I believe that if we could press for changes in the Codes of Professional Conduct for Letting Agents that we would see a major improvement. It seems that Agents have no Duty of Care to tenants whatsoever and although they claim they can't start doing credit checks etc on their clients I bet that principle would soon go out the window if they thought they might have financial comeback.

I went to a local “reputable agent” to rent an upmarket property. Rent 800 a month. I paid 12 months in advance (I know, I know, you don't have to tell me how stupid I was) believing the Agent would keep it in a client account and pay it over monthly to LL and that they had checked her out. I did not get a draft/specimen copy of Tenancy Agreement before sign up which took about 10 minutes with an Office Junior on the day I moved in. The LL hadn't signed the agreement and Agents didn't have authority to sign on her behalf so I left office with just the keys.

Within a few days I had a mortgage debt counsellor round as LL is in 3 months arrears.. Went straight to agents who said they'd paid over ALL the rent to LL already and they were still chasing her to sign AST agreement! They said it was all a big mistake, LL had recently changed her mortgage product and had now sorted it with her Lender. She did sign eventually and since then I've discovered she hasn't informed her Lender of Tenancy, she has 3 unsatisfied CCJ's registered against her and no local contractors will do maintenance or repairs because they say she doesn't pay her bills. Agents keep saying that they're not liable, it's not incumbent on them to check her out and even though they're also Managing Agents, if I'm unhappy I have to take action against her.

After living in a total state of insecurity since 1st August 2008, loads of post coming for LL with return address on envelope of Abbey's Collection and Recovery Dept.  I get a notice of possession hearing set for 26th March 2009. Agents keep saying it's being sorted but can't offer any proof. I'm very concerned that myself and my child will end up homeless at short notice and commit myself to another property from 17th April on the assumption that a 28 day repo order will be granted on 26th March. I write to agents and LL asking for refund of rent. Agents keep saying they're not liable.

2 days before hearing the agents send me proof that the hearing has been adjourned to give LL time to come to an arrangement with Lender. I say, it's too late. I've been a responsible parent and already secured alternative accommodation for me and my son. They say tough, you've got the property so you have to pay for it till end of tenancy (31st July 2009). Basically it's not our fault if you didn't choose to hang around and see if you were going to be evicted.

I've already started legal action against LL for breach of contract and Agent as 2nd defendant for breach of Duty of Care but I don't hold out much hope.

It seems that an Agent can Market a property in their name, charge application fees, undertake credit checks, prepare and offer a contract and process all monies through their accounts without any liability whatsoever that their client can commit to the terms of the Tenancy?? I recently bought concert tickets from a Ticket Agent and even they'd got a clear disclaimer on them. So a ticket agent has to make it clear that they have no liability, but a Letting Agent doesn't have to make it clear that they have no liability if a family might end up on the streets after accepting a payment of rent in excess of ten thousand pounds?

When I asked the Agent why they didn't check if LL had Lender consent he just said they didn't have to and that if every LL were forced to inform their Lender, the amount of rental property on market would drop to nothing! I asked him why this situation wasn't made clear to prospective tenants so they could at least do basic checks temselves with Land Registry and Court records he just laughed and again said they don't have to, so they don't. Of course the Professional Bodies aren't going to recommend this for the same reasons. Who cares about the tenant once the agents have got your money? 

I am so determined to establish some kind of Duty of Care from Agents and will keep the site updated with my progress. Any advice which would assist my legal battle would be appreciated. If I could win this case against the Agents other tenants could follow suit and once enough Agents have suffered financial loss then maybe they'll change their procedures.

I would like to exempt the company Your Move from this opinion. I rented my previous property from them, again paying in advance and they crossed every t in their approach. A young girl in their offices insisted on spending 90 minutes with me well in advance of commencement of tenancy explaining the AST agreement in detail, making clear what could happen in event of repo, assuring me that it was a proper buy-to-let mortgage etc etc. and that they had no liability as agents. A thoroughly professional approach. She even told me that as they were only Letting and not Managing Agents that my advance rent would be paid over in full to LL. At least I had the information which could enable me to make an informed decision. 

