Ripped off by estate agent

by Readers Question

10:01 AM, 10th July 2014
About 4 years ago

Ripped off by estate agent

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Ripped off by estate agent

I have just found out, after signing a contract with an estate agent, that they have found someone to rent it for three years instead of a year. Ripped off by estate agent

I was happy with a three year tenancy but unbeknown to me they taking their fees upfront fee so I wont receive any rent for 5 months!

I cant afford to do this.

I wish to now cancel the agreement as no tenant has moved in yet , can I do this?

Thanks

Ron



Comments

Mark Alexander

10:46 AM, 10th July 2014
About 4 years ago

Hi Ron

I hate to say it but this is a complex one for more reasons than you might care to imagine.

First and foremost, by agreeing to a 3 year tenancy there is a high likelihood that you will be in breach of your mortgage conditions. If you lender find out they may well be within their rights to call in the loan.

Hopefully the tenant has not taken possession. If that is the case then refuse to grant possession and tell you letting agents why, in writing, sent recorded delivery. This might put you in breach of contract with the agent but that's the lesser of the two evils when compared to you being in breach of contract with your mortgage lender.

With regards to the contract with your letting agency, the devil will be in the detail. If the contract is clear regarding fees then you might not have a leg to stand on. If it is unclear then you may have a case based on the Unfair Contract Terms in Consumer Contracts Regulations - see http://www.bailii.org/ew/cases/EWHC/Ch/2009/1681.html

If you claim that you didn't read the contract or didn't understand the contract that is no defence, you should have read it and taken legal advice if you didn't understand it.

It is highly unusual for three years of commission to be taken up front, however, whilst this may well appear to be unfair,it is my understanding of the law that if that was what you signed and agreed to contractually, and providing the contract is clear about this, then the contract will not be judged to be unfair in the eyes of the law.

I have asked Mark Smith (Barrister-At-Law) to comment on this thread. If there is a way for you to wriggle your way out of this mess he's the man to help you find it.

Good luck - I think you're going to need it.
.

Mark Alexander

10:50 AM, 10th July 2014
About 4 years ago

PS - I removed the name of the Estate Agent from your question as this would contravene our no name and shame guidelines - see >>> http://www.property118.com/what-property118-is-not/

Ian Narbeth

11:08 AM, 10th July 2014
About 4 years ago

I endorse Mark's comments and would add two points:
1. Even ignoring the point about breaching mortgage conditions, and with benefit of hindsight, you probably do not want a 3 year tenancy until you know who the tenant is and have seen how they treat the property. Otherwise, you could have to wait 3 years to serve a s21 notice. You should tell your agent to offer a maximum 1 year tenancy initially.

2. It is surprising that a tenant will sign up for a 3 year lease. Check to see if the tenant has been granted a break clause after say 12 months. In that case, the normal way to value the tenancy in the landlord's hands is to treat the tenancy as one for the time until the break date as that is the longest guaranteed term. If there is a break and if the agent's terms say that they get commission upfront on the full term then that is manifestly unfair and may give you rights under the Unfair Contract Terms in Consumer Contracts Regulations.

Mark Smith may like to comment but I disagree with one point of Mark A about the Unfair Contract Terms in Consumer Contracts Regulations. It is not the ambiguity that is the issue but the unfairness of the terms. They may be crystal clear but unfair and the Regulations will apply.

Jerry Jones

11:21 AM, 10th July 2014
About 4 years ago

Mark will shortly be along, I am sure, to plug the concept of the Deed of Assurance, to give a tenant the peace of mind that they may have been seeking when asking for a 3 year tenancy.

It would also ring cannabis farm alarm bells, which you would need to check out.

Mark Alexander

11:38 AM, 10th July 2014
About 4 years ago

Reply to the comment left by "Ian Narbeth" at "10/07/2014 - 11:08":

Hi Ian

Regarding your comment "It is not the ambiguity that is the issue but the unfairness of the terms. They may be crystal clear but unfair and the Regulations will apply."

I generally agree with this but the OFT vs Foxtons case ruling focussed very much on the clarity of the contract, which Foxtons have now amended. The other point to consider is that the ruling was itself ambiguous as to when a landlord is considered to be a consumer and when UTCCR would apply. It is now a given that a landlord with just one property is a consumer but the cut off limit is not specified. West Bromwich Mortgage Company have flown a kite based on this ambiguity and have imposed their tracker rate margin hike on landlords who own three or more properties, presumably in the hope of avoiding UTCCR. Fortunately we think there is a contractual constitution argument against them but that's by the by, the Courts will decide.

In conclusion therefore, whether or not the contract is unfair and whether or not it is ambiguous, if Ron is not considered to be a consumer then UTCCR will not be a useful weapon in litigation, if it gets that far.

Fortunately for Ron, if it gets to Court any claim is likely to fall below the small claims £10,00 threshold so he is highly unlikely to be exposed to the other sides legal costs in the event of losing his case.
.

Mark Alexander

11:46 AM, 10th July 2014
About 4 years ago

Reply to the comment left by "Jerry Jones" at "10/07/2014 - 11:21":

Hi Jerry

Thanks for mentioning Deed of Assurance - I have reprimanded myself for missing this opportunity! LOL

There is a lot of information and informative debate over 3 year AST's vs a Deed of Assurance in the following thread >>> http://www.property118.com/the-private-rented-sector-evolution-deed-of-assurance/40949/

As you say, this could be a useful compromise tool for Ron to consider.
.

Mark Smith (Barrister-At-Law)

20:16 PM, 10th July 2014
About 4 years ago

Ron,

As previous posts have said, the devil is in the detail of the contract. It could easily bind you to accepting whatever the agent throws at you, it all depends on the wording.

Please PM me the contract so I can advise you.

Recardo Knights

9:48 AM, 11th July 2014
About 4 years ago

Hi Ron

You may have been wrong to sign a contract you didn't read or understand. Have you got written proof by email or letter which says you asked the agent for a one year contract, if so it may help in your defence.

If they knew you wanted a one year term, and it was only verbal it seems they are sticking you with a 3 year term for monetary gain, and 3 years is not in your best interest.

AA Properties Wales

11:15 AM, 12th July 2014
About 4 years ago

Ron, I would think that the agents fees are only paid WHEN they actually receive the rent. Seeing as NO RENT has been received then no commission should be paid. I would get out a solicitors letter to them to "cease and desist" all activity on this property, then find another agent.
regards,
Kevin

Simon Topple

12:47 PM, 13th July 2014
About 4 years ago

I may be wrong (one of the legal bods can point it out if needs be) but don't 3 year leases have to be registered with the land registry? I would have thought this would qualify.

As to the rest, the other posters have it well covered. I would be rejecting the tenancy out of hand. If it goes wrong - nightmare tenants, non paying tenants, anti social behaviour, etc - your agent has already been paid and will be no help, and you will find it next to impossible to get possession unless its via the mandatory grounds of Section 8, presuming the tenancy is an AST

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