New agents and rights to documents.

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    New agents and rights to documents.

    A colleague recently left the company with agreement, and her mother’s property was left free by the company. She has now instructed another company to take over the property, which is the best thing. But the new company has insisted on all the paperwork to be sent to them.
    The agreement is fine but the references and right to rent check were paid for by the company and due to the new data laws, we do not feel this is something we can send without the tenant’s permission, and there was no payment made. The tenant’s details are also a bit of an issue again with data protection, we feel we should contact them for permission to pass these on. The deposit the new company can sort out.
    And lastly the inventory was carried out by the company we use as a favour, and that surely is their property and they should be able to charge for a copy to be sent to the new agent?
    It may sound petty, but the company has lost income due to this colleague and was happy she left, but they do not see why they should have to cover the cost now she has left.
    What are other thoughts on this? And what legally is she entitled to?

    #2
    Please re-write as I'm confused - but then I'm old.

    Could you specify "old company" and "new company". And also what data control agreement has the tenant signed, please, (& the colleague that left...).

    And "agreement": What agreement please - AST, or between "old company" and "colleague that left"...

    Is the same landlord involved all the way through? If so has landlord instructed old company to co-operate with and pass data to new company?

    What further fees or charges does the old company expect to charge?
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      I can't really figure out who you are or what you are asking as above. Data protection does not have anything to do with an agent providing data to their client about a tenant if that is what you are asking. Seems from your older posts that you are an agent.

      Pass on all the data required to the landlord. It is not yours to keep private - it belongs to the landlord to use, read and keep under DPA rules that apply to the landlord. You are an agent of the landlord and you do what they say.

      You certainly cannot charge the landlord for a copy of the inventory -- you should have given it to them in the first place. It does not "belong" to the inventory agent.

      Presumably "left free" means "let for free"

      Comment


        #4
        I know this thread is a bit of an old one, but I thought I'd add my 2 cents. As far as I know you should not pass on specific information regarding a tenant/applicants reference or application without their express permission.

        We had a case a while ago, where some applicants didn't want the landlord knowing the specifics of their referencing information. We had to speak to some legal advisors who stated that under no condition should we share the tenants earnings, etc to the landlord without their permission.

        With Data protection even prior to the new GDPR regulations, Tenants, in no uncertain terms, have to consent to you passing their application/referencing data over to landlords. If the tenant does not give permission you can land yourself in hot water. Ultimately the data collected is the tenants private information, and if they paid for the reference, which is common practice, you can't even argue that it belongs to the landlord.

        We came up with the hypothetical situation, which would make all parties involved upset.

        - Tenant pays for the referencing and passes
        - Landlord requests to see their specific financials, which the tenant rejects
        - Landlord proceeds to reject their application on that basis
        - Landlord now liable to cover the tenants fee's, which then need to be refunded as they passed their referencing and have been rejected through no fault of their own

        While we are yet to have this specific situation occur, it's fairly common for tenants to state that they don't want the landlord to know their personal savings or investments. Ultimately, if a tenant is being overly difficult it sends out red flags and I would be cautious. Also, going forward, get tenants to sign disclaimers allowing us to share all data collected with the landlord.

        Things like inventories, tenancy agreements, invoices, maintenance records etc are perfectly fine to pass over. They're usually jointly owned by both the agent and owner, after all (going from the top of my head) we have to keep records of all that kind of stuff for 8 years.

        Comment


          #5
          The above is simply not correct. The logical extension of what you say is that the "data" shouldn't even be passed onto the agent. The "referencing agent" should simply tell the agent to accept the tenant based on their own acceptance criteria.

          The report and financials should be sent direct to the landlord bypassing you as "agent" - why do you need to be involved at all.

          There are so many odd things here I don't know where to start. Tenant having their application rejected because they decline disclosure is hardly "been rejected through no fault of their own".

          Oh dear -- what are agents for exactly -- money grubbing intermediaries, or agents (i.e like secretaries).

          Comment


            #6
            All this is doing is highlighting the mess that agents have fallen into, over time.

            I’m a landlord, so I think of agents as just that. An actual “agent”, with the duties and obligations that are analogous with that role. But, as pointed out, agents also work for prospective tenants, and owe them obligations as suppliers of services to them.

            To highlight the conflict... When carrying out checks on a prospective tenant, the agent typically gathers information about the tenant. That’s likely to be because they’ve agreed to provide a service to the landlord. That also means, in DPA terms (and probably GDPR terms), they’re a Data Processor to the Landlord’s Data Controller.

            But the tenant is also paying the Agent, and, as the agent’s customer, is giving them data for a different purpose, one for which the agent is a data controller.

            I’ve never encountered a Landlord who has an appropriate contract with their agent as their Data Processor.

            So who owns the data, who’s responsible for it and who can use it isn’t resolved.

            There’s a general view that Data Protection is a bit of a joke (not assigning that view to anyone posting above), but it’s purpose is actually highlighted by this issue. Because the parties involved (which is pretty much all Landlords and Agents) don’t do what they should/are legally and practically required to, they all think the data is theirs and can’t actually show it is or isn’t.

            And because no one seeks the tenant (or prospective tenant’s) permission to pass data on they shouldn’t/can’t (in the absence of a proper data controller/data processor relationship).
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              Originally posted by jpkeates View Post
              All this is doing is highlighting the mess that agents have fallen into, over time. Etc
              You raise two issues.

              On data protection I refer to Tessa's blog here: http://www.landlordlawblog.co.uk/201...-their-agents/ I agree with everything she says, including her reservations about the advice given by the Information Commissioner.

