Who is in control – the landlord or the agent?
A question has come into the blog clinic from Mary (not her real name) which I have not seen before – whether the agent can dictate to the landlord what he can do. Also would Mary and her partner be able to defend any claims brought if they just moved out?
Me and my partner are currently renting a property and have 10 months remaining on a fixed term contract. We are a young professional couple but didn’t think we would be able to afford a deposit for a mortgage for a few years, however we have found a new build property which would allow us to do this. We have found a new couple who are eager to move into our rented accommodation, we then spoke to the landlord who is happy for us to surrender our contract and for the other couple to begin a new contract.
The problem is with the estate agent working on the landlords behalf who has since advised the landlord not to allow us to do this as it is too risky, even though we have agreed to be guarantor for the new couple. we are desperate to get out of this contract as this is our only chance to buy a house for a long time to come.
As the landlord has agreed to this, does the estate agent have any say, also would a small claims court see these actions as ‘seeking to settle out of court’ should things go so far and we move out of the property?
Thank you
An agent is just that, an agent. They are not the principal and are not, under agency law, legally entitled to act against the principal’s wishes.
However they can advise, and if they advise a certain course of action, then their principal may decide to follow this advice. But the person who has the final say is the landlord / principal not the agent.
So you need to persuade the landlord to go against the agents advice and to order the agent to agree to your proposal. It may be worth considering why the agent is objecting. Will this course of action result in a reduction in their fees for example?
If you decide to just move out anyway then it will be up to the landlord whether the property is re-let to the couple you suggest or whether they just leave things and hold you responsible for the rent. The landlord is not under any obligation to find a new tenant, and you will remain legally liable until the end of the fixed term so it is a rather a risky thing to do.
Finally, I am a bit uneasy about your offer to guarantee this couple. If you do not know them very well this could be an expensive course of action if, for example, the main earner gets made redundant and they default on the rent. You need to think very carefully about this.
I am a private Landlady so am approaching this as if you were my tenants. I too would agree for you to surrender the contract and would reference the new prospective tenants myself to ensure they were 100%. Once they have passed any credit check/ provided me with ID documents and any other papers I might request the tenancy could then proceed. This ensure the new tenants are no less risky than the present ones. I therefore wonder if the agency are only trying to protect their position. It could be they would be liable to refund a substantial amount of fees to the Landlord, if the present tenants vacate early. The situation could then be resolved perhaps by the present tenants offering to pay these fees.
I do not feel it should be necessary for the present tenants to guarantee the new, incoming tenants, if the Landlord is given the chance to check the new tenants. This is a dangerous situation to be in as the incoming tenants could take advantage of the situation ie. would you guarantee a stranger’s loan with their bank? Of course not, yet this is basically what you are doing by guaranteeing to pay their rent if they default.
Good luck!
Tessa and Yvette cover the right legal points. What interests me is why the agent would try and block it, when they would make more money from a new sign up. Is your landlord attempting to bypass the agent Mary? That might explain their resistance.
A lot of agents are not going to have either the landlord or the tenant’s best interests at heart, just their own profit. NO offence meant to you decent agents.