Getting rid of agent

[mazco]

My sister lives in South Africa and lets her property in the Uk through an agent. We have rental property that we manage ourselves but decided not to manage hers as it is about 200 miles away from us.

From the beginning the agents have been a nightmare. They are supposed to "Fully manage" but have never done that. There have been countless "mistakes" that seem to border on dishonesty. This week my sister is back in England so we went with her to view the flat. The tenants were a lovely couple who want to remain in the flat with their young son. We discovered while talking to them that the agent has been treating them quite badly too. Initially they asked for a 1 year tenancy agreement (which is what my sister has always said she'd prefer). This was agreed but when they went to sign they were told they could only have 6 months. My sister was never consulted about this. At the end of the 6 month tenancy they had been told they had to attend the agent's office to sign what they thought was a further 6 month contract. It turns out that what they had signed was a Statutory Periodic tenancy. This cost them £80 and my sister also had to pay £80 for it. I know that there is no need to sign anything to go onto a SPT. We were told by the agent that they HAD to do this or the tenant could just move out without giving notice!

This was the final straw in her relationship with the agent. We have always been concerned at the way they work. They take 10% in fees from the monthly rental and take this every 6 months up front. This is bad enough when it is a 6 month tenancy but they have done this with the statutory tenancy. In effect the agent can take 6 months fees on the day the tenant gives 1 months notice. The landlord cannot get a refund of these fees if the property is then empty for the next 5 months. If a tenant moved in a few days later they then charge a further 10% on the fees for the overlapping period. When we checked back they had done this last year. The existing tenant moved out after 5 months of a SPT so the agent had already taken fees for 6 months. They then took a further 6 months fees when the new tenant moved in a few days later. They therefore had one month's fees twice.

We checked her agreement and it appeared that she could give them 3 months notice that must not expire during a fixed term. She did that in writing yesterday but was told that they will now give her tenants notice and "find them another one of their properties".

This seems unbelievable. Can they give notice to tenants in a property that doesn't belong to them when the landlord and tenant both agree that they don't want this to happen? They claimed that they could because a clause in the agreement my sister signed says that they can "do, carry out and execute the following on the landlord's behalf (but at the sole discretion of Agent ********). Surely this doesn't mean they can do what they like, when they like, whether the landlord agrees or not. I would take this to mean that if the landlord asks them to do something that isn't right or legal they can use their discretion and refuse to do it. They are saying that because of this clause they can give the tenant notice while they are still in their 3 months notice period. I can't see how this will work as the tenant's rent day is 8th of the month. They would need to give 2 months notice to end on Oct 7th. The notice period for the agent expires on Oct 17th so if the tenants (and my sister) refused to act on the notice how could the agent enforce it?

It seems to me that many of the terms in their agreement are unfair but I'd be grateful to hear what other people think about this.

[Grampa]

Get your sister to write to the tenant telling them to not take notice of any s21/notice to quit etc that comes from the agent and she is happy for them to stay in the property and sign a new contract after the notice period with the agent has expired.

I guess a new contract could be signed now that is posted dated to the required date.

[mazco]

That is exactly what we have done so far. As we really couldn't see any way the agent can enforce a notice to quit without the agreement of the landlord we went round and spoke to the couple and told them exactly that. They are thrilled that we are offering them a new 1 year agreement and very happy to be able to deal direct with us rather than constantly hassling the agent to get minor things fixed. I've prepared an agreement and will send it to them next week so that it is signed and ready for August. Would it also be a good idea for them to give notice on their Periodic Tenancy? That way we can present it to the agent saying "The tenant has given notice and you have no more claim on any money"

We've also got them to cancel their standing order to the agent for their rent and pay it direct to my sister's account. They would have got the next month's rent in August and immediately taken all of it to pay their fees for the next 6 months. She would then have to fight to get the money back. We've worked out what she owes them for the next 3 months and I think she'll pay them that by cheque after she gets this lot of rent.

We've already taken these actions so its good to know that others think we've done the right thing. I'm going to talk to the agent who finds our tenants tomorrow. I'm going to get him to look at her agency agreement just to see what he thinks. We just need to get some reassurance that we're on the right track.

Thanks Granpa

[Grampa]

As a general rule any new tenancy agreement signed will invalidate the previous one so no need for the tenants to give notice on the present one.

[mazco]

Latest developments - My sister should have got a phone call today from the Compliance Director of the agency to discuss the legal aspects of all this. Surprise surprise - no phone call!!

However, the agents have managed to email a Section 21 Notice to the tenants, together with a letter telling them they have to move out on October 7th. The whole thing is filled in saying that the Landlord has instructed them to seek possession. Can they really do this? Surely it is illegal for them to misrepresent the landlord like this. She has expressly said that she does NOT want them to do this. The whole form is done in her name.

[Grampa]

If they are members of ARLA, Nals or the ombudsman you can put in a complaint. Also report them to trading standards.

To put the tenants mind at rest you could put in writing that any s21 sent by the xxxx agency is not done on your instruction and will not be acted upon.

[mikee_h]

This is standard practice for most letting agents, in theory if an agent finds you a tenant on a managed basis they are obliged to receive commission so long as that tenant lives in your property. I think this covered in the law of agency. In most cases you can 'buy off' the agent, it may cost you a 4-6 weeks rent but that might be better in the long run.

There are some issues you will have deal with:

a) if the agency has given your tenants notice, they will be carrying out a check out appointment where they will check that it has been vacated.

if you have the standing order changed now the agent will be chasing the tenant for unpaid rent in the near future.

c) what will happen to the tenants deposit? - If it is registered via the agent to a DPS, the agent is the only person who can release it. I cant imagine they are going to be particularly helpful if you follow your course of action.

An agent can give notice in this instance even if you do not consent, this is probably covered in the contract you have with them.

You may find if you take this action you could open yourself up to possible legal issues. I would try and negotiate with the agent and use their poor service.

One last point, always read the agents contract before you sign it and don't sign with an agent that charges you for renewals.