Serious Breach... help appreciated...

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    Serious Breach... help appreciated...

    My gf and I rented a flat in feb from a large letting agency in london, we did everything by the books. After 3rd month, a bailiff came looking for the landlord, i coaxed out of him that it was regarding non-payment of the mortgage. (i had one of those feeling that something was up!)

    We stopped paying letting agent rent while it was investigated and asked that we be provided with written confirmation from the bank that mortgage had been secured before we resumed payments.

    This request was ignored, we were simply assured everything was ok and demands for rent ensued despite repeat polite requests from ourselves and eventually a forwarded e-mail from the landlord via agent threatening to sue us as we 'couldn't dictate the terms of the tenancy'.

    Anyway, the same day a letter addressed to the occupier came through the door, it was from the mortgage company saying they were aware we were occupying the property but that this was a breach of the mortgage as there is no buy to let clause and that they do not recognise our right to be there and will seek to remove us!

    I managed to speak to the mortgage people and they were reasonable saying we still had a couple months at least before anything happened, but how do we proceed, obviously the tenancy aggreement is completely null and void, and despite the fact we rented from letting agent, were shown the property, signed the agreement with and were given the keys by letting agent they are now saying that we don't have an agreement or contract with them! Who do we claim damages from, the landlord is in nigeria and im worried that we'll never be able to enforce a dmages claim on him and i feel that the responsibilities lie with agent as we have never met or spoke too the landlord!

    The contract is signed by the lettings agent and defines landlord/s 'as anyone with an interest, freehold or leasehold in the property at the end of tenancy.... and may include letting agent, collection agent, managing agent.'
    I can't see how the word 'may' can get them out of the contract, the laws of england and wales protect from any deceptive wording in a contract that favours it toward one party over the other, as is my layman understanding anyway...
    Help please!!

    thanks

    #2
    OP is pig in the middle. Mortgage lender (ML) will pursue repo from property owner (LL) If granted any Ts could normally expect 2 months notice to vacate but failure to pay rent could educe that to 2 wks.
    I suggest OP seeks alt accom asap
    LA is only acting as agent for LL & devoid of resp

    Comment


      #3
      There was a new Act passed last year, the Mortgage Repossessions (Protection of Tenants) Act 2010 which tenants and allows you to apply to the court for a two month stay on a possession order if the lender seeks one. Further details are here:

      http://www.crisis.org.uk/news.php?id=96

      You should seek urgent advice from your local CAB or at least the shelter hotline:

      http://england.shelter.org.uk/get_ad...dvice_helpline

      In the meantime don't go anywhere as this may give the lender cause to argue that the tenancy has ended. Inform them you are seeking legal advice on your rights under the 2010 Act.

      Please also answer the following questions:

      What does your contract say exactly in the signature block, is it just signed by the LA or does it say 'on behalf of x as LL'?

      When did your contract start and has the deposit been protected?
      Disclaimer:

      The above represents my own opinion, derived from personal knowledge and should not be relied upon as definitive or accurate advice. It is offered free of charge and may contain errors or omissions or be an inaccurate opinion of the law. I accept no liability for any loss or damage suffered as a result of relying on the above.

      Comment


        #4
        Either way nothing is going to happen quickly so you will have at least 8 weeks left at the property and a non court bailiff cannot just make you homeless so relax a little and take the advice posted above.



        Freedom at the point of zero............

        Comment


          #5
          thanks for replies

          The tenancy agreement was signed electronically using agreement express and only by 'Streatham lettings' it doesn't say signed on behalf of the landlord, although it does say the agreement is made between tenant and landlord, the landlord has no where signed physically or electronically our agreement.

          The deposit is held safely yes, but what i can't work out is that as there was never a buy to let clause in the mortgage, there was never a legally valid contract and no right to draw one up in the first place and so surely that is a failure on the agency's part for not carrying out the necessary checks before hand and allowing this to happen? It is quite safe to assume the mortgage has been in arrears for a month or two before our tenancy started on 1st feb and with the landlord in nigeria, how, would and should his authenticity/credit score/references have be checked?

          Anyone could rent out a house they have keys too whether the true owner which in this case is the mortgage company is aware or not and get away with it until the true owner found out as has happened here... but then if the agencies acting as respectable third parties don't have stringent checks in place and are devoid of responsibilities when the tenants rights are breached, then who is protecting the tenant from rogue landlords?! As a service who's only occupation is housing and housing law, It can't be hard to research who is in 1st lien position on a property and whether they allow for letting can it?

