Breach of Duty of Care? – Help please

by Readers Question

3 weeks ago

Breach of Duty of Care? – Help please

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Breach of Duty of Care? – Help please

Through a certain online agency I had a tenant on a “fixed term” 12 month tenancy with a “no break” clause, there was also a guarantor in place.  Within a few months the tenant made several requests to leave, each month with a different reason, non appertained to the property’s condition, suitability or safety, but more of “personal issues”.

I tried to be sympathetic but as a retiree living Overseas I required the security and continuity of the fixed term rental income of my home.  So I had to decline the tenants requests.

In short the tenant bombarded myself and my lettings agent with emails,  unbeknown to myself they managed to negotiate an early release.   The first I was made aware was when the tenant Ccd myself in on their one months notice to Purplebricks staff.

I immediately replied once again with specific instruction and refusal.  But this went ahead.

My property was not only left damaged, with items removed, but it has been empty for three months.

When my solicitors tried to recover the costs of lost rental and damages, the tenant and guarantor cited an email agreement from my letting agent giving permission.

I have been through Purplebricks internal complaints procedure and I was not happy with their findings, nor their offer of two months rent to me. I turned this down, requesting more than they offered.  But they reimbursed me anyway, but worded as a “refund”.

We made no agreement or acceptance from myself nor was it mentioned as a full and final settlement.

Any advice please?

Thank you kindly,

Munro



Comments

Ian Narbeth

3 weeks ago

Dear Munro
On the face of it you should have a clear case against the agent, subject only to a possible duty to mitigate your loss by re-letting the property, which it appears has now happened.
You refer to "an email agreement from my letting agent giving permission" . Permission to do what? To remove items? Surely not to cause damage to the property? If the agents have authorised either of those things you will have a claim against them as well.

The fact that the agent has paid two months' rent to you looks like an admission of liability. Has your solicitor not advised you on this? I would have thought that a formal letter before action from your solicitors and the issue of proceedings is the next step.

Annie Landlord

3 weeks ago

When I had a problem with a national high street letting agents (charged me and the tenant for compiling an inventory but actually they never did an inventory!), I was advised to go through the agent's complaints procedure to its conclusion and then take the case to The Property Ombudsman. The PO ruled in my favour and I received compensation. So ask for Purple Bricks complaints procedure, comply with it and then go to the PO

Luke P

3 weeks ago

Reply to the comment left by Ian Narbeth at 27/04/2018 - 10:43
I thought Reichman & Dunn v Beveridge & Gauntlett [2006] ruled there is no requirement to mitigate loss for LLs?

Ian Narbeth

3 weeks ago

Reply to the comment left by Luke P at 27/04/2018 - 13:31
Hi Luke
Reichman & Dunn v Beveridge & Gauntlett relates to a landlord not having a duty to mitigate his loss. He can simply claim for all the rent as it falls due under the tenancy. That is not the case here. We can safely assume the agents had ostensible or implied authority to act on behalf of the landlord. Therefore the surrender was effective as between landlord and tenant. Munro's claim is against the agents for breach of their contract with him. I haven't had time to research the point which is why I referred to "possible duty to mitigate". My instinct is that there is a duty. It appears that Munro has re-let the property so the point is probably moot.

Munro

3 weeks ago

Hello and thanks everyone for your response and advice, much appreciated. Especially Ian's. A few points to clarify please Ian, if I/we could.

Yeah, re let now thanks, but not with PBs, never again!?!? This was with the highly efficient, very swift and great value "Lettings Supermarket" thanks to 118. RECOMMENDED.

So liability of the guarantor? I am sure the damages and loss or theft of my property will not be precluded by the "agreement" wrongfully made by PBs and the tenant. I am certain that I will pursue for these costs and can be recovered. But I would like your thoughts on pursuing Purplebricks for their failures, and what do you make of their payment of 2 months rent as a "refund', but not the usual ''Without Prejudice" tag?
Any protracted case might well be too costly for myself, as I ve no insurace for such.....Whoops!

Also Ian in what context would "moot" be used here, please ?

Finally, Annie you might not have read all my post, I ve been through the agent's complaints procedure. But thanks for your advice anyhow 😉

Thanks to all.

LordOf TheManor

3 weeks ago

Seems to me you are in a similar position to this case:

http://www.landlordlawblog.co.uk/2016/02/15/claims-against-letting-agents-who-let-to-unsuitable-tenants/

You gave the brief to the agent. If they didn't follow it or went on to make decisions without consulting you and you suffered quantifiable losses as a result, follow this up quoting Consumer Rights Act 2015 (the successor to the Sale of Goods & Services Act referred to in the above Court case). Good luck!

Munro

3 weeks ago

Thank you kindly for the link "Lord".

This also opens another can of worms, as my countless request to the Letting Agent, PBs to provide copies of their correspondences with my tenant, (all without my knowledge) were all refused.
As were my requests for Purplebricks to contact the guarantor on my behalf to inform him of the situation and his responsibility.

Thank you

Graham Bowcock

3 weeks ago

Dear Munro

Your agent has a clear duty to act on your instructions. Failure to do so renders them liable for your losses. However, as pointed out by others the costs, of pursuing them may be prohibitive; in any event it looks like you have moved on and changed agents.

It sounds like the agents just weren't up to the job. I think that a decent agent may have tried to build a bridge between landlord and tenant. In my experience trying to keep a tenant who is determined to leave is not always a pleasant experience. However, handled well there is usually a deal to be done that a professional agent will broker. For example remarketing the property to let at the tenant's expense, so that the landlord does not bear any costs.

The life of a landlord is not always easy (or free from costs/losses) but a bit of communication goes a long way. It looks like Purple Bricks were not prepared to engage properly with the parties. I am not familiar with their letting service, but I do wonder if they have time served and experienced staff, maybe not.

Graham

Ian Narbeth

3 weeks ago

The point that is moot (i.e. does not need to be debated) is whether you needed to mitigate your loss. Apologies for the lawyer speak😀
I suggest you produce a schedule of your losses and an explanation of why they are PB’s fault. Write to them saying that their payment to you is a clear admission of liability and that you are claiming for the scheduled items, giving credit for the payment received. Tell them you will issue a claim if payment is not made within 14 days.

Munro

3 weeks ago

Thanks to both Graham and yourself once more Ian, very grateful.
As you suggested Graham, I did try the route to a satisfactory resolve for all, by instructing PBs to re list the property to rent and discuss with the tenant that if they covered the re-letting fees and facilitate a seemless transit, it would be old tenant out/new tenant in. No losses or great cost to anyone. This was 2 months prior, by email, all which I ve obviously kept.
However PBs did not present this offer to my tenant in it's entirety, only that part where they must meet the costs of PBs "finders fee" at £425. Which the tenant agreed to have deducted from their deposit, but on vacating the property disputed this with DPS. So I ve not even been paid this
:-((

Be interested in your comments on this, the agent's refusal to help with the situation which they had brought about and the fact PBs paid me 2 months lost a rent, WITHOUT any agreement or conditions to it's payment.
I suppose it's all down to outright poor service, poor communication and unprofessional staff. Or maybe I'm a cynic?

Thank you kindly Gents.


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