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View Full Version : Letting Agent and Tenant Problems - HELP Please



gizzmo
25-07-2005, 14:24 PM
Hi Guys - I have a rather long winded problem which I hope someone will be able to help me with.
After 6 years of paying Letting Agents to find me tenants I decided to save money and go it alone so I paid for an advert in LOOT. I was inundated with calls from a local independent agency who called me daily until I eventually gave in and let them send some tenants to come and see the place. They couldn't do the viewing themselves, so I left work early that day to show the flat to 2 tenants they sent. The second lady that arrived seemed really nice, she was interested so I referred her back to the agency and told her to contact them in the morning. The next day she had put down £500 deposit to secure the flat so by this time I was pretty much tied in with the agency. I negotiated their fee down to 8% and was pretty chuffed with myself and signed their Terms of Service agreement. However they did not state what their service would cover and I like a fool assumed that it would be pretty much the same as my previous Letting Agent used to do...i.e change the names of the utilities, council tax, do an inventory, put together the agreements, check references and check-in/check-out the tenants. However I later discovered that the only thing their fee covered was introducing the tenants, checking the references and putting together the agreements. I had to do all the other stuff myself. When I asked them about this I suggested that the last agency used to charge a small fee for the inventory that was then passed onto me - and a check-out fee was charged of the tenant when they moved out. They said that they don't do inventories as they didn't want to be accountable for issues that really exist between landlord and tenant only -and that they never charge the tenant for anything as that would be construed as having a conflict of interest. However I subsequently found out from my tenant that they did charge her an introduction fee as well.
Anyway - the tenant wanted to move in within 2 days - she viewed on a Weds, put deposit on a Thurs and wanted to move in on Sat. The agency supposedly checked the references and then sent her over to the property on sat morning with the tenancy agreement for 12 months for me to sign and a schedule 21 notice in advance dated with the last date of the tenancy. She had already signed them herself and although the tenancy was in 2 names - her partner was not present nor had he signed the tenancy agreement. I handed over the keys to her and then followed up with the agency on Monday morning. I brought to their attention the fact that the tenancy agreement was not signed by both parties, or witnessed, and also raised my concern that I had not seen any of the reference checks and wanted them to fax me a copy of those. Days later I was still chasing the reference checks and I discovered that they were actually waiting on a fax from the tenant herself re the references and I later discovered that they had not done any adequate reference checks, no credit checks - just obtained 2 faxes from their employers, and checked 3months payslips and bank statements - which apparently they weren't allowed to send me copies of due to Data Protection act restrictions but invited me to the office to view. However whilst I was still chasing up these references 2 weeks into the tenancy agreement I phoned the director of the agency to find out how they had put tenants into my property without adequately checking references beforehand. They had already deducted their fee at this point. He became abusive down the phone to me and told me to F*** Off as apparently I had been harassing his staff. In my opinion 2-3 phonecalls a week looking for my paperwork was not harassing. Anyway, I was livid that he felt that he could talk to a customer that way after taking more than £1000 from them so asked him if he was regulated by ARLA and he laughed as he told me that it was voluntary and NO he was not as it was a money grabbing rip off for Letting Agents to join it.

Anyway – I later phoned the agency rather distressed and was put in touch with the office manager who was very apologetic, had chased up all the documents and invited me into the office to view the payslips and bank statements and to pick up a fresh copy of the Tenancy agreement that had been signed by both parties. This was 2 weeks after the tenants had moved in. I walked away hoping that I would never have to have any dealings with this agent ever again.

However the tenant herself has proved to be very troublesome – never paying her rent on time, she constantly tells me she will pay it today or tomorrow and then 3-4 days later she still hasn’t. She is currently 25 days in arrears for part of her rent for Jul and has sent me a fax saying that she is experiencing money troubles and feels that under the circumstances she feels she should give me notice to leave. She realizes that she is breaking the terms of the tenancy agreement (as it will only be 4 months by the end of August) and she understands if I want to hold onto her deposit as a result.

I have also since found out that the reason she was in such a hurry to move into my flat was because she was being evicted from her last flat. She had left the tenancy agreement with my contact details in the property she was evicted from and the landlady had called me up and given me a run down of all the things that she had done. The list was endless and every landlord’s nightmare. I am now happy that she wants to give notice to leave – so that it doesn’t have to get to the point where I have to evict her – but at the same time I don’t want her to trash the place so I have told her verbally that as long as she leaves the flat on the agreed date in the state that it was when she moved in I have no issues about returning her deposit to her. This I have done as an incentive to prevent her from trashing the place as she had done to her previous landlady. The tenant does not know that I know about her last landlady and what had happened at all. I prefer to consider myself informed so that I can tread carefully – yet she has not got any idea that I know all this stuff.