Whatever the results of my situation, I'm happy to join your campaign. I'm fortunate enough to have a bit of money behind me to pay for an alternative at the moment but there's been plenty of times when I wouldn't have and I'm sure there's thousands of innocent tenants out there whose backs must be really up against the wall.

Anyway, let me know if you can help or advise.

I totally agree with your suggestions but I don't think Agents will be very keen as they'll lose out on quite a few Landlords. Did you see the comment from the Residential Landlords Association along the lines of 'Landlords wouldn't default on their mortgages if tenants didn't default on their rent'!! So he was hardly sympathetic to tenant victims of repo.  

The clauses you suggest would have certainly made my claim more clear cut, although a solicitor friend believes that being in a position to offer the property for let would be an 'implied term' of the contract. I spoke to someone at Shelter who believed that my LL is in breach of 'quiet enjoyment' clause particularly as she was in 3 months mortgage arrears at commencement of tenancy so this is the route I'm going down. I reckon it won't be a straightforward claim though and will depend on the Judge in small claims court. If it's decided that the house was there for me to peacefully occupy then I can forget it. I just can't see how anyone can reasonably expect someone to live in quiet enjoyment if they're under a constant threat of repo, particularly when they're totally innocent and have no control.

I feel as if I've googled every law known to man and even researched the criminal element of obtaining money by deception but all avenues seem to come to a dead end. Have turned into a complete geek. I'm just hoping that the judge will accept that the Agent has a Duty of Care to me as their customer as well as to the LL as their client. Unfortunately I think better people than me will have tried and failed so although determined I'm not optimistic.

As recommended by Shelter I'm going to try and get some local press coverage. Unfortunately 50% of the local weekly rag is taken up by Estate Agent advertising  so can't see the Editor being too keen on putting their noses out of joint. Would also welcome any suggestions of how to achieve this as well. Rentalrights has managed to get National Press coverage so must have some experience.

Feels better knowing I've got some kindred spirits out there. My solicitor friend says that in cases of liability one of the things to consider is the opinion of the 'Reasonable Bystander'. Well, everyone I've told about my situation has said the same “surely the agents and the LL can't do that. It's not fair”. As you know, They can and They do.

By the way, a useful tip if you're in same boat and are prepared to fork out 40 quid. (Some people can qualify for court fee exemption) As neither Agent nor LL were keeping me up to date regarding repo proceedings I applied to the court to be made “a party to the action”,  as I am the tenant of the property. It was put before a judge and granted. This entitles me to all papers which have been served on LL and notification if it should be brought back to court. You get a truer picture of what's happened and the LL or Agent can't give you any fairy stories. It also allows you to attend the hearing and put your story before the judge who may then delay repo till end of tenancy. This is only likely if Lender consented to Tenancy. I left it a bit late and wished I'd done it the day I got notification of hearing.

Thanks, that'd be great. Not sure if Persional Message comes through site and if it does how I access it or to my personal email address. Either way, I'll look forward to getting it.

Ray said:

The clauses you suggest would have certainly made my claim more clear cut, although a solicitor friend believes that being in a position to offer the property for let would be an 'implied term' of the contract. I spoke to someone at Shelter who believed that my LL is in breach of 'quiet enjoyment' clause particularly as she was in 3 months mortgage arrears at commencement of tenancy so this is the route I'm going down. I reckon it won't be a straightforward claim though and will depend on the Judge in small claims court. If it's decided that the house was there for me to peacefully occupy then I can forget it. I just can't see how anyone can reasonably expect someone to live in quiet enjoyment if they're under a constant threat of repo, particularly when they're totally innocent and have no control.

I feel as if I've googled every law known to man and even researched the criminal element of obtaining money by deception but all avenues seem to come to a dead end. Have turned into a complete geek. I'm just hoping that the judge will accept that the Agent has a Duty of Care to me as their customer as well as to the LL as their client. Unfortunately I think better people than me will have tried and failed so although determined I'm not optimistic.

By the way, a useful tip if you're in same boat and are prepared to fork out 40 quid. (Some people can qualify for court fee exemption) As neither Agent nor LL were keeping me up to date regarding repo proceedings I applied to the court to be made “a party to the action”,  as I am the tenant of the property. It was put before a judge and granted. This entitles me to all papers which have been served on LL and notification if it should be brought back to court. You get a truer picture of what's happened and the LL or Agent can't give you any fairy stories. It also allows you to attend the hearing and put your story before the judge who may then delay repo till end of tenancy. This is only likely if Lender consented to Tenancy. I left it a bit late and wished I'd done it the day I got notification of hearing.

