Agent moved tenants in without lease or inventory

[sunderam]

Great forum. Really hope someone can help.

I recently instructed a small ARLA registered lettings agency to let my flat. They promptly found tenants (too many for my liking) and after some discussion (via satellite phone as I was in very remote area) I agreed to the 3 tenants instead of 2, subject to addition of a cleaning clause, and a reduction in the letting agency's commission.

We had a few more conversations on the sat phone over the next few days and dealt with inventory (my previous inventory woman agreed to update existing inventory for much better rate than getting a new one), cleaning (which needed to be done), and informing a someone staying in the flat of the new tenancy so he could move out of my flat.

When I eventually return to the land of email and phones it is a day before the new tenants are due to move in. I had requested the date be put back (to give me more time, and to make sure clean and inventory were organised), but the letting agents said one of the tenants was v keen to move in because she had nowhere to go.

However on that evening prior to the move-in, I discover my friend is still in situ as the letting agents haven't informed him about the tenancy. He is not best pleased at being asked to move out overnight. I also discover they have arranged for new inventory because they left calling my inventory clerk too late. I discover in the terms sent to me by email that they haven't reduced their commissions as discussed on the phone. And they haven't sent me a lease for perusal and approval as requested.

What follows (to try to keep this short) is 2 weeks of hellish chasing and incredible mismangement by this letting agent. I expressly refuse permission for any tenants to be moved into my flat until terms and lease are approved and they ignore me, moving in the one tenant as she would otherwise be 'homeless'

After multiple requests I eventually get a copy of the lease and discover that the clauses agreed (cleaning etc) which led me to agree to having 3 people in my flat have not been added.

Then there are problems with cleaning, and finally I discover that they have asked the inventory clerk to update my inventory without going to my flat, using some information I had sent them for their records!

Bottom line is 2 weeks after they moved in 3 tenants (against my wishes - and I must have sent about 10 emails about this), I have still not approved of the lease, fully agreed terms of business or signed any document with them. I have no inventory to protect my goods and my flat, and Duck and Hedges spend more time arguing points and being "confused" than sorting this issue. I've lost complete faith in them.

I have officially complained to them, which ARLA indicated is a first step before I can complain to ARLA. But it would be helpful to know my legal position. I clearly stated I didn't want a move-in without terms agreed and they ignored me. I haven't signed anything. But I do have these tenants in my flat. I gave letting a deadline of yesterday to sort out 16 points of contention after they missed a Friday deadline. They haven't come back to me.

How can I extricate myself from this? I don't want them to manage my property after this terrible start, and am willing to evict the tenants (poor people have no idea of this storm going on I think) if that's what is necessary to remove myself from any dealings with this letting agent. If not, any idea how to keep these agents on track
? Any help much appreciated.

[lorenzo]

Notwithstanding everything else (which those more qualified than me will comment on), why would having three tenants warrant a reduction in commission? It seems irrelevant.

[islandgirl]

Sorry to hear about all this. My agent moved in tenants without my knowledge and against my express written wishes - I told the agent he did not have authority to sign the AST but he did, for example. I did not even know a tenancy had started until I went round to check the property. He had also not done the pretenancy checks requested in writing and he took half the deposit I told him he had to take (again in writing). I did not want these people in the house and argued that no tenancy had been created. I spoke to a specialist solicitor who said that in spite of everything the AST was valid and that I had no claim whatsoever against the agent UNLESS there was material loss at the end of the 6 month tenancy (ie they did not pay rent or had caused damages etc). Fortunately they moved out after the 6 months and left the place OK, but it could so easily have been different. I think you will have to live with the AST...my agent was not ARLA certified (lesson taken on board) so perhaps someone else can tell you how ARLA can help. Good luck.

[sunderam]

Just to respond to both above messages.

The reduction in commission was because another agent was also sniffing around.

Am quite gutted to hear that an AST that I have never seen can be signed on my behalf. It isn't signed actually by anyone other than the tenants.

Was the AST valid because you had signed tems of business with the agent? I haven't even done that! Frustrating all this.

Thanks for the responses so far

[J4L]

Regardles of what anyone says you don't always get 'perfection' when you use an ARLA registered agent.
Some say it is a 'must' but from personal experience it doesn't really matter.
You need to know that they have expertise in their area and a sound knowledge of what they are doing.


Now i may get shot down in flames over this comment but I can assure you that it's down to the agent rather than their qualifications. These mean NOTHING!!!!!

[islandgirl]

Hi Sunderam - no I had not signed terms of business. I had stated in writing that under no circumstances was the agent to sign the AST - I had to do it. I also had not seen the AST used by the agent - I did not think I needed to as I intended to use mine. I engaged him only to FIND tenants, not to go any further without my permission. I had also stated how much deposit he was to ask for and which credit checks I needed (again in writing). I had written and told him he could act as my agent only on this basis. He ignored this and put tenants into my house taking the wrong deposit, not getting credit checks and signing the AST. I had not seen the AST until after the tenants were moved in. The agent's AST was terrible - littered with spelling mistakes and poorly worded. I could do absolutely nothing. Sorry to be the bearer of bad news...

[Bel]

The upshot of what Islandgirl says is that if the tenancy does go horribly wrong and you are out of pocket in any way, the agents WILL be liable if you chose to persue them.

Also if they are ARLA agents, you can complain to ARLA even if you do not make a loss and they will be 'punished' by ARLA. The procedure may take some time, but I would get started right away.I complained to the NAEA about my agent, and I think they were fined and warned. This was not enough. A few months later, they did a bunk with a lot of money. Thank goodness I was out of there.

