I have been contacted by another tenant today, who is being evicted by her landlords mortgage company. Her situation is not quite as bad as that of my clients in my previous post, as no order for possession has been made yet (the hearing is in July). However she was not at all happy to receive the notice of proceedings from the mortgagees solicitors two months into an eighteen month fixed term! Particularly as she had just paid to have broadband connected.
Once again I question the role of the letting agents here. In this case the tenant has found out that the landlord has probably been in arrears of rent for quite a long period, it could even be a year. As well as this it seems that the landlord failed to obtain consent for the letting from his head lessor. If a tenant can find these things out, why can’t the agent?
Is it right for a letting agent to be able to let a property which is obviously vulnerable to repossession, and after it is let (and their commission paid – taken from the tenants rent of course), not be liable in any way when the property is repossessed? Should they not be obliged to carry out at least some rudimentary checking?
The agents in this particular case are a large high profile London firm of estate and letting agents. When a tenant is renting a property from a professional agency such as this, they do tend to assume that they will at least be able to live in the property without being evicted two months into the term!
It is arguable that in such a situation, particularly as it is a business/consumer situation, there should be some sort of tortuous liability on the agent to ensure that the properties on their list are not vulnerable to repossession, at least during the initial fixed term.
Incidentally, the Civil Justice Council has recently carried out a consultation on a proposed new mortgage repossession pre action protocol (the consultation period finished on 23 May) but this does not appear to consider the situation of innocent tenants.
I’m afraid that a tortuous liability it would have to be.
As it stands, the tenant would have a clear claim against the landlord (derogation of grant, breach of quiet enjoyment, and other breach of contract issues). But unless the agents’ position is changed – and I suspect it would require legislation – they are just that – the landlord’s agents, acting on his behalf. Certainly, the agents are acting irresponsibly (at best) by any real world measure, but there is no contractual relationship with the tenant and I’m not sure where one would find a duty of care either.
Having said that, I wonder if the contract between the landlord and the agent could be used in a Rights of Third Parties way? Would depend on the contract of course, which could be hard to get hold of.
Or, in a related way, had the agents had acted properly in entering into a contract with the landlord when they knew or ought to have know that the landlord’s representations were not accurate? Hmm, not sure where that would go, and it is too late now to think about it…
Hey,
I am not all that clued up with landlord law’s and tennants laws etc however I can tell you that more and more repossessions, evictions and foreclosures are happening in the UK and I think its to do the with UK / USA (world?) credit crunch?
I also think its only going to get worse…
I think there can be a third party involved at the contract time so that they don’t get such troubles. By passing “consultation on a proposed new mortgage repossession pre action protocol” Civil court has put a better effort though it is not implemented at the time and some modification should be there to accommodate tenants.