Absolutely incompetent agents

[eyes on horizon]

First post but need a bit of advice.

I own a rental property and due to a change in circumstances I had to serve notice on the tenant and the agents as I have to move back in. I notified the agents in writing on August 12th to terminate the shorthold agreement with the tenant and to sever their contract as of October 18. I never received any confirmation in writing however I have spoken to them on the odd occasion and they confirmed verbally that everything was set for the tenant to vacate on the last day of his tenancy. The deposit is held by the agency.
I rang this morning to confirm everything was ok and I could collect the keys, inspect the property and ok the deposit going. To my utter shock I was told that ‘the tenant is going to have to remain in the property until October 30th as the agents were trying to find him an alternate place to live and couldn’t find anything sooner’
By sheer luck I do not have to be out of my current property until November 4th however this has caused me a huge spanner as I was planning on making home improvements ect and painting the property before I moved back in…nevermind the fact that this is overstaying the tenancy by 12 days which I would expect rent to be paid to me for.
I also do not want them to return the deposit until I have had a thorough inspection of the property either, the deposit is pre Protection scheme.
The other issue is that I am worried that something will happen and the tenant will have to stay on and I will essentially be homeless as of 04/11.
Is there any sort of legal recourse I can take against the utter incompetence of this shocking letting agency??? There is no written contract with them (all of this was set up by my now exwife but I am the sole owner of the property now)
I obviously need to write them a strongly worded letter of complaint but if I knew I had some legal ground to stand on I would like to include that.
I realise that if the tenant pays the agency rent then technically he is not squatting so I am not sure how I could go about getting a possession order for the property???

[mind the gap]

What did you expect your agents to do - physically throw your tenants out onto the street if they did not vacate on Oct 18th? That would of course have been illegal.

Seriously, although I am no fan of agents, I do not see how they could have acted otherwise. They served the s21 notice as you instructed; as in any other ' LL requiring possession' situation, if the T does not move out on the day you want them to, then you would have to apply for a court order and if necessary instruct bailiffs. That can take weeks or even months, so be glad that the agents are helping them find another place. You do not have the legal right to move back in on the last day of the tenancy unless T is compliant. The fact that it is your house and you have already chosen the new wallpaper is not reallly relevant; it is still his home, until he moves out.

The end of tenancy inspection and return of deposit should take place as soon as T vacates.

[eyes on horizon]

No, I understand he doesnt have to leave until I gain a possessin order thats fine, and I dont blame the tenant. What irritates me is that the agency knew about this for weeks. I am not optimistic he is going to leave on the 30th, and not holding my breath that the extra rent is going to be paid. Can I withhold this from the deposit if its pre-scheme? I would have assumed so.

[jeffrey]

Please state:
a. on what date the term began;
b. the length of the term granted; and
c. on what date T will actually vacate (he says!)

[eyes on horizon]

The tenancy started on April 7 2006 for one year. The tenancy agreement is unsigned by the tenant, the agency, and neither my wife nor I.
It rolled on month to month since then.
I accquired the property in June this year thru divorce proceedings via title deed transfer TR1 (my exwife dealt with the property I had no involvement other than being on deed) It has taken me up to August to get any information from the letting agency, complicates that my exwife is best mates with one of the agents.
There is no contract with the agency.
Tenant was served S21 on August 18 to vacate october 18

[property mongrel]

I am still struggling to see what the agency have done so badly wrong here?

When was the effective date that the T could have been served with their 2 months notice and when would their last date of tenancy have been? Are you claiming that the LA could have and should have acted sooner than they have done? No matter how fast the LA had acted when you instructed them it would not force T out on the date you want.

