Simon will write to the agents advising them that he is terminating the contract with the agents and to revoke the S21 they have issued us as this was not something he had ever requested (if the document that they have issued is even an S21) and the existing tenants will remain in the property after the existing AST with the agents has expired. The AST is between landlord & tenant and has nothing to do with the agent!

5. He will also advise them he does not want them to carry out an inventory check on 9th July - we will however carry this out ourselves i.e. the landlord and the current tenants.

Thank you again for everyones advice,

Caroline

[Gigi]

I was in a similar situation to Simon when I bought a property, except I didn't know the tenant.

The agent tried it on big time. I served a notice on the tenant (with a solicitors letter proving purchase) advising that I was the landlord and he was to pay the rent to me - and inviting him to make an appointment to sort out the lease - and pointed out that any monies paid to the former landlords agent henceforth would be a matter between him and them.

Infuriated the agent who tried to get the tenant out and tried to charge me a 'finders fee'. I assured the tenant with a new lease (as the old one as you say was with the former LL) and ensured the solicitor kept back the tenants deposit from the purchase price (so was able to assure the tenant that his deposit was safe when the agent threatened him) and told the agent to go seek redress from his client!

What has to be remembered is that the agent works for the LL to introduce a third party. Any contract is with the LL If the LL changes then the agent has no automatic rights with the new Ll unless a contract is signed or assumed.

Well that is how my solicitor saw it.

p.s. I am now in a different position and about to post about that!

[Worldlife]

Thanks Gigi....

Your post seems to simplify and clarify the situation.

Must admit however I remain confused!! Say the tenant has 11 months to go on a twelve month AST that states the rent is to be paid to an agent.

Surely that AST remains in force unless a Possession Order is granted or a replacement AST is agreed with the new landlord.

If after the completion of a sale of the property the agent and landlord are giving conflicting advice to a tenant I am wondering if this could be construed as harassment.

However still see these 'battles' between landlords and agents as secondary to ensuring that the tenants rights are not violated . If both the tenant and new landlord want a continuity of the letting then it is important to provide a new agreement s at the earliest possible date.

If there are any violations of contract between landlord and agent I note that this has to be resolved between the vending landlord and agent and not the purchasing landlord and agent.

[P.Pilcher]

If a tenant holds (say) a 12 month AST with (say) 11 months to run, he has security of tenure for the 11 months - i.e. nobody can kick him out if he complies with the terms of his AST and pays his rent.
If the house changes hands, the AST is still valid giving the tenant the same security of tenure as before. The new owner however becomes the new landlord from the date of his purchase and thus only he can validly issue receipts for rent (or his agent if he decides to appoint one). Thus (the same) rent must then be paid in accordance with his instructions. Should the new landlord and tenant agree, the current AST can be replaced by a new one. The old landlord's agent has absoloutely no authority over the property once the sale/purchase has been completed and should seek any redress he thinks he is entitled to from his client.

P.P.

[Worldlife]

Thanks P.P. - at last all is clear :)