How to serve while I am abroad on a fraudulent agent

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    How to serve while I am abroad on a fraudulent agent

    Hi all,
    I previously posted on this topic asking whether this was theft or not

    Background:
    1. New landlord; property in outer London
    2. Contracted an agent to find a tenant last year
    3. Prospective tenant was found and holding deposit taken (in May 2019 - exact dates are unknown as the agent is refusing to tell me)
    4. Tenancy agreement was not signed as the tenants were found to have given false information (and they were trying to sublet my property through social media even before the tenancy agreement was signed)
    5. I rejected the tenants
    6. Holding deposit (~500) was never returned to the tenants; the agent admitted not returning to the tenants but is refusing to disclose the amount, date received and of course no money has been returned to me.
    7. I understand that holding deposit is generally taken to cover the administrative expenses of the agent, however, here the amount received far exceeds that and the property was taken off the market for the wrong tenant which caused me financial loss. I also I find that the agent's action, having been appointed by me and the fact that the money was obtained to secure my property, to be fraudulent - is this against the law of agency (making secret profit without the knowledge of the principal and thereby breaching their fiduciary duty to me)?

    8. I have, of course, subsequently sacked the agent.

    Questions:
    1. Is this fraud under the Fraud Act 2006 (Section 3 and 4)
    2. I will be sending LBA soon and will be starting MCOL (I do have a address for service in England) but how do I serve the particulars of the claim to the agent as I am currently abroad? Can I send it in recorded delivery but the agent may refuse to receive it? Or shall I ask a friend to post it in first class and obtain proof of address.

    Thanks in advance

    Eve

    #2
    1 - Probably not. And, even if it is, who's going to prosecute it?
    2 - Post and proof of posting.

    You'll have to appear in court or appoint a solicitor to represent you.
    It might be worth starting with a solicitor to do the LBA - a solicitor's letter is a useful lever.
    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


      #3
      Thanks JPK

      1. My understanding is you don’t need criminal prosecution; civil prosecution is fine (yes, they won’t go to prison)
      2. Thanks

      Do I need a solicitor? I thought small claims track was meant to be for civilians to deal with the matter without the legal expertise? Thanks

      Comment


        #4
        You'll either need to be in the UK when the case is heard or have a solicitor to represent you if you're not in the UK.
        But, you're right, a small claims case doesn't need a solicitor otherwise.

        I find a solicitors letter often brings matters to a head quite quickly.
        Obviously, there's a cost to using them.
        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


          #5
          I think you need to forget about fraud as the standard of proof is very high.

          As others have suggested, you going to have diffiuclty pursuing the agent from abroad without a solicitor. Apart from that, the issues involved are not straightforward and I cannot see the case being allocated to the small claims track.

          Comment


            #6
            Thank you both.
            To give you both more context, I wouldn't normally be pursuing this and this is not worth my time. The agent keeps harassing and threatening me about commission that is due to him - he wants commission for a tenant he introduced but neither party ever signed an agreement. LC, I briefly discussed with you last year.

            He sent me an LBA in Oct 2019 and I replied to his LBA disputing and discrediting his claim and also asked for more info. On receiving my reply, he suggested we both would honor TPO's decision (I had complained to TPO prior to him sending the LBA). TPO did not award any financial compensation to me (their whole report was biased towards the agent and it was a waste of time but good learning) neither did they comment on his commission.
            Now this agent has come back threatening to sue again just because TPO did not award me anything despite the fact that TPO did not comment on his commission at all. He has been threatening for the last four months but I haven't seen any LBA. Despite clearly instructing him that my residential address is abroad, he threatens to send the LBA to my previous address in the UK (which is currently rented) - I don't think it counts as last known address as he clearly knows my address abroad and I have clearly instructed him that would be the address for service.

            I am just worried that these cowards may simply send to my rental address which I have left more than a year ago and get a summary judgement - of course, I doubt he knows about service outside of jurisdiction etc, and he has been using one of these firms who send out LBA for a tenner with nothing other than a template wording, a contract and an invoice. I have absolutely no doubts about discrediting his claim (he probably knows that too) but of course litigation has its wonders. Rather than worrying about receiving his LBA, summary judgement etc I was wondering whether I should go on the offence to put this issue to bed altogether? Also, the longer I leave it, it maybe hard to prove my claim as he may simply claim that all the relevant documents have been destroyed.

            I totally agree fraud is a high bar to prove, however, just reading the letter of the law (section 3 - fraud by failure to disclose info and section 4 - fraud by abuse of position), it appears his actions amount to fraud. I also think it will teach a lesson to someone like him about defrauding client's money.

            I hope that clarifies that position further and I welcome your comments.

            many thanks,
            Eve

            Comment


              #7
              The agent is entitled to use the last address in England and Wales they have for you for service of legal documents.
              You might want to sort out a mail re-direct for anything in your name.

              They could very easily get a judgement against you (and may already have done).

              I also agree with lawcruncher, if you're trying to sue the agent for the holding deposit, that's one thing.

              Making a claim for fraud is a bit of a reach and not appropriate for a small claim.
              The TPO decision is going to be difficult to overcome for any claim that you make - their decision is usually binding on both of you.

              Personally, I think I'd focus on defending the letting agent's claim rather than trying any claim against the agent.
              That way the burden of proof is on them, not you.
              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


                #8
                Thanks JPK,
                People have successfully sued letting agents even after TPO haven't found the case in their favour. There have been at least two recent cases:
                Saul Shelvin vs Sequence
                Hale vs Blue Sky Properties
                I have a redirect currently to my mother's address so it's not a problem but they may claim that they have served without serving?
                I am not sure about them serving at my last known address to them - I have instructed them clearly that my address my service is abroad.
                thanks,

                Comment

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