When did you realise that you would want the property for your own use? Could you in hindsight have given the LA and the T more notice?

pm

[jeffrey]

The tenancy started on April 7 2006 for one year. The tenancy agreement is unsigned by the tenant, the agency, and neither my wife nor I.
It rolled on month to month since then.
I accquired the property in June this year thru divorce proceedings via title deed transfer TR1 (my exwife dealt with the property I had no involvement other than being on deed) It has taken me up to August to get any information from the letting agency, complicates that my exwife is best mates with one of the agents.
There is no contract with the agency.
Tenant was served S21 on August 18 to vacate october 18
1. The absence of a written/signed AST is irrelevant. The fixed term expired on (= at end of) 6 April 2007.
2. If rent was due monthly during it, T acquired a Statutory Periodic Tenancy (SPT) of which the first month began on 7 April 2007.
3. A fresh SPT begins monthly, each on 7th of month.
4. Your s.21(4)(a) Notice on 18 August 2010 is therefore invalid; it cannot demand possession on 18 October.
5. Instead, its date should have been 'after 6 November 2010': the first SPT-end date that follows at least two months from Notice service.

[mind the gap]

If you have no contract with the agency why are they involved at all and why are you blaming them for the fact that you did not know that your T did not intend to vacate on 18th?

[jeffrey]

If you have no contract with the agency why are they involved at all and why are you blaming them for the fact that you did not know that your T did not intend to vacate on 18th?
T did not have to vacate on that date, of course.

[mind the gap]

T did not have to vacate on that date, of course.

Did I said he did?

[eyes on horizon]

Right, TA is actually dated 18/04/2006. My letter to the letting agents asks for them to give two months notice as of August 17th 2010. Was this incorrect as I asked advice of another agency if this was correct procedure.
I essentially gave notice as soon as I got a copy of the TA thru from the agents so no I couldnt have given any notice sooner.

[mind the gap]

Right, TA is actually dated 18/04/2006. My letter to the letting agents asks for them to give two months notice as of August 17th 2010. Was this incorrect as I asked advice of another agency if this was correct procedure.
I essentially gave notice as soon as I got a copy of the TA thru from the agents so no I couldnt have given any notice sooner.

It sounds correct, if tenancy runs from 18th-17th of the month; however, you are assuming that just because you have served notice, the T is obliged to move out. That is not the case, as explained above.

[eyes on horizon]

As stated above ALL of this was dealt with by my now ex wife. I know nothing about residential lettings hence why I am here. I aqquired a property in my divorce with a tenant in it, and I need to move back into that property. I want the tenant out and gave them two months notice, served on the agency as per the tenancy agreement states 'notice by either parties to be served at BLAH & BLAH. They have known the tenant wasnt going to be able to move out, and they have known for weeks. I would have thought they would have passed that info on to me, as the landlord. they were also paying the rent to my exwife up until last month, albeit with a fee deducted. I believe that this was all done via verbal agreement by my exwife as i said she is MATES with one of the agents. I am trying to do everyting legally and on paper. So i need to know if I have served the notice incorrectly for a start, the rent was payable on the 18th of each month. If the tenant stays until the 30th of october then can i deduct rent from his deposit??

[jeffrey]

Did I said he did?
More or less, yes: why are you blaming them for the fact that you did not know that your T did not intend to vacate on 18th?

[jeffrey]

Right, TA is actually dated 18/04/2006. My letter to the letting agents asks for them to give two months notice as of August 17th 2010. Was this incorrect as I asked advice of another agency if this was correct procedure.
I essentially gave notice as soon as I got a copy of the TA thru from the agents so no I couldnt have given any notice sooner.
As you have now changed the story, this changes my post #7. I'd reword it as follows:

1. The absence of a written/signed AST is irrelevant. The fixed term expired on (= at end of) 6 April 2007.
2. If rent was due monthly during it, T acquired a Statutory Periodic Tenancy (SPT) of which the first month began on 18 April 2007.
3. A fresh SPT begins monthly, each on 18th of month.
4. Your s.21(4)(a) Notice on 18 August 2010 is nevertheless probably invalid; it cannot demand possession on 18 October.
5. Instead, its date should have been 'after 17 November 2010': the first SPT-end date that follows at least two months from Notice service.

[eyes on horizon]

Ok so notice to end tenancy has been issued incorrectly then?
Does this mean I can not start court proceedings until November 17th (in the event the tenant stays put)? Or do I now have to re-issue a fresh notice? I guess the starting point would be requesting a copy of the notice letter sent by the agency as they confirmed verbally they did this.
If he does leave on the 30th, he still owes me rent from the 18th October to the 30th, can I deduct from deposit?
I still view all of this as a tenant, and to me I have to be out on November 4th, I wouldnt overstay even if it meant having to stay with relatives but I guess in theory I could just stay put! Thnaks for your advice.