Now – if the tenant wants to end the tenancy after 4 months, what recourse do I have vs the agency – as I really have no desire to do business with them ever again. Our Terms of Service agreement states that if the tenant breaches the terms of the agreement, they will require one month to find another tenant and suitable access to the property.Can they send people to the property while she is still living there?
Also the agreement states if they do not find a suitable tenant within a month – then they will refund me the fee for the remaining term. Can I allow them to attempt fulfill their side of the contract but not like anyone they send me so that they have to give me the money back and walk away? Or should I just cut my losses and walk away? I have no idea that the tenant herself is actually going to do as she says and leave the property on the agreed date. She has not given me any notice in writing, and given her history I wouldn’t be surprised.
I’d value any advice or help that anyone can give me – and sorry for the long winded description…..couldn’t see how to cut it down further without giving you all the details.
Thanks in advance.

MrShed
25-07-2005, 15:04 PM
OK just to pick up on a few points.

- Yes they can view people around while your current tenant is still there, as long as the tenant is given, AND AGREES TO, 24 hours notice of any viewing.

- I would probably allow the agent to fulfil the contract, but stating that you will not pay them any extra fees, and that they should not charge the tenant an introductionary fee(although its up to you if you want to push this point, but they shouldnt profit from their original screw up). Also put in writing that you must see complete reference checks PRIOR to any deposit being taken from a tenant.

- I would allow them to do this, as otherwise you are breaching the contract and have little legal recourse as I see it. You may, however, have a case against them in small claims perhaps for a refund and damages for loss of rent due to improper checks perhaps?

- Most of the info you have posted is irrelevant. For example, you not being aware that it was finding only is irrelevant, as that is not their responsibility....make sure you read all terms carefully next time!!

gizzmo
25-07-2005, 15:24 PM
Thank You MrShed.
I think that my problem was not caused because I ddn't read the Terms carefully - as the Terms did not state at all what was included and what was not. I suspect that they decided to reduce the level of service because I had negotiated their rate down. I will need to make sure the Terms include all the details in future.

Since the remaining term of the tenancy is going to be 8 months how likely will I be to find a tenant to sign an AST for just 8 months. Can I insist that the agency signs only a 6 month AST with the new tenant, and refunds me for the remaining 2 months?

MrShed
25-07-2005, 15:39 PM
Insist is a big word :P I doubt you can insist, you can probably ask. It may be in their interests to do so, as as you say, they will be more likely to get someone in on 6 month basis. However, this could lead to a grey area, as if the tenant then stays for 8 months on a periodic tenancy, the agent could possibly try and claim the refund back from you for the 2 months.

And let me clarify that point, maybe it wasnt about the terms, but you should have found out 100% clearly prior to signing what was included. Many agents offer, and many will also ONLY offer, the service you are describing.

However, and no offence meant at all, but I would NEVER use an agent, or any company in any line of business for that matter, that attempted to pressure me into using them, especially if I did not want the service at all orignally. Its a shame they are not a member of a body, as im sure this would be against their guidelines, although I think the fact that they are not a member of a body speaks volumes. I would allow them to fulfil the contract on this occassion, on the terms i said in original post, and then cut all ties.

MrWoof
25-07-2005, 16:07 PM
You should not have allowed yourself to be pressured into making a decision but treat it as a lesson learned. I'm fairly sure you can sue the agency for any costs to you as they did not do proper checks and that puts them in breach of contract. Check your facts, see a solicitor if you feel it necessary and write to the agency informing them of this. As for the tenant, treat the offer to leave with a pinch of salt, given that she was facing eviction before, how likely is it that she will go quietly? Don't touch that agent again with a bargepole, use one registered with one of the professional bodies or do it yourself. Don't be rushed, where I am, properties offered to full rent paying tenants take about two weeks to let and that includes chasing up references. I'd rather lose two weeks rent than risk the hassle you are having (and I have had in the past due to not making full checks).

gizzmo
25-07-2005, 18:29 PM
Thanks again MrShed and MrWoof

As regards whether the tenant will actually go - yes I am wondering the same thing, what if I have a new tenant lined up to move in and the old one doesn't leave?
I guess I will have enough time to issue her with a section 21 notice expiring on the 6 month anniversary (Oct) - so that will be my plan of action if she doesn't leave. I will not be in breach then as we have a 6 month break clause in the tenancy agreement.

