Here is question to the Blog Clinic from H who is a landlord
I used a letting agency to let my property as I was relocating abroad. The letting agency promised that they will screen all prospective tenants, get references and put professionals in the property so that I can have my property back at the end of fixed term 12 month contract. It was also the time I would come back to UK.
I got busy settling in new country and was assured that property in UK is being looked after well by agents. But I was in shock. After couple of months I checked that no rent has been paid. I called the agent who said that tenant situation has now changed , they have split and can no longer afford the property.
I asked them to serve notice to get property back if they cannot afford but later tenant went on housing benefit and payments commenced on & off until they completely stopped in January when the letting agency stopped taking calls & replying to emails .
Later agent closed the shops and basically disappeared. I have lodged a complaint with Action Fraud and know other numerous people who have reported them to Police , Trading standards.
My saga still continues, I some -how managed to get phone number & email of my tenant by asking my relatives to go to property to tell tenant that the 12 month contract has now ended in April 13.
The tenant has refused to move out claiming he was under impression that it’s a rolling contract although the tenancy agreement clearly states the expiry date of the contract and section 21 is served in it in advance.
The tenancy agreement does not mention any deposit paid by tenant but only a indemnity bond of estate agent equivalent to 4 weeks of rent as security in respect of performance of tenant during the contract.
I also have no clue if any deposit was paid by tenant or not. The terms & conditions of business of estate agent that we signed with agents clearly states that they (estate agents) don’t take deposit from their clients. The terms of business mentions letter of indemnity of bond to be a surety in place of deposit sum and estate agents to be responsible for all arrears.
I am at my wits end to find if tenant paid deposit or not. The tenant does not respond any more to emails or phone calls and is now abusive since he knows I am abroad. He thinks he will stay in my property for infinite time and won’t pay any rent. The council does not respond and said unless tenant confirms to us that you are owner of property, they can’t release any information to me (under data protection act) even though I have sent title deed documents to them via email.
The only saving grace for me is that section 21 served in TA and no mention of deposit in TA or terms of business of Estate Agent but only indemnity bond of estate agents
I have already said to tenant that I will give him extra time to find new place but he won’t respond at all. What will be my position if Tenant claims he paid a deposit to agents and have the receipt? Please advice on next course of action. Can I approach the court to get possession order now?
I am coming to UK with my small children and have no where to go if I don’t get my property back and basically be homeless.
This is a classic example and reason why letting agents should be properly regulated. I hope someone in government reads this.
You are I am afraid in a pickle. You need to evict your tenants through the courts and get a court order and until this is done they are entitled to stay there. The tenancy runs on as a periodic under the general law – see here
The fact that your tenant is not responding is bad news and it may be that they are just waiting for you to evict them so they can be rehoused by the local authority.
The best way to evict the tenant is under section 21 but if the tenant paid a deposit (and is able to prove this) then you cannot serve a s21 notice if it was not protected within 30 days and will in most cases have to pay the money back.
Three possible courses of action
I can think of three courses of action.
One is to just issue proceedings using section 21 and see what happens. If the tenant claims that they have been paid a deposit you will at least know what the situation is and be able to deal with it – although those proceedings will have to be halted.
If you (or better still, your solicitors) had previously written to your tenants asking them to confirm whether or not a deposit had been paid and saying that you would be relying on their response in court proceedings – that might be sufficient to save you from a wasted costs order. A Judge would take a dim view of tenants allowing you to issue proceedings in those circumstances.
The second course of action will need a solicitor. There is a procedure called ‘pre-action discovery’ where you can require a potential defendant to provide you with information before issuing proceedings. It is not something I have ever done but it could I suppose be used in your situation.
The third course of action is offer the tenant money to go. If you offer then enough to cover their deposit and first months rent for another property they may be willing to leave – but if so be sure not to pay anything over until they have actually gone.
I realise that all of these will be very difficult for you living abroad and it is shocking that this has happened and that your agents have let you down in this way.
If letting agents were regulated there would probably be some sort of procedure in place to help people in your situation (as there is when solicitors firms go out of business) but I am afraid this is not the case at the moment.
Hello H
My advice is slighty different from Tessa’s and for a relatively minimal outlay will take you forward to a situation where you may be able to meet the tenant face to face.
This can be done without a solicitor using the Accelerated N5B possession claim available through the Court Service. It is normally processed by exchange of papers without a hearing and costs about £150. You have no reason to assume that a deposit was paid as there is no reference to it in your documents.
You need to complete the form which is easy to follow and send the relevant TA including the S21 to the Court who will then issue it and after the tenant has responded to the claim will normally issue an order for possession.
If the tenant puts in a defence in respect of a deposit then the Court may decide to have an oral hearing. If they have evidence then as Tessa says, the claim will be dismissed but your costs will be small. That will then allow you to speak to or negotiate with the tenant without too much cost. Given that you have a TA and there is no reference to a deposit, even if the tenant has legal representation my view would be that they would not make a costs order.
I would try to avoid using a rent arrears claim as that can be expensive and take longer. As said that will take you forward and enable you to communicate.
A possesion order using the Accelerated Procedure is normally awarded 14 days after the date the court sets for the issue. The tenant may seek to ask for an extension of up to 42 days if they claim exceptional hardship.
Using the accelerated procedure is probably be cheapest option (it is my number 1 suggestion) – if you decide to do this, note that there is a do it yourself kit available on Landlord Law for +plus members
http://www.landlordlaw.co.uk/eviction
Picking up on the regulated agent comment.. It depends on what exactly ‘regulated’ means. Simply introducing more regulations that someone acting as an agent is supposed to comply with would not necessarily have prevented this. In the case of this agent it would be one more piece of legislation they would be ignorant of or circumnavigate for their short-term gains. Meanwhile for the law-abiding agents it is one more hoop to jump through possibly adding cost and effort to what they do already. Some of the biggest cowboys in our area claim to be ‘regulated
‘ because they have trade body stickers on the window.
Although this thread is to respond to the legal issues related to the problem, it may be ok to make a few comments on Tom’s concerns.
No regulation system is fool proof or that it will, in itself be followed by everyone. There are thousands of unlicensed, uninsured and banned drivers on the roads. Many people do not purchase TV licenses. The rest of us do and can supply the relevant documentation when required. In the field of housing little resource is made available to ensure standards are followed but that does not mean that those standards should not exist.
Increased knowledge of laws by tenants and the community in general will hopefully make potential tenants ask for copies of relevant gas safety certifcates and the like; to check that if an agent states that they are a member of a trade body, then the potential tenant double checks.
Good landlords and agents will have documents and other evidence readily to hand about the properties, and compliance and application for licenses etc will become gradually less costly.
How can a Council or other body differentiate between landlords and agents who claim they are”good” as opposed to those who are “bad” such sujectivity would be open to many challenges. There is a “fit and proper” test in licensing schemes that is relativley easy to establish in relation to objective physical standards, but not so objective in relation to management standards (in the absence of a prosecution or some other measuring system)- but it is necessary to start somewhere
Thank you for that comment Colin, you are so right. Yes, regulation will mean more work for landlords and agents, and may be inconvenient for them, but we have to start somewhere if we want a fair society.
At present there is a lot of unfairness in the private rented sector which should be dealt with.
Solicitors, accountants, estate agents and financial advisors (to name but a few areas of business) are all regulated. Why should letting agents and landlords – who are involved in the important matter of providing homes for people – be unregulated?