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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69379
Experience:  Over 5 years in practice
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I have an agent that Fully manages my properties. They send

Customer Question

I have an agent that Fully manages my properties. They send me reminder emails and I then arrange to have the CP12 carried out. My agent for one of my properties has not carried out this work for over 3 years and have not advised me that the Certificate was due. Do i have any course of action i can take against them such as seeking to have some of the Management Fees refunded since they have not effectively managed the property putting the Tenant and me at risk?
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.

Hi

If they fully manage the properties then they should have been organising this and there is an argument that failing to do so amounts to negligence.

There will be a term implied in your contract that they perform their work with reasonable care and skill and you can argue that it was breached.

However, you can only claim the sum of your loss. You cannot claim compensation for placing you at risk unless, of course, there was an incident and you suffered loss.

They may well offer you a refund of some form in the interests of good business but if you went to court unless you could show loss your claim would fail I'm afraid.

Sorry thats probably not the answer you wanted but it is the position that you have and I have a duty to give you truthful and accurate information even though its not what I want to say.

Hope this helps. Please rate my answer OK SERVICE or above and I can answer your related questions.
Jo C., Barrister
Category: Law
Satisfied Customers: 69379
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 3 years ago.

is this USA law or English

Expert:  Jo C. replied 3 years ago.
I'm in the UK.

I know nothing about the law in the States.
Customer: replied 3 years ago.
For jomo1972

Ok. Just find it hard to understand that when an agent takes £.60 per month to manage a property I cannot seek some financial redress for their Neglect. Having a CP12 done every 12 months is a legal requirement and they have not fulfilled this basic task for 3 years showing a lack of Duty of Care.

Are you sure The Onbudsman and the courts would not take a dim view of their conduct.
Expert:  Jo C. replied 3 years ago.
They would take a dim view of their conduct.

But they can only order compensation for your loss and there is none thankfully.
Customer: replied 3 years ago.
Forjomo 1972

Sorry. I am not seeking compensation for loss but for negligence in Managing the property. Potentially putting the tenant at risk. Would I not be entitled to try to obtain a return of some of the Management fee due to this basic neglect.
Expert:  Jo C. replied 3 years ago.
No, as I've said, there is no loss.

You can only claim for your losses.

Even under the law of negligence you have to show specific loss. Your claim is much better in contract anyway.
Customer: replied 3 years ago.
Forjomo1972

Sorry don't understand. Claim is better in contract?
Expert:  Jo C. replied 3 years ago.
Well, as I've said really.

You have to show loss to claim compensation in either negligence or contact. Generally thats easier in contract as you can claim for pure economic loss.

But here there is none under any head. Its just an issue of risk which is not something for which you can recover.
Customer: replied 3 years ago.
I am advised that I have a case under the sale of goods and services act 1982 in that through the agents neglect they failed to carry out this statutory requirement. They also invalidated my insurance by not carrying this out.
Expert:  Jo C. replied 3 years ago.
You do have a case as I said above.

The issue is what loss can be claimed and I think I've covered that.
Customer: replied 3 years ago.
The loss is the Management fee I have been paying to the agent namely £60 per month over a 3 year period and they have not managed it by carrying out a Gas Certificate.

Could you please give me a clear and unequivocal thought on the merits if persuing this. I feel your advice up till now has been rather vague. I want to know if I have a case for neglect under the Goods and services act etc. would you recommend persuing it or should I just forget it.

Surely this agent should be exposed what us the best way to do it. Lets gave a clear answer please.
Expert:  Jo C. replied 3 years ago.
I really don't think I can add anything to what I have said above.

He has placed you at risk. That is bad service.

He has not caused you loss. That is what you need to pursue a claim under statute, contract or negligence.

My answers are very clear I'm afraid. I really cannot think of any way to make them clearer.

As I've said many times, you need to show loss and you cannot.

I realise you have paid a management fee but he has been managing the property.
Customer: replied 3 years ago.
So are you saying do not persue this as I can't show any loss. Yes or no. He has not been managing the property with respect when he has not carried out a fundamental and basic requirement.

I would like an answer which advises me if I should persue this. A yes or no will suffice.
Expert:  Jo C. replied 3 years ago.
Well, as I've said several times, unless you can show loss you have no claim.

Obviously I won't be able to say whether you can show loss. I haven't had full vision of this case.

If your contract involves paying a specific fee for him to arrange the gas check, for instance, then you could claim that back because he hasn't done it.

If there was an incident arising from his failure which causes you loss then you have a claim for that sum.

If you want somebody to give you a clear categorical yes or no then you would need to see a high street solicitor and place him in a position where he has full vision of the case. Probably even then he couldn't give you any guarantees.

But I'm really only saying stuff that I mentioned earlier.
Expert:  Jo C. replied 3 years ago.

The only possibility you do have is to argue that you should be entitled to a proportion of the fees because you paid for this and it wasn't done.

However, I really wouldn't suggest that. I think we both know that 'managing' a property involves a good deal more than the gas safety check. The sums due to you for the gas safety check would be so very low that you might be at risk of the court saying its a vexatious claim.

Come what may though, you cannot claim for placing you and the tenant at risk per se which was what you asked about.
Customer: replied 3 years ago.
I have been asking all along about a return of a portion of the Managenent Fee. The fact they have not kept effective records and done this CP12 is a clear indication of that. I have asked in 8 occasions for a copy of the last check. They have refused to supply it. This indicates to me it is woefully out if date. The management contract specifically mentions the Gas Certificate and the legal requirement of it. As it is fully managed this is the agents responsibility. I am seeking a return of 50% of the management fee over the period if time the Cp12 was out if date. Under the Goids and services act they have not provided a full service.

I think you have enough info to give me a definitive yes iota no to a claim without involving any other solicitor.
Expert:  Jo C. replied 3 years ago.

Sorry, I won't be able to do that for the reasons I've explained.

 

I have given you the answer above.

Customer: replied 3 years ago.
Relist: Answer quality.
I want a definitive answer as to if I have a case. Lots of waffle previously but no definitive yes or no
Expert:  Jo C. replied 3 years ago.
Sorry but I will not be able to continue with this because you have left a bad service rating.

Opting out.
Expert:  Ben Jones replied 3 years ago.
Hello, my name is Ben and I am a solicitor on this site. I must advise you that it is against the rules of this site to give prospects of success to customers as this is something reserved to situations where there is a formal retainer in place and the client-solicitor relationship is properly governed and subject to insurance, etc. As this is not the case here we can only advise of the law that applies but cannot tell you if you have a case or not.

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