Good luck with the duty of care, but, to be honest, I don't think it is going to work (and would certainly be appealed if you won on it).

Of course, if the property is repossessed, then the landlord can't claim that you owe for the remainder of the term, as they are unable to provide their end of the contract, which is where quiet enjoyment usually comes in.

Not sure about how you describe being a party. The judge can't delay the possession till the end of the tenancy in the way you describe. But, if the lender knew about the tenancy and it existed when the mortgage was agreed, then the mortgage company effectively becomes your landlord for the remainder of the term if the court says so. Brief overview at:

http://www.compactlaw.co.uk/fr…..vhf14.html

This also covers the quiet enjoyment point. But as you have given up the tenancy, you may have a problem with that as quiet enjoyment here applies to the unexpired period of the tenancy after the possession.

Still, given that you had someone from the lender turning up on the doorstep due to your landlord's actions and failure to tell the lender about the tenancy, you may have a shot at breach of quiet enjoyment, maybe.

A long shot would be if it wasn't a buy to let mortgage, or without lender's consent to let. Does the tenancy agreement contain a clause to the effect that the LL must have consents to the let from all relevant parties? (Some do). This would arguably include the lender, so technically your LL would be in breach of contract from the start. Frankly, it is not an argument that I'm at all confident would be successful at court (is it a repudiatory breach so you can walk waway from the contract? probably not). But it is a negotiating position. Otherwise, I'm afraid your LL's breach of their agreement with their lender is a separate matter to the tenancy agreement.

Oh and very very good luck for actually retrieving any money - but if your LL owns another property, there's always a charging order and the Land Regisry records don't cost much to get. (I act against private landlords from time to time. I like charging orders, particularly for our costs ).

Of course, none of this counts as legal advice and shouldn't be relied on, etc. I haven't seen enough papers and details of your specific case to give advice and there is no retainer. So don't sue me - I haven't any money and insurance doesn't cover this.

Nearly Legal

http://nearlylegal.co.uk/blog/

Hi,

    I'm in similar position, rented from a very reputable LA last june moved in june 30th 2008 with some hic-cups, My LL lives abroad and the LA only have a PO box, mobile phone number (which he never answers) email for him, anyway within two days of living in property over six debt collectors came to my door, peered through the windows looking for my LL and his wife, then within three weeks a letter to the occupier arrived saying the house was going to court because of rent arrears, I wasn't allowed to have telephone connected because the address had a debt, had to send my tenancy agreement to them as proof of who I was i.e not the LL. Since then there has been two more court orders for reposession, the LL is in so much debt he can't pay for repairs on the property and my LA had to pay for a new boiler as I was left without hot water and heating for nearly three months!!!! LL refused to buy a new one and I had to get Environmental health involved. This has been so stressful, my LA don't want to speak to me about it and now they have handed in their notice for the management side as they say there is nothing they can do for me if LL won't pay for repairs and I have to deal with the LL myself, asked them to move me to another property LA said I would be in breach of contract but if I wrote to them saying I wanted out of the tenancy they would let me out of the contract but wouldn't rehouse me unless I pay all their fees again.

They to refuse to acknowledge that they did anything wrong taking on this LL even though he was obviously in arears with his mortgage when they took his house on to rent. I was credit checked had to give references from a previous job, my new cleaning job,show current bank statements, a reference from previous LL and my guarenteurs employers were contacted and credit checks done on them, yet the LL wasn't even asked to provide a statement from his Mortgage lender to say he was allowed to rent his property, I find this shocking and something should be done about it. If a prospective LL is current with his mortgage then why should the LA struggle to find properties, they should NOT be taking on any LL who are not paying mortgage or had a court judgement against them regarding mortgage arears in that twelve month period.

Joke is I have now recieved a letter from LA asking if I want to renew my tenancy for £85 and if not they will re-let the property to someone else, so they really don't care less that the LL is a liabillity