is there a fixed contract in place?

[AndrewDod]

Thanks. To complicate matters, yes we had been paying an increased rent since the Summer. We have spent quite a bit of time on the phone to Shelter, who are adamant that an agreement to pay an increased [or decreased] rent can be made at any point between a tenant and landlord, and in itself isn't enough for the agent to say we've inadvertently accepted the full terms of a new contract. We did write to the agent to say we weren't happy with the agreement and that it was full of mistakes - so It would be difficult for them to say our intention was to proceed?

Ahhh.... Afraid that changes things hugely. If an intrinsic part of the new AST was the rate of rent you have now been paying, I think you probably did accept the AST. There was an offer (the new AST), consideration, and acceptance - hence a contract. The fact that it was not signed (or that you didn't like some terms) does not invalidate this (ASTs do not need to be signed) and places you in a far more problematical position.

In contract to my previous advice, if you simply give notice and leave you might win in court, but you might not.

[sarahmichelle]

Thank you Andrew. Its interesting that Shelter didn't agree with this - they were very definite about their position on it and told us to write to the agent saying that "paying an increased amount of rent definitely doesn't constitute a renewed tenancy agreement in law." So this is what we've said in our correspondence to them.

[sarahmichelle]

What did the notice actually say?

It says
[dated 19th october 2015]
"please accept this letter as our 30 days' notice to vacate the above property. our last date of occupation will be Friday 20th November, we have made arrangements with the landlord's estate manager to hand the keys back to him locally. our forwarding address is XXXXXXX"

[sarahmichelle]

Did the agent say when they received your notice?

Yes, they replied to us on the following day, 20th October '15

[AndrewDod]

Its interesting that Shelter didn't agree with this - they were very definite about their position

Shelter recently induced my tenants to defend a totally indefensible claim (any idiot would have told them it was not possible to defend). It cost the tenants dearly -- court costs, a much faster eviction, loss of their deposit, much wasted time and stress, and a detrimental court judgment against their names. Shelter has a political position. They are not always correct on the law, and their advice is not always helpful (or ethical).

I did not say you would lose, I said that (in contrast to my previous position which was that you definitely would win) that you might well lose. I think you will.

Put yourself in the opposite position. If the landlord decided to evict you while you thought you were in a new fixed term AST and were paying the rent applicable to that AST. I think in the context a court probably will take it as acceptance.

[jpkeates]

I (respectfully) don't agree that there is a new AST in place - although the rent payment weakens the case a little.

There is clear evidence that the tenant(s), or at least one of them has begun the process of reviewing it and stopped short of signing - the evidence is supplied by the agents themselves.
The queries sent to the agent are further (and good) evidence that the contract isn't agreed.
The existence of the written contract is further evidence that the agent doesn't consider a verbal agreement to be in place or sufficient.

The notice is unambiguous and is consistent with the tenant having not agreed a new contract.

Now the tenant has moved out, I'd (obviously) pay no further rent, ask for the deposit back and (assuming the agent won't return it), ask for ADR (and if its refused) sue the landlord for the return of the deposit via money claim online.
The landlord may counter claim, but I'd expect a court to favour the tenant's view unless the agent can come up with an actual agreement,

[jjlandlord]

It would have been so easy to just reply in writing that you didn't want to renew instead of taking them for a ride...

[AndrewDod]

I (respectfully) don't agree that there is a new AST in place - although the rent payment weakens the case a little.
....

But the notice is after the new period had started and after the higher rate of rent had already been paid. So yes it is clear evidence that the tenant at that point did not want a new contract. But the notice is not at all (I think) relevant one way or the other as to whether there was a contract.

Whether there is a contract can only be decided in court and will depend on the exact context and wording of all of the correspondence, and the timing of the various queries and so on. Had there been no higher rent paid I would have thought it would be an easy win for the OP - but with the higher payment they are taking a risk in driving this into court. That risk may not be large - I really don't know and I don't think anyone else here can.

The OP herself says "the agent uses an electronic system and sends contracts for review and signature by email" -- the OP is therefore accepting that this agent might not operate via paper contracts, and the correspondence presumably reflects that (I personally would not use an agent that operates in this manner -- but that is a different problem). The agent will have complete control over what they say the tenant did or did not enter onto their own online system --and so their greatest proof remains the payment of rent. The tenant can no more prove that they failed to complete the online AST than the agent can claim they did unless there is some sort of PGP type signature confirmation system.

[jpkeates]

I think I agree with that.

[sarahmichelle]

AndrewDod,

what is a PGP signature confirmation system please?

What we've been told by others is that there are indeed risks on both sides and we appreciate that. its a concern to hear that Shelter have been giving out bad advice.

Quick note to the person who said we'd taken the agent/landlord for a ride - I don't think thats the case. we didn't touch the first agreement at all, but when an agent starts hassling you in writing and for money you feel that you're in a vulnerable position and that you've got to do something. obviously we didn't want them to just serve notice, because we needed somewhere to live, but we didn't want to sign up to an agreement that they'd snuck thousands of pounds worth of fees into without telling us, and quite a few of the details within it were wrong anyway. We just felt uneasy about the whole thing. We're not malicious professionals, we're just normal folk!

we used the electronic system originally in 2014 so as far as we were concerned, we knew what was required to complete the process and to generate the contract. for the 2015 renewal we were sent 3 separate contracts over 2 months and we didn't complete the online process for any of them. We knew how the system worked from when we used it before, so assumed that 'not completing the online process = no contract generated'.

the agent are obviously trying to tell us we've assumed wrong, in fact they're telling us that its signed[!] but thats just not right.

in one sense yes we agreed to pay the landlord more rent, but the agent set the precedent for the process of renewing the contract. surely we can't be penalised for using the process they gave us to follow? I expect we just wait to see if they pursue and then deal with in court if required.

[jpkeates]

You might also find out which redress scheme the agent belongs to.
They will have a code of conduct.
Spend some time comparing the agent's behaviour with the code of conduct.

Make a formal written complaint to the agent about their claims that you have signed a new AST when you patently haven't and then failing to provide a copy of it.
Add anything else you can think of and see how they respond.

[sarahmichelle]

thanks. the agent are a member of ARLA - we followed their internal complaints process to no avail. We asked for the details of the redress scheme but they told us to go to the ombudsman and didn't acknowledge ARLA. there are several things they haven't done in relation to the ARLA code of conduct - main ones being: putting in new fee clauses and not telling us, not confirming what was happening with our deposit at the renewal/statutory point, ignore the queries we sent them about the agreement

[jjlandlord]

You might also find out which redress scheme the agent belongs to.
They will have a code of conduct.
Spend some time comparing the agent's behaviour with the code of conduct.

Make a formal written complaint to the agent about their claims that you have signed a new AST when you patently haven't and then failing to provide a copy of it.
Add anything else you can think of and see how they respond.

Are you being serious?

[AndrewDod]

I think the problem you face if this comes to court is that it will be very unbalanced -- you will be claiming your deposit, and they will counterclaim for a year of rent, utilities, council tax, and higher insurance (perhaps with some mitigation). Even if the odds are in favour of the judge agreeing that there is no new agreement (depends on the actual correspondence) - you do the math. It would be good to know if they have let the property to someone else since you left, since this would dramatically alter the odds.

[sarahmichelle]

it isnt let yet but they readvertised the house a month ago. if a court said the agreement wasnt valid surely we wouldnt be held responsible to pay any of those things, because we gave the right notice?