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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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As a landlady, and I have used a letting agency to find me

Customer Question

As a landlady, and I have used a letting agency to find me a tenant which they did. They were supposed to check his references before allowing him to sign a 12-month AST contract and move in, which they did not. They have not done that and now, 3 months later, the tenant has disappeared without paying the rent and leaving me with all his unpaid bills. What is worse, that tenant's real identity is in my opinion in question, but in any case, he is untraceable. I am starting the process of suing the Agency to refund me their tenant-finding fee for the remaining of the contract and the expenses. My question to you is: can I sue this agency for the remaining amount of the 12month AST tenancy agreement, (signed January 2015), instead of suing the tenant (for the remaining of the contract), because due to their negligence, I have no way to trace the disappeared person who lived in my property. Regards ***** ***** email *****@******.***

Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. For the avoidance of any doubt are you satisifed from a review of the agencies terms and conditions that part of their finding service included checking references and providing you with a credit report on the prospective tenant please? Such a retainer usually would but I ask for the avoidance of doubt?Were you asked to confirm the tenant or did you give the agency full authority to make a decision without reference to you and sign the tenancy on your behalf subject to their being satisfied with references?
Customer: replied 1 year ago.

1. the agencies T&C specify they do the references checks for all prospective tenants;

2. i was not asked to confirm the tenant nor offered to see his references prior to signing the contract and him getting the keys. i have not meet or seen this person at any stage of the process.

Customer: replied 1 year ago.

further to my previous answer to these two questions, additional answer to (2)

- the agency signed the contract on my behalf, so i was not even present on the signing of the tenancy contract with the tenant.

Expert:  Joshua replied 1 year ago.
Thank you. One final query on the above. You say you were not asked to confirm or accept the tenant. Had you given the agent specific authority to let the property without your authorisation or did they just assume this authority without your express consent or permission?
Customer: replied 1 year ago.

they asked me by phone can they sign the contract on my behalf to which i said yes. Later on, on reading their T&C, i saw that that is their usual practice.

as for specific authority to let the property with or without my authorization, i do not know the specific answer to that: They said they found this tenant, he is willing to sign the contract immediately and (in effect) they informed me prior to it happening. does that mean they asked my permission or were they just informing me, - i do not know, from legal point of veiw, at least!

Customer: replied 1 year ago.

i am receiving your replies twice- i assume you got my reply first time.

please ignore this if you already received my response to your second question.

Expert:  Joshua replied 1 year ago.
Thank you. Signing the contract on your behalf is no issue providing they do so with your authority. From what you say they did contact you prior to granting the tenancy and you agreed for them to do so if I understand what you say above correctly so this would be satisfactory to discharge their obligations to you as their principal. an agent owes its principal (you) in law a duty of care and a duty of obedience which essentially means in non legal jargon, tthat they should act with appropriate skill and care in your best interests and should not act in significant matters without your express authority - e.g. binding binding you to legal liabilities. without consent. Based on what you say they appear to have satisified the latter in asking your permission but there is at best a question mark over whether they acted with sufficient duty of care. If the agent either expressly or by implication recommended the tenant to you by seeking your permission to sign the contract on your behalf, and failed to carry out reference checks and appropriate identity due diligence as required by the retainer, it follows that they are in breach of their duty of care to you and therefore have acted negligently. Accordingly, you can consider claiming damages from them for both breach of contract in respect of their failure to obtain references in line with the terms and also in "tort" for negligence. accordingly, based on what you say, I consider that you have a claim for the lost rent on the basis that has referencing checks being carried out revealing that the tenant was either unable to afford the rent or had a poor credit history, you would not have accepted the tenant and it is therefore reasonable to conclude you would not have suffered the loss. In addition, you would have a claim for at least some of their fee charged to you on the basis of breach of contract as they have failed to perform all of the services they undertook to provide in their contract. As to whether you can claim for the remainder of the tenancy agreement, in law you have a duty to mitigate your loss. What this means is you cannot claim more than your actual reasonable loss and in particular cannot make a "profit" from the agents negligence. you would be able to claim up to the point you can reclaim possession of the property as well as a reasonable period to allow you to remarket the property to another tenant. You would not be able to claim for rent beyond that point because a court would consider that it is reasonable for you to have relet the property by that point. In terms of how you may decide to proceed, if the tenant has simply disappeared, you need to be careful with simply taking back possession of the property if you have no evidence that the tenant has intended to give up his tenancy - e.g. returned the keys or confirmed he does not intend to return. It is very dangerous for a landlord to assume a tenant has given up his tenancy by his vacating the property alone. if he has return the keys, there is little difficulty with this but if you do not have any specific evidence of his intention to surrender his tenancy, he will need to consider applying for a possession order through the courts before you retake possession all you are at risk of the tenant returning and claiming that you have unlawfully evicted him. This may sound fantastic but it regularly happens. in fact, some tenants deliberately vacate only to later return in order to sue the landlord for compensation. Courts can award high hundreds or low thousands for unlawful evictions. otherwise, in terms of how you may decide to proceed, you could of course simply issue proceedings in the County Court for recovery against the agent however you may decide in the first instance to refer your complaint to the Ombudsman service which the letting agent is legally obliged to be a member of. If the agent has not joined the property ombudsman service (there are three) this is a criminal offence and they will be liable to prosecution. You can refer your complaint to the property ombudsman which has the power to make an independent decision which will be binding upon the agent, though not on you. if you are not satisfied with the ombudsman's decision, you have the right to issue proceedings. therefore, the ombudsman service can be a no risk free way to initially proceed if you prefer this to court initiall. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Expert:  Joshua replied 1 year ago.
I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Customer: replied 1 year ago.

hello did you receive my last question please?

Expert:  Joshua replied 1 year ago.
I'm really sorry it has not come through. Could I trouble you to repost it? I hope that is not cause too much inconvenience
Expert:  Joshua replied 1 year ago.
I'm really sorry it has not come through. Could I trouble you to repost it? I hope that is not cause too much inconvenience
Customer: replied 1 year ago.

they (the agency are not part of any of the ombudsmen schemes and are operating illegally, despite the logo being displayed on their website

keys- the tenant has posted the keys back to the agency and collected all his personal belongings from the flat prior to that, so i am now in legal possession of the flat and i see no problems in this area from the tenant (for now at least!).

given that the Agency is operating illegally, how is that going to get me my money back , apart from reporting the issue to the relevant ombudsman who will/would/could/chase them/ and close down etc.

in the Companies House, there already are few similarly named agencies like this one with similar/same addresses, so i assume once they were legally closed down, they just reopened under a similar name and continued trading. i therefore believe they would be willing to settle the dispute without going to court and hiring a solicitor to argue their rights. would you advise in this case going to Small Claims Court directly, rather than to ombudsman first? - given that they are not 'in normally strong position' to start ,or i am wrong in believing that i can get any money out of them in any form/shape?

Regards

Dragana

Expert:  Joshua replied 1 year ago.
Thanks I have received the above this time. Apologies for any error. I would be delighted to continue to assist you with this follow up question. I should be very grateful if you would kindly click to rate my service to you to date in respect of my answer to your original question. I will be very please to deal with your follow up queries without further charge.
Expert:  Joshua replied 1 year ago.
Would you like to continue. I hope the above is helpful? I should be most grateful if you would very kindly click to rate my service to you so far. I would be very please to deal with your above follow up questions and anything further you may need to ask on the above.

I look forward to hearing from you.

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