              I add to what Tessa says by quoting section 36(2) of the Data Protection Act 1998:

              Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—

              (a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

              (b) for the purpose of obtaining legal advice,

              or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.


              Apart from what Tessa says about the relationship between the agent and the landlord, it has to be the case that a landlord on receiving references and other information on the tenant (whether directly or via an agent) can refer it to a professional adviser such as a solicitor or accountant for advice.

              As to agency, I do think there is any doubt that in negotiations for a tenancy the agent's client is the landlord and not any prospective tenant. The agent's primary duty is to the landlord. That does not mean though that the agent can mislead the prospective tenant and he must deal with him fairly.

              Comment


                #8
                That's an interesting interpretation.

                I don't think the exemption applies to data that could be referred to a professional advisor for advice. Otherwise almost anything could be exempt, because almost anything might be referred to a professional for advice. I think it refers to data that is needed to obtain legal advice - so if the advice is about a tenant, that tenant's data might be exempt, not all tenants' data.

                The problem the agency have is that they are usually charging the tenant and the landlord for (broadly) the same service. Typically an agent charged a fee for credit checking and referrals - so, even if they're doing it as part of their service to the landlord, they also need the same data for their own commercial task. And the process isn't simultaneous. A tenant goes through the vetting process that they pay for usually before the landlord knows they exist. They might also fail the process and the landlord have no idea they exist.

                And if the agent is collecting the data on behalf of the landlord, the landlord's contract with the agent has to include specific terms about how the data is to be stored and processed, under both the DPA and the GDPR - and I've never heard of a landlord with such terms. I like to be pretty diligent (/petty) about this stuff and I don't have such an agreement with my own agent.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Originally posted by jpkeates View Post
                  All this is doing is highlighting the mess that agents have fallen into, over time.
                  That's it in a nutshell. If agents were agents there not be this problem. The whole thing is ludicrous.

                  On the same basis a solicitor acting for a client would not be allowed to reveal to their client information received from the "other side". That doesn't happen, because solicitors (at least in this respect) do their jobs on the whole -- not some made up role as a sort of marriage maker. An agent is a type of secretary - no more.

                  It should be straightforward. Agent makes it clear to prospective tenant that they are agent for the landlord and any information given to them will be shared with their client (in fact given to their client -- there is no reason for agent to see the data at all unless landlord and tenant gives AGENT permission. Tenant says "no" - agent says sorry good bye.

                  Yet another reason not to use an agent (who is not an agent) - I would NEVER accept a tenant knowing nothing about them. Anyone who would is an idiot.

                  Comment


                    #10
                    Originally posted by AndrewDod View Post
                    The above is simply not correct. The logical extension of what you say is that the "data" shouldn't even be passed onto the agent. The "referencing agent" should simply tell the agent to accept the tenant based on their own acceptance criteria.

                    The report and financials should be sent direct to the landlord bypassing you as "agent" - why do you need to be involved at all.

                    There are so many odd things here I don't know where to start. Tenant having their application rejected because they decline disclosure is hardly "been rejected through no fault of their own".

                    Oh dear -- what are agents for exactly -- money grubbing intermediaries, or agents (i.e like secretaries).
                    TLDR version: Get the applicants to sign a disclaimer that they are happy to share all personal data with the landlord when you collect references. Better safe than getting in trouble for data protection breaches.

                    The Agent is in effect the one collecting the data, on behalf of the referencing company. The agent is then charged by the referencing company, and then goes on to charges the tenant (usually an inflated fee that is now sadly standard practice). A proper agent shouldn't be charging both the tenant and landlord to complete the same task. Most get around this in their advertised services by stating that they "collect" tenant references. The landlord is in reality kept out of this data collection, as the agreement is between the tenant, agent and referencing company. The actual 'data' that landlords own prior to a tenancy taking place is rather minimal.

                    Things like, phone numbers, applicant data, requirements, employment status etc etc all have to be protected otherwise the agent can get into trouble for releasing personal data. The only piece of data I can think on the top of my head, that the OP shouldn't forward to the new agent is the referencing document, which in all honesty, in the modern job market, is most likely to be severely outdated anyway.

                    As such, with both new and old data regulations, we've personally decided to make tenants aware and sign a disclaimer that the Landlord is allowed to view their application data. If a tenant doesn't do this, they don't get to rent the property. Concerning if an applicant is "rejected through no fault of their own", sadly agents have codes of conduct landlords don't have to adhere to. If applicants provide all the relevant details, and was rejected by the landlord on that basis and raise a complaint, the ombudsman would most likely side with them.

                    The *legal* defense posted by Lawcruncher.... I think that it would be a bit of a stretch to say it could be shared, unless the landlord decides to take the tenant to court or speak to a lawyer (which they would then have to prove it was necessary to do so)!

                    *On a side note* Many landlords often decide to reference tenants themselves. While many buy to let mortgages simply state that tenants are adequately referenced in vague terms, some mortgages are more specific, requiring independent references being completed. I don't know many landlords personally who use referencing companies.

                    Comment


                      #11
                      The point that Tessa and I are making is that it has to be implicit in the nature of the landlord/agent relationship that the agent shares all the information he receives about the tenant. If that is not the case it effectively cuts the landlord out of the decision making. Also highly relevant is that a landlord can obtain exactly the same information as an agent can - preventing an agent disclosing the information is pretty pointless.

                      I drew attention to section 36(2) not so much as authority for an agent to supply information to a landlord, but for a landlord to show the information to a professional adviser. Some people like to run stuff before their lawyers and/or accountants before taking important decisions. As above, there is also the point that the information is not really being "disclosed" if the lawyer or accountant can lawfully obtain it for himself.

                      Comment

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