[mind the gap]

More or less, yes: why are you blaming them for the fact that you did not know that your T did not intend to vacate on 18th?

Neither more nor less, but not at all.

The fact that OP seems under the impression that Ts must leave when notice expires (and that he blames the agent for not telling him that Ts did not intend to) does not mean that I implied that they had to leave. It is clear from the other things I have written in this thread - from #2 onwards - that I do not think that. Nitpicking other people's posts yet again - please stop it.

[Snorkerz]

Ok so notice to end tenancy has been issued incorrectly then?
That depends on the exact wording used on the s21 notice - there may have been some 'catch all' saving text.
Does this mean I can not start court proceedings until November 17th (in the event the tenant stays put)? Or do I now have to re-issue a fresh notice?If it is wrong then you need to issue a fresh s21
I guess the starting point would be requesting a copy of the notice letter sent by the agency as they confirmed verbally they did this. A very wise idea
If he does leave on the 30th, he still owes me rent from the 18th October to the 30th, can I deduct from deposit? The tenant owes rent up until he leaves, indeed he may owe rent beyond that if he leaves mid-tenancy month.
I still view all of this as a tenant, and to me I have to be out on November 4th, I wouldnt overstay You may think you are regarding this from the tenants PoV - but they have rights which need to be respected, they are under NO obligation to leave just because it is inconvenient for you.

[Sad S]

The tenancy started on April 7 2006 for one year. The tenancy agreement is unsigned by the tenant, the agency, and neither my wife nor I.
It rolled on month to month since then.
I accquired the property in June this year thru divorce proceedings via title deed transfer TR1 (my exwife dealt with the property I had no involvement other than being on deed) It has taken me up to August to get any information from the letting agency, complicates that my exwife is best mates with one of the agents.
There is no contract with the agency.
Tenant was served S21 on August 18 to vacate october 18

You say that, up to June this year, you had no involvement with the property "other than being on the deed".
So did the unsigned tenancy agreement not name you at all?
Has the tenant been informed, in writing either by the agent or by you yourself, that your are their landlord?

[property mongrel]

Sad S raises a good point. As OP is now the LL presumably all the responsibilities and obligations of a LL fall to him to comply with and he will need to check that he has complied with?

Does he have to make any changes to the deposit paperwork? Are all and any safety certificates or checks up to date?

If one party was so minded, what a way to mess up an ex partners life by giving them a property or a tenancy that requires work.

pm

[westminster]

Has the tenant been informed, in writing either by the agent or by you yourself, that your are their landlord?
Yes, very good point.

T must be served with notices under s.48 LTA1987 and under s.3 of LTA 1985, with former LL's Letter of Authority. I doubt a s.21 served by new LL would be valid until T had been served with aforementioned notices.

[jeffrey]

Neither more nor less, but not at all.

The fact that OP seems under the impression that Ts must leave when notice expires (and that he blames the agent for not telling him that Ts did not intend to) does not mean that I implied that they had to leave. It is clear from the other things I have written in this thread - from #2 onwards - that I do not think that. Nitpicking other people's posts yet again - please stop it.
In what way does your rant assist OP? It's for you to stop ranting unconstructively.

[jeffrey]

Yes, very good point.

T must be served with notices under s.48 LTA1987 and under s.3 of LTA 1985, with former LL's Letter of Authority. I doubt a s.21 served by new LL would be valid until T had been served with aforementioned notices.
I agree. T should not recognise new L's rights at all otherwise; for all T knows, "new L" is a scammer.

[mind the gap]

In what way does your rant assist OP?

No more or less than your nitpicking ever does. I don't take it personally, because you do it to lots of people, but it is annoying. However, please be assured that it takes more than mild irritation with you (which can be an occupational hazard of contributing to this forum!), to move me to rant! Apart from anything else, ranting is charcterised by irrationality and a lack of textual cohesion; my post displays neither of these. It simply states the reasons why your post could be seen as nitpicking. No rant! Look :smiling face :).

