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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11149
Experience:  30 years as a practising solicitor.
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We are having issues with our landlord (fully furnished

Customer Question

We are having issues with our landlord (fully furnished property rental in Scotland). The letting agency is now refusing to deal with him and is no longer acting as his agent. Is our tenancy contract still valid? It runs to the end of November 2016 but we would like to stay in the flat beyond this date.
To make matters worse, the landlord lives in the USA and has lost his job. Therefore he has stopped paying maintenance payments to his ex-wife (living in Scotland). My wife and I have been issued with arrestment to pay the monthly rent to the ex-wife and not to the landlord. Is there any way to keep making payments to the landlord i.e. through a new tenancy contract?
We are worried that if we stay in the flat we will not be able to get any repairs or maintenance carried out (gas safe certificates etc).
Submitted: 11 months ago.
Category: Scots Law
Expert:  JGM replied 11 months ago.

Your lease is still valid even if the agency is no longer acting for him. I suggest you deal with him directly or his solicitors the identity of which you can probably get from the ex wife's solicitors. Depending on the terms of lease will depend on when you would have to leave. You are safe until the end of November. If the lease is silent about renewal and you don't get notice to quit the lease will run for the same period again automatically. In Scots law that is called tacit relocation. If the lease provides otherwise, for example for a month to month renewal then that will be the case, again until a notice to quit is served. Two months notice is typically needed. As regards ***** ***** rent, if there is an arrestment you cannot pay to the landlord whether it is the current lease or a new one. An arrestment arises from a duty to account to a party where a third party intervens so as to divert the funds in settlement of a debt. You would have to retain the funds arrested until the creditor directs payment in terms of the legislation. The arrestment schedule and accompanying paperwork will explain that procedure to you but you can no longer pay the landlord. A practical consequence of the landlord having a residence in the US and the withdrawal of his agent is that you may have difficulty in asserting your contractual rights to repairs, gas safety etc. Although you have a lease granting you those rights and he has an obligation to provide them, the issue is that you will have to consider whether you want to remain there, as it is likely that the lease will be unenforceable in practical terms. I hope that helps. Please leave a positive rating so that I am credited for my time.

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Customer: replied 11 months ago.
HiCustomer thanks for the response. This is useful information, especially regarding enforcing our rights under the tenancy agreement. I guess we can manage any repairs, gas safety etc ourselves and take any corresponding expenses from the rent payment before it is passed on to his ex-wife? I'm also concerned how we will get our deposit back from the landlord!One idea I had was to sign a new tenancy agreement direct with the landlord for December onwards (no agent involved). This would be for a very low rent, say £100, which I would pay to his ex-wife as per the arrestment. The remainder of the rent would be paid direct to the landlord from my US based $ account to the landlords US account (untraceable?). Obviously the tenancy contract is just for 'show' to work around the arrestment but this could be a way that we can stay in the flat beyond the current tenancy agreement. We really don't want to move, despite what is going on!
Expert:  JGM replied 11 months ago.

1. You can do repairs and deduct the cost from the rent. This should be agreed with the landlord if at all possible. 2. Your deposit should be in a tenancy deposit scheme so there should be no issue in getting this back at the end of your tenure. 3. The lease with a fake rental is not something that the ex wife's solicitor would fail to notice. This is a very risky strategy and unwise. It could hold you personally liable for the true sums due under the arrestment and you could end up paying the landlord once and his ex wife again. Not recommended.

Customer: replied 11 months ago.
Thanks for theCustomer I'll stay away from that idea!Anyway, if I understand correctly, as the rent is paid on a monthly basis an arrestment would need to be issued every month. If I have already paid the rent for that month to the landlord then the arrestment cannot be enforced.As I've now cancelled the standing order to the letting agency I will be making a manual bank transfer every month for the rent payment. As this will be done on random days, there is a high probability that I will have transferred the rent to the landlord before further arrestments are made.Am I correct in my understanding?Thanks,
Paul
Expert:  JGM replied 11 months ago.

Yes, that is correct, it is the duty to account at the date of the arrestment that quantifies the amount caught by the arrestment. If payment has already been made then the arrestment fails to catch anything.