Thanks again for your help and I'll let you know how I got on.
:)

MrWoof
25-07-2005, 19:27 PM
I thought a break clause only applied to the tenant, still, as long as its OK, assume that she stays, then its £150 and about four weeks for the court order then another £90 and about four weeks for the bailiffs.

mjpl
26-07-2005, 13:04 PM
You have raised a large number of points and in some instances need to go into more details.

I would not allow the agent to do anything more for you if the director's attitude was so poor. There is clearly no recourse available to you through normal means if the company fails to perform and court action is often lengthy and costly.

You should investigate the Terms of Business and check if the agent has failed to live up to the Terms. Often there can be misleading statements such as 'an suitably referenced tenant'. What does this mean? who thinks the tenant is suitable?, who has decided that the references carried out were adequate?. Where such things are open to interpretation the agent will have a get out clause.

You should also bear in mind that the agent has a clause for re-let to ensure not only that they do not have to re-fund you but also so that they can make more money on top. Any refund will be pro-rata and if they let your porperty to a new tenant for 12 months they will charge you for the additional four months they have arranged.

Be very careful with letting your current tenant go. YOu must have it in writing that she has 'surrendered vacant possession to you as well as all rights and access to the premises by way of mutual agreement'. Fill out your letter as much as possible to ensure that there can be no denial that the tenant wanted to leave and did so with no intention of returning. If you fail to do this you will leave yourself open to a potential unlawful eviction case.

Unfortunately I do not have time to add anymore at the moment as I am at work and have many court cases and problems to deal with. However, if you can re-post your original story in point form I will answer each quary you raise.

gizzmo
31-07-2005, 18:06 PM
I thought a break clause only applied to the tenant, still, as long as its OK, assume that she stays, then its £150 and about four weeks for the court order then another £90 and about four weeks for the bailiffs.

Although the Tenancy agreement is for 1 year, In the tenancy agreement section 5 states:
"Provided always and it is hereby agreed as follows:
c) this contract must be for a term of at least 6 months. After this period either landlord or tenant may terminate this agreement by giving one calendar's notice in writing.
d) if any time the Landlord wishes to determine the Tenancy for whatever reason the Landlord shall give to the tenant not less than Two calendar months previous notice in writing of such his desire(such notice to expire no earlier than six months after the commencement of the term) then immediately on the expiration of such notice the tenancy and everything herein contained shall cease and be void without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or breach of obligation"

I must admit - item d does not make sense to me - and I wonder whether they have typed the word determine instead of terminate?
Also don't sections c and d actually contradict each other?
Thanks

gizzmo
31-07-2005, 18:15 PM
Additionally - there is a slight complication to the dates and I wonder when is correct to serve the section 21 notice:
The tenancy agreement started on the 16th of the month - when the second month's rent was due the tenant asked to move the date to the 1st of the month as she gets paid at the end of the month. So on the 16th she paid for 2 weeks, and now her rent is due on the 1st of every month. We put this change in writing stating that all other terms of the Tenancy Agreement would remain, and she signed a copy of the letter and returned it to me.
So when would the 2 months Section 21 notice need to be served - does she need to be 2 months in arrears on the 1st or on the 16th?
Thank You

MrShed
31-07-2005, 20:18 PM
With regards your first of these 2 posts....

- Yes I certainly would have expected terminate there not determine....weird.

- At first glance they appear to contradict. However, with closer reading, (c) refers to after the 6 month period, and (d) to ANY time during the contract.

gizzmo
31-07-2005, 20:23 PM
With regards your first of these 2 posts....

- Yes I certainly would have expected terminate there not determine....weird.



Thank You MrShed
So - do you think there would be a problem if I referenced this clause - given that it is grammatically incorrect?

MrShed
31-07-2005, 20:34 PM
Yes, I think so....it doesnt say terminate, simple as. Now while it is obviously supposed to say terminate(at least IMO), it says determine, and the tenant could, entirely correctly, say that that is what he read and that is what he signed. It isnt just grammatically incorrect, it is incorrect full stop.

gizzmo
31-07-2005, 20:46 PM
Hmmm - would that mean my case against the letting agent is stronger? As they have obviously made this mistake?

MrShed
31-07-2005, 20:49 PM
I would certainly take it up with them, yes. They should have enough experience to know that exact wording is very important in an AST