[eyes on horizon]

well... all of this is very valid and all new info!!
The tenancy agreement is between Mr & Mrs XXXX. I am the Mr so I assume this is ok. Please someone correct me if I am wrong.

As I have stated I know NOTHING about any of this so was trusting the agents are giving me valid guidance on the situation. I obtained the house in the divorce, my exwife dealt with all of the property previously. Requested the tenancy agreement to find out when I could serve notice and as it was a SPT I served 2 months notice. Had it been freshly signed for another year or 6 months I would have honoured that term as well. The agency actually served the notice, it was not direct from me.
The deposit is held by the agency. there is no paperwork around this other than what is stated on the tenancy agreement and a reciept given to the tenant. And now it appears that the inventory has been misplaced by the agency.
I am in the process of drafting a letter to the agency and need to confirm I am asking them for everything:

-copy of the notice letter
-copy of the inventory (altho been told on the phone its misplaced)
-confirmation the deposit is held by them
-any other paperwork relating to the property

I am anticipating that a lot of this will be MIA, but if anyone can give any further advice that would be great.

[eyes on horizon]

Also to get my head around all of this..if I had to start from scratch on this whole process, could someone let me know if the below is correct:

-issue notice, in writing, to the tenant the day before the TA is dated (Nov 17th) 2 months notice based on the fact I have to move back in, and perhaps to avoid any confusion get my ex wife to sign the notice letter. Is a recorded letter suitable?
-if he fails to leave after the two months, Jan 18th, then can I apply to the courts for a possession order?

[jeffrey]

L cannot serve a s.21 Notice before the relevant AST is dated/begins.

[westminster]

L cannot serve a s.21 Notice before the relevant AST is dated/begins.
This isn't what the OP means.


Right, TA is actually dated 18/04/2006.

He just means he's been told (correctly) that the s.21 must expire 'after 17th [month]' - (and to him, the 17th is 'the day before the TA is dated').

[westminster]

The real question is this:


The tenancy agreement is between Mr & Mrs XXXX. I am the Mr so I assume this is ok. Please someone correct me if I am wrong.
As far as I can gather, the title of the property is now owned exclusively by OP, Mr XXXX. So, as Mr XXXX was previously one of joint LLs, is it necessary to serve T with notice of 'change of LL' from Mr & Mrs XXXX to Mr XXXX? Or can Mr XXXX proceed immediately with serving s.21, naming himself as sole LL?

[jeffrey]

'Mr & Mrs' are not the same as 'Mr' alone; so he does need either:
a. to proceed in joint names, with Mrs co-signing everything; or
b. to notify T of sole ownership [s.3 of LTA 1985] before proceeding in sole name.

[eyes on horizon]

ok, for arguments sake lets suppose my ex co-operates. no being funny her spousal maintence depends on me having no housing cost to pay which i wouldnt if i moved back in..so its in her interest. :rolleyes:

what do i need to do if i had to start over..? the TA is titled
Assured shorthold tenancy - under part I of housing act 1988 as amended under part iii of the housing act 1996. Dated 18/04/2006. for a fixed period of 6 months.
no further TA's have been issued or agreed, rent hasnt changed, nothing.
how can i get the tenant out legally if i had to re-start the whole process?

in the TA I have just read:

4. The landlord is the person, or persons stated, or any other person entitled to possession if the tenancy were to end.

[jeffrey]

If you are the sole registered proprietor, just notify T of this [s.3 of LTA 1985] and you can proceed (in sole name) to serve Notice under s.21 of HA 1988- you might even do both at once (saving 30p postage).

[thesaint]

My advice = Thank the agents for doing a great job, and ask them to please find somewhere for your tenant soon.

[eyes on horizon]

ta everyone.

agency called and confirmed they have found him a place for the 30th. fingers crossed.