Although the agent does not necessarily require your signature to act on your behalf, you could terminate any implied contract with the agent immediately on the grounds that they have made a serious breach by not following your instructions and take over management yourself or find a new agent.

[islandgirl]

I would agree with what Bel says re the agent but the key point is you are stuck with the tenants. If you want them out at the end of the 6 months issue a section 21 asap....that is provided the AST is for 6 not 12 months...

[Planner]

Have they put the deposit in a TDS as well!!

[sunderam]

Thanks for the further information.

The deposit is supposed to be in a protected scheme.

And having sent a 15 page detailed letter of complaint, they are moving now to rectify most of the errors - altho naturally at my cost, which is causing more issue.

Break clause is at 8 months, which I find unusual. Tenants seem OK themselves. Its just that there is no inventory etc etc

Glad also that there is some recoursive action.

Lets see what happens over the next day or so.....

[sunderam]

Having said that agents are moving forward, it has now gone completely silent and they are simply doing nothing. So I remain with no signed lease, no rent coming into my account, and no inventory.

Can I issue sec 21 if AST has 8 month break clause

Agents agreed to adjust commissions, and send a letter for tenants signature about the changes (actually the clauses I stipulated) for tenancy to take place.

Deadline for response to official complaint as per ARLA rules has also expired.

Again - any further help much appreciated

[Bel]

Having said that agents are moving forward, it has now gone completely silent and they are simply doing nothing. So I remain with no signed lease, no rent coming into my account, and no inventory.

Can I issue sec 21 if AST has 8 month break clause

Agents agreed to adjust commissions, and send a letter for tenants signature about the changes (actually the clauses I stipulated) for tenancy to take place.

Deadline for response to official complaint as per ARLA rules has also expired.

Again - any further help much appreciated

Why no rent? I didn't catch that from your previous post. Have tenants not paid any rent at all?


Even though no agreement has been signed (or not the one you want) there is a tenancy in place. The tenants do not have to sign anything or agree to new terms if they don't want to.

Suggest you complain to ARLA
Suggest you sit in Agents office until you get satisfaction and a cheque (Surely they took first months rent in advance)
Sack agents. Demand all fees back.
Suggest you look for new agent who will take over the mess and advise you on serving notice etc.
Take agent to court for any losses later.

[sunderam]

[QUOTE=Bel;51658]Why no rent? I didn't catch that from your previous post. Have tenants not paid any rent at all?


A few more questions

I haven't signed terms with agents, so can I sack them? I technically haven't "hired" them as we didn't agreee terms.

What happens as regards the tenants they moved into my flat?

I live abroad so can't sit in their office (although am trying to persuade friend to do this). But agent is saying they can't pay me rent until I sign terms of business and I am saying I can't sign terms as they are not as agreed. So going round in circles.

Have found new agent. Can complain to ARLA.

[Surrey]

Surely they can't accept the money from the tenant without authority from the landlord, i.e. their principal? This sounds like shockingly bad practice on their part. It seems to me that you have already had material losses, seeing as your tenant has (presumably) paid rent but you haven't had the rent and so are not getting any interest on that money. Don't take any of their bluff and bluster. You have ALREADY told them under what terms they may act for you, and their continuing to act infers their acceptance of those terms. Under no circumstances sign any additional terms with them as that would negate your previous instructions.

Write to the agent instructing them to hand over the rent that they have collected immediately, IN FULL WITH NO DEDUCTIONS, and with compensation of interest at the same rate as the court would impose, and tell them that because of their clear breach of terms which you sent them on [date of your letters] that in the avoidance of doubt (that's a great phrase to use, so use it) you are disinstructing them as your agent with immediate effect. You could also remind them of their obligations as an agent not to act to the detriment of their principal as shown in a great deal of case law, and that if they do not hand over the money (give them a bank account into which they should pay it, to avoid the "the cheque's in the post" rubbish) that you will have no alternative but to start court action. You could mention that handing over the money does not remove any potential liability in the future based on their actions so far. Tell them that if they do not refund the money IN FULL that you will not contact them again but will start proceedings in the County Court. But only say this if you ARE prepared to take action against them, presumably at this stage for the rent that they have collected but have not handed over, plus interest. And if they don't cough up IN FULL by the date you state, don't contact them again except by sending them a claim form.


In the meantime, speak to your tenants and then write to them to confirm what you've said. Write to your tenants immediately confirming your conversation of [give date] informing them that in the avoidance of doubt (do use this phrase) you have disinstructed XXX as your agents (use the term "disinstructed") and that from this instant they are to pay all rent in full to you, at [give account name and number]. Do mention in your letter that they are liable for XXX rent per month to be paid to you, the landlord, and that if they continue to pay the letting agent and not you following this letter, that they may be subject to eviction for non-payment of rent, even if they pay the agent. I suggest you speak to them first, if you have any contact numbers for them, informing them that this letter is purely in case you need to pursue the agents, that you are happy for them to stay in the property as long as they pay the rent, but they HAVE to pay it to YOU and not to the AGENT.

It is important to include "in the avoidance of doubt" in both letters, because without it the agent could argue that you had agreed to accept them as your agent. When writing to the agent, you are disinstructing them "in the avoidance of doubt" just to make it perfectly clear that they do not have any authority to act on your behalf. Similarly when you inform the tenants you are just informing them, you are not accepting that you ever gave the agents authority to act for you.

Landlords please note, this is supposed to be an ARLA registered agent and they are still acting appallingly.

[sunderam]

thank you so much for the comprehensive response. I will do so