Can I leave a bad letting agent that has not protected the deposit?

by Readers Question

11:52 AM, 20th March 2017
About 2 years ago

Can I leave a bad letting agent that has not protected the deposit?

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Can I leave a bad letting agent that has not protected the deposit?

I am unfortunately stuck with a horrendous letting agent, but have a great tenant.

The agent regularly pays late even up to 6 weeks after the tenant has paid. They never respond to emails or calls, are always argumentative when they do and most recently I have found that the tenants deposit is not being protected for 2 months now.

Every time I ask to leave they say they will have to evict the tenant or charge me ongoing fees. I have asked for them to let me deal with protecting the deposit and they say they can not hand it over unless I sign a new contract.

The contract says nothing about when they should pay me so not sure if being late is a breech of contract but it does say the deposit will be protected. Am I legally allowed to leave them and keep the tenant fee free.

Please help

Ash



Comments

Graham Bowcock

22:08 PM, 20th March 2017
About 2 years ago

Dear Ash

It is disappointing that you are getting a poor service.

I think you should make it very clear to your agent that they are failing you. Delayed payments is always very worrying and suggests that there may be an underlying problem with the business which; if they are using your money that is wrong.

If you have already spoken to them (and it seems you have) then I would write to them and give them, say 14 days to address the failings (which need to be clearly stated) by way of a written response. Make it clear that if they cannot put things right then you will leave.

Having said that you do need to have regard to the Terms of Business (which I hope you have a copy of). This is what will tell you what the agent has agreed to do.

If the agent cannot give satisfactory assurances (and actions) then I would ask the tenant to send further monies to you directly, or a new agent, and not to the existing agent.

In light of the agent's actions I would personally have no objection to walking away from him; if he's confident to sue you then so be it, but you would have some peace of mind about future money.

Good luck

Graham

Mark Alexander

7:31 AM, 21st March 2017
About 2 years ago

Reply to the comment left by "DALE ROBERTS" at "20/03/2017 - 16:52":

There is no need to name and shame.

This website is dedicated to facilitating best practice.

If people do that they will not get caught out in the first place.

There are other property forums where you can name and shame if that's what you prefer to do but you and the forum owners risk being sued for defamation and libel.
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Ian Narbeth

12:11 PM, 21st March 2017
About 2 years ago

Dear Ash
You should see a solicitor and be prepared to pay a fee for sorting this out.

Unless you have an unusual letting contract it will be a term or at the very least an implied term that the agent protects the deposit and serves the Prescribed Information Notice within the requisite time. The agent appears to be in breach of that and the breach may be fundamental. Sometimes agents pay rent quarterly rather than monthly and this is something you should have determined when you took the agent on. Paying 6 weeks late in the absence of express agreement may or may not be a breach.

I am not clear about the timelines. You say the deposit " is not being protected for 2 months now." but also that the "agent regularly pays late even up to 6 weeks after the tenant has paid." When did the tenancy start and when was the deposit paid?

Subject to knowing all the facts one strategy is to write to the agent pointing out that their failure to protect the deposit has prejudiced you. Tell them you want their written undertaking to indemnify you against any penalty you may be required to pay in consequence of their failure. Give them 14 days to respond. If they are a member of ARLA or other agents' associations report them.

If you do not receive a satisfactory reply then I would be minded to write back saying that they are in fundamental breach of their contract with you and that you are terminating it forthwith. Require them to account for all sums owed. Furthermore, tell them they have no authority to deal with the tenant or to demand rent. Time your letters so that you can write to the tenant 10 to 14 days before the next rent payment date informing the tenant that XYZ are no longer your agents and all rent must be paid to you and that if XYZ say anything different the tenant is to contact you. Tell the tenant that if he pays any more rent to the agents he will have to pay you again.

This is a reasonably high risk approach and if the agents always have "one month in reserve" you will probably not receive the last month's rent without taking the agent to court. As mentioned at the outset you should take legal advice because there may be other facts you have not mentioned that affect the situation.

Mark Alexander

12:19 PM, 21st March 2017
About 2 years ago

Reply to the comment left by "Ian Narbeth" at "21/03/2017 - 12:11":

Thank you for commenting Ian, I was hoping you would as I felt a solicitors perspective was nessary in this case.
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