[westminster]

ok, for arguments sake lets suppose my ex co-operates. no being funny her spousal maintence depends on me having no housing cost to pay which i wouldnt if i moved back in..so its in her interest.
If your ex-wife is no longer one of the registered owners on the title, then she can't pretend she still is/pretend she's still one of the landlords.

Do what Jeffrey suggests and serve both notices.

The s.21(4)(a) if served before 18th November, would expire 'after 17th January 2011'.

Great, if T leaves on the 30th, but he may not, so cover yourself.

[eyes on horizon]

Thanks, will do both at the same time just in case. if i find the agency served notice correctly can i still initiate court proceedings on november 17th or does my new notice 'void' the old one???
sorry if these are daft questions but i already owe buckets in sols fees so if i can avoid having to consult another one about property law :)

also, the agency confirmed they hold the deposit. this is pre-scheme. Can i request that they release the deposit to me so I can do the inventory check out? not that there is a copy of the inventory, but i am hoping hte tenant kept his copy. even so, if there is no MAJOR damage then i will just as a last resort withold the o/s rent. i am worried given the agents are matey with my ex wife this may be another way for me to get stuffed up and i am nervous they hold it. its pre-scheme.

[westminster]

Thanks, will do both at the same time just in case. if i find the agency served notice correctly can i still initiate court proceedings on november 17th or does my new notice 'void' the old one???
Expiry date aside, if the s.21 was served after you became the sole owner/landlord, then unless the agent also served notice under s.3 of LTA 1985, it'll be invalid. No, I don't think the new notice would invalidate the old notice - it's either valid or not.


also, the agency confirmed they hold the deposit. this is pre-scheme. Can i request that they release the deposit to me so I can do the inventory check out? not that there is a copy of the inventory, but i am hoping hte tenant kept his copy.
You'll be lucky if the tenant agrees to give you his copy, thereby helping you to prove he's caused damage. As the tenancy began four and half years ago, the wear and tear is likely to be significant, anyway - and T is not liable for fair wear and tear.

Yes, you can ask the agent to give you the deposit, but I don't see how this will enable you to carry out an inventory check-out?

[eyes on horizon]

ok, that clears it up. i will serve both notices tomorrow on the tenant, recorded delivery.

its not that i want to do the inventory per see, i would actually prefer the agency to do it. and yes i do realise there will be wear and tear, being a tenant now myself for the last 3 years. what i am worreid about is that the agent (who is mates with my ex wife) will say its all fine and dandy and then release the deposit, only for me to get in there and realise its not. if the old TA has both my ex and my name on in order to release do we both have to ok it or does the notification that i am now the sole owner allow just me to ok the release? or can the agency release it without me saying ok?? i would have thought not being a tenant in similar circumstances. again apologies if these are daft questions so far you all have been a great help.

[westminster]

ok, that clears it up. i will serve both notices tomorrow on the tenant, recorded delivery.
Don't use signed-for services, as letters may be refused by the recipient or go undelivered. Post duplicate notices from two different post offices, and obtain a *free* certificate of posting from each PO.


what i am worreid about is that the agent (who is mates with my ex wife) will say its all fine and dandy and then release the deposit, only for me to get in there and realise its not.
Why not contact the tenant and ask if you can carry out an inspection.


if the old TA has both my ex and my name on in order to release do we both have to ok it or does the notification that i am now the sole owner allow just me to ok the release?
Apart from providing a Letter of Authority to T confirming the transfer, the ex-landlord has no further involvement in the tenancy. It's possible this letter must be sent to T before you can serve the notices. Wait for Jeffrey to advise.


or can the agency release it without me saying ok??
The agent acts on behalf of the LL, and cannot act without instructions from the LL. Which isn't to say the agent may not take it into his head to hand back the deposit without checking with you first. It's also unclear, as there is no written contract between you and agent, what the agent's precise role in all this is - I mean, are you paying them? Are they collecting rent or managing the property on your behalf?

[dc61]

Don't use signed-for services, as letters may be refused by the recipient or go undelivered. Post duplicate notices from two different post offices, and obtain a *free* certificate of posting from each PO.


Why not contact the tenant and ask if you can carry out an inspection.


