Tenant moved in without knowledge

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    Tenant moved in without knowledge

    I am new to the renting/letting out field. Apologies for any mistakes.


    I hired a managing/letting agent to market my place and do the necessary checks. I opted for a full management service.

    I was introduced to the prospective tenants in the office after the agent told me he had done the checks etc.

    I did not at any point agree to a specific moving in date. In return, I told the agent that I still had to get a gas safety certificate done and arrange for that. As I believe that needs to be done prior to tenants moving in. The agent also told me he would send me the tenancy agreement to review and sign shortly after.

    No such document arrived.

    I was under the impression that until I did not review the tenancy agreement, agree to a moving in date which would be dated on the agreement and provided the agent with relevant legal documents (gas etc) that he could not grant possession nor would the agreement be legally binding.

    Instead, few days later my agent rings me to ask for my bank details to transfer the rent in. To which I said not yet as I will let you know the date shortly. I was confused as to why the rent had already been paid considering I did not sign any agreement nor agree to moving in date.

    After that, I went away for two days to visit a friend. I come back to find the tenants had possession of the keys and were moving in their belongings. I contacted the agent ASAP and arranged to meet him.

    I told him I was not made aware that keys had been exchanged and nor did I receive any sort of document to review and sign the agreement. He told me my signature was not important. I was confused.

    I told my agent that I am not signing the tenancy agreement dated for the 20th as I was not even made aware of that. I also don’t understand how the agent could grant possession given that I told him I still needed to get the gas certificate and EIRC done. As I thought those checks had to be done prior to moving in date.

    Also I did not even have a chance to take a photo of the meter readings or see the inventory. I also realised the agent has not done a thorough check on the tenants as there is no credit report nor a guarantor/landlord reference. The agent was paid a deposit and he has not even put it in a deposit protection scheme.

    What can I do regarding this matter?

    #2
    The agent has made a number of serious mistakes which have negative consequences for you and (probably) not for them.

    How did you find the agent?
    Do you have a solicitor?
    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
      I do not have a solicitor.
      I suspect you're going to need one.

      You are right that you need to have completed an EICR (electrical check) and have a gas safety certificate in place before letting a property.
      Those are both omissions that can result in a fine.
      Not having a Gas Safety Certificate in place when you let the property probably means that you will never be able to use a section 21 notice to evict the tenant(s), which puts you at a significant disadvantage.

      You need to get both things done as quickly as possible - if the agent is providing a full management services, they should be able to arrange this for you (although they don't seem even minimally competent).
      And you should pray to your deity of choice that you pass.

      The agent needs to protect the deposit and give the tenant the Prescribed Information within 30 days (or pass it to you now for you to do this - which I suggest is your best course of action).

      The agent should have completed the inventory and recorded the meter readings (and updates the local authority and the utility suppliers).

      I would demand a copy of the tenancy agreement and check who is recorded as the landlord and the tenant, at very least.

      You should also demand the details of the credit information used to verify the tenant(s) could afford the rent etc.
      The agent will undoubtedly tell you that they can't do this because of data protection or GDPR.
      This is not true, they should have secured the tenant(s) permission to pass on the data to you (as a minimum) and, as they were collecting the data for you, it is your data, not theirs.

      They are, generally, correct that they don't need you to sign the tenancy agreement, but not if you had told them that you wanted to see and sign it before the tenant.
      They are working for you and owe you a duty of care to do things right.

      And, regardless of the situation with your signature, letting the property without a Gas and Electricity certificate in place is unlawful.

      But they sound completely useless.
      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


        #4
        Does this agent has other branches? Are they a member of any bodies? If they are contact the branch manager/director and deal with them on this matter, if they are not then contact the body that they are member of, if they aren't (which they should be) then you need legal advice and trading standards is a good place to start.

        Comment


          #5
          This is a potentially serious situation.

          First and most importantly a criminal offence has been committed. The OP may be saved by section 36 of the Health and Safety at Work etc. Act 1974 which provides:

          Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

          The OP should contact a solicitor without delay so that an explanation can be given to the relevant prosecuting authority.

          Secondly, as far as I know, the law is still uncertain on whether the failure to provide a certificate before the tenancy starts means that a section 21 notice can never be served; the last I heard an appeal to the Supreme Court is pending. The solicitor also needs to be instructed on that issue and advise what action should be taken against the agent.