          I am not so much worried, but the customer service we recieved from agency was crap from the start and i'd like to sue them to recover our damages for this whole situation, including the cost for relocating, loss of earning etc... or -as i just thought -would we be better issuing the landlord with a commercial lien and attaching it to the property so that upon sale we would receive our damages and not have to worry about chasing him up... does that sound right or am i making that up?! Or can we pursue both the landlord and the agency?

          Thanks

          Comment


            #6
            Originally posted by peshy1984 View Post
            The deposit is held safely yes, but what i can't work out is that as there was never a buy to let clause in the mortgage, there was never a legally valid contract and no right to draw one up in the first place
            Oh really?

            Regarding Agent, you have no contractual relationship with them so would be unable to claim compensation through breach of contract, perhaps through negligence, that said, I'm not sure it would even work out, ultimately they act on behalf of their client, with whom you have a relationship, they take instructions based on face value, they cannot be expected realistically to undertake landregistry checks on every property and even if they did the landregistry is often known for being slow to respond to transactions, and ultimately hundreds of thousands of properties arent even registered electronically.
            [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

            Comment


              #7
              Contract is not the only cause of action that exists in English law. The OP may well have an action in tort against the agent, though this will be trickier to establish than one in contract. This may well depend on what exactly what was said by whom and when and a reasonable and objective analysis of all the evidence. That is very hard to do over an internet message board. This is why I gave the OP at least a partial solution to their most pressing concern, being made homeless, and then told them to seek further advice. This can include asking about a potential cause of action in tort.

              I reject the contention that it is impossible for a tenant to have any kind of contractual relationship with a letting agent. That is wrong. A contract made by an agent without qualification (ie without saying 'on behalf of') can make an agent liable in addition to the principal.
              Disclaimer:

              The above represents my own opinion, derived from personal knowledge and should not be relied upon as definitive or accurate advice. It is offered free of charge and may contain errors or omissions or be an inaccurate opinion of the law. I accept no liability for any loss or damage suffered as a result of relying on the above.

              Comment


                #8
                Originally posted by bhaal View Post
                I reject the contention that it is impossible for a tenant to have any kind of contractual relationship with a letting agent. That is wrong. A contract made by an agent without qualification (ie without saying 'on behalf of') can make an agent liable in addition to the principal.
                Er, in that case the Agent IS entering into a contact but as L.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #9
                  Originally posted by bhaal View Post
                  Contract is not the only cause of action that exists in English law. The OP may well have an action in tort against the agent, though this will be trickier to establish than one in contract. This may well depend on what exactly what was said by whom and when and a reasonable and objective analysis of all the evidence. That is very hard to do over an internet message board. This is why I gave the OP at least a partial solution to their most pressing concern, being made homeless, and then told them to seek further advice. This can include asking about a potential cause of action in tort.

                  I reject the contention that it is impossible for a tenant to have any kind of contractual relationship with a letting agent. That is wrong. A contract made by an agent without qualification (ie without saying 'on behalf of') can make an agent liable in addition to the principal.
                  An interesting post. Although you attempt to be correcting me, if you would re-read my post you would note i also cover the specific tort in mind (negligence). I am not sure you could satisfy the criteria of the various tests to prove negligence, certainly we could not comment on the information provided here.

                  I was simply commenting on the basis of the information provided within this post, I do not think the Agent has made such representations, without seeing the specific wording particularly the ... it's impossible to say. It's also worth actually taking into consideration the actual implication of the actions, OP always knew the LA to be just that, an agent.
                  [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                  Comment


                    #10
                    Meanwhile Peshy1984, have you resumed paying the rent? If not, isn't it possible that the landlord (whoever that turns out to be - owner, agent or mortgage company) could issue a s8 for non payment of rent and get you out sooner than 8 weeks time?

                    Also, is the AST definitely null and void? Might it not still be valid but simply the landlord change? Your fixed term would then remain intact, although you might find yourself paying rent to the new 'owner'.
                    IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

                    Comment


                      #11
                      I like you Grrr am still far from convinced that the contract between LL & T is "Null and void", it would take, in my opinion a court to make such a point.
                      [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                      Comment


                        #12
                        Why would it be 'null and void'?
                        [Oh, and 'null' in this context means 'void'!]
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                          #13
                          Originally posted by jeffrey View Post
                          Why would it be 'null and void'?
                          [Oh, and 'null' in this context means 'void'!]
                          Because the OP said so?!?
                          [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                          Comment


                            #14
                            Originally posted by MrJohnnyB View Post
                            Because the OP said so?
                            No. OP might have wanted it to be held invalid- but I've yet to see why that should be the case legally.
                            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                            4. *- Contact info: click on my name (blue-highlight link).

                            Comment

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