Apart from providing a Letter of Authority to T confirming the transfer, the ex-landlord has no further involvement in the tenancy. It's possible this letter must be sent to T before you can serve the notices. Wait for Jeffrey to advise.


The agent acts on behalf of the LL, and cannot act without instructions from the LL. Which isn't to say the agent may not take it into his head to hand back the deposit without checking with you first. It's also unclear, as there is no written contract between you and agent, what the agent's precise role in all this is - I mean, are you paying them? Are they collecting rent or managing the property on your behalf?

Is this new landlord not entitled to be there during the inspection even if the agents are undertaking the same? That way, he will know whether the property is appropriately left and won't have to worry that the deposit will be returned and he will be left with a mess.

i'm jeffrey and snorkerz biggest fan!!

[eyes on horizon]

thanks everyone. i suppose i will wait until next weekend, and see if he vacates. i have written a letter confirming to the agents not to realease the deposit until rent is paid and i have had a chance to look at the property.
i have also asked them to forward me a copy of hte notice they sent.
if i do need to issue new notice, new TA i will do so monday 1st.

oh the agency has no formal contract, however they manage/collect the rent. this as i said was a verbal agreement between my exwife and them. first thing i asked them as i wanted to ensure i terminated this appropriately surprised they didnt have anything on paper.

[westminster]

if i do need to issue new notice, new TA i will do so monday 1st.
You do NOT need to issue a new tenancy agreement. The terms of the expired agreement carry through to the periodic tenancy; all that needs to happen is for the tenant to be officially notified of the change of landlord.

If you renewed the fixed term, you would not be able to use s.21 procedure to evict before the end of the new fixed term, nor, in any case, can you force T to sign a new contract.

[eyes on horizon]

thanks guys.

well letting agents did in fact, serve notice correctly, AND informed the tenant in writing that I am now the sole landlord at the same time.
so everythign appears above board.
deposit was pre 2007, and as the TA was never renewed/rolled over to SPT am I able to use the accelrated procedure or do I have to stick with the old one?
I am giving him till midnight saturday and if hes now out I am down the court on monday with application for possession, just need to know what form to use?

I will eat my words the agents dont seem as flaky as previously thought! they have also confirmed rent will be paid etc;

[eyes on horizon]

Right, I got my tenant out yesterday without a possesion order but i now find myself in a spot and need some advice.

basically house was left in a state. rubbish everywhere, needs to be cleaned professionaly, plasterwork damage etc;
The TA says there is a £650 deposit, this was also confirmed by the agency in 2 letters.

When one of the agents came round this afternoon he says he thinks there may have been an informal agreement about the deposit and my ex wife (who trnx title deeds to me in divorce) agreed to NOT charge a deposit (she must have been insane but thats a known fact)
Where do i stand legally? TA says deposit, 2 letters confirm deposit held my agency (pre scheme) and there is essentially £650-800 worth of repairs to be done before I can even begin redecorating. I am not speaking to my ex wife about this so thats not an option.

NB-Tenant is on HB so pretty certain I wont get anywhere with small claims from him direct but quite peeved as the house WAS lovely when he moved in and he has not taken care of it whatesoever. He also owes 16 days additional rent which I have been told has to be claimed from the agency.

[westminster]

NB-Tenant is on HB so pretty certain I wont get anywhere with small claims from him direct
Well, the T is the only one who is liable. Are you suggesting that you think the agent is lying about not holding the deposit, and are considering claiming against them?


He also owes 16 days additional rent which I have been told has to be claimed from the agency.
Who told you this? Again, T is the person liable for any unpaid rent.

[Interlaken]

Bearing in mind your divorce, tenant on HB and general confusion over deposit would it not be sensible to consider doing property up and re-letting asap. In other words move on - you have had ££££'s out of tenant or HB so bite the bullet and get on with the re-furb with your eyes firmly on the horizon and not going over old ground.

[Springfields]

I would be asking the agent to prove that they haven't got the deposit. An email, letter something to confirm that no deposit was taken. I would say this is the agents mistake if they have no other details.
If you were to persue the tenant in small claims court, with the contract and letters I am sure that the judge would not award in your favour.