          Comment


            #6
            Originally posted by Lawcruncher View Post
            Secondly, as far as I know, the law is still uncertain on whether the failure to provide a certificate before the tenancy starts means that a section 21 notice can never be served; the last I heard an appeal to the Supreme Court is pending. The solicitor also needs to be instructed on that issue and advise what action should be taken against the agent.
            The current position is that the failure to provide a certificate is not fatal for subsequent s21 notices, but in the case where a check had been carried out.

            The situation where no check had actually been carried out is still uncertain.
            And I can't imagine that it's in the interests of any landlord's body to try and determine that, the "optics" wouldn't be great.

            The OP needs a solicitor (and has deleted at least one post, so I think they're gone).

            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
              The current position is that the failure to provide a certificate is not fatal for subsequent s21 notices, but in the case where a check had been carried out.

              The situation where no check had actually been carried out is still uncertain.
              Thank you. I had not appreciated the distinction.

              Comment


                #8
                Thank you for your advise.

                The agent has said he was not aware that I did not want to grant possession. I think it is a cop out as I did not specify the date the tenants could move in and told him I was awaiting to get the electrical and gas checks done.

                But despite that I still do not get how he could give possession without legal certificates in place, surely that is a basic for any letting agent. Even if he assumed I was okay with the tenants having possession.

                I was not given the chance to review the agreement beforehand as well. It was signed by the tenants and given to them and the keys all without my knowledge.

                I also requested single household tenancy, however, I find out now that the people on the tenancy are not even related. I requested during the viewings that I will only let to a family and not multiple individuals

                Comment


                  #9
                  Originally posted by Ra101 View Post
                  I still do not get how he could give possession without legal certificates in place, surely that is a basic for any letting agent.
                  Yup. You would think so.


                  Originally posted by Ra101 View Post
                  I also requested single household tenancy, however, I find out now that the people on the tenancy are not even related. I requested during the viewings that I will only let to a family and not multiple individuals
                  How many, two? This is important. (HMO.)
                  There is a fine line between irony and stupidity. If I say something absurd please assume that I am being facetious.

                  Comment


                    #10
                    3

                    I was led to believe they were related. However, I’m dubious now considering the mistakes the agent has made consistently.

                    The utilities still have not been changed nearly 2 weeks later nor was a meter reading taken. I’m still getting billed. When I told the agent of this, he just said it’ll get done eventually.

                    He still has not protected the deposit.

                    He is now claiming that I was aware of this and agreed to the possession. However, I did not. I have a written email to say that I required specific checks done on tenants and also a written email to not to take rent and I will take once my checks/certificates are done. But he took the rent.

                    Comment


                      #11
                      The dates I went away to visit my friend, I activated my alarm (smart alarm) for 3 days. This was between 20-22nd. Surely, if I was aware the possession was to be granted on the 20th, I would have not activated the alarms and transferred administration of the alarms to the tenants.

                      Comment


                        #12
                        "An entire house or flat that is let to three or more tenants who form two or more households and who share a kitchen, bathroom, or toilet facilities" is an HMO according to Housing Act.

                        For one thing, the agent is required to be registered with an approved redress scheme. Find out which one.

                        Many issues here, needless to say.
                        There is a fine line between irony and stupidity. If I say something absurd please assume that I am being facetious.

                        Comment


                          #13
                          Sorry for asking too many questions

                          I know you guys cannot answer for definite but would there be a genuine case against my agent if I were to take matters to a solicitor. And roughly how much would this cost?

                          Would there be a way to get my property back? Given that I was unaware of possession being granted. I doubt it, considering the tenants had done their part, but thought I’d ask.

                          Comment


                            #14
                            Also the EICR and gas check done today

                            passed all

                            Comment


                              #15
                              Originally posted by Ra101 View Post
                              I know you guys cannot answer for definite but would there be a genuine case against my agent if I were to take matters to a solicitor. And roughly how much would this cost?

                              Would there be a way to get my property back? Given that I was unaware of possession being granted. I doubt it, considering the tenants had done their part, but thought I’d ask.
                              You need professional legal advice, your agent is so incompetent they are putting you at risk.

                              Three people who are not one household in your property means its an HMO (although it may not need to be licensed as one).
                              That means it has to have a formal fire risk assessment and will (almost certainly) need fire resistant doors and a proper fire alarm system that needs regular testing.
                              You might find that the local authority has a ban on creating an HMO in your area.

                              You can get into serious trouble for running an non-legal HMO.

                              The gas and electrical tests not being done is, potentially, thousands of pounds of fines.

                              The non-protected deposit is more financial risk.

                              And there's lots of other things that need to be done that I wouldn't trust your agent to have done (like testing the smoke alarms).

                              You need to know what you can possibly do, as quickly as possible.
                              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

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