UK Landlord Forum / Life

Hi Everyone! (& many thanks to you David for your advice earlier!)

I thought l should share my situation so that hopefully you will never make the same mistakes as l have. Unfortunately, a 'wise-guy' tenant and a dubious agent are blighting my life. l can only blame myself for taking my eye off the ball, but now it's too late. I am now only two months or so away from having my BTL property repossessed and I have also become a criminal in the eyes of the law.

My 'crime' ... being a Landlord who left everything to the managing agents to sort out. Not only am l at real risk of losing my property (& blackening my so-far excellent credit record), there's a good chance that l will lose my job which relies on having a clean criminal record and no CCJs. l am under a duty to my employers to disclose any changes to my status, financial or otherwise. I am in real dodo...

I really apologise for this longish post, but l believe that detail is important. The detail could stop you falling into the same 'traps' as l have been caught. I also appeal to our more 'learned' Landlords for any tips on what l should do to get myself back on track (YES PLEASE!!!). I will try and be as concise as possible.

Background
I am an ex-pat living and working in France who purchased a property in Romford (Essex) with a tenant in situ, who was on a six-month AST that ended on 28 April 2015. My completion date was set up for 28 April 2015 to coincide with the end of the tenants six-month AST. l then granted the tenant a twelve-month AST (the first tenancy) until 28 April 2016 via the agent who handled the sale. l had employed the same agent to manage the property and basically left everything up to him.

All went well with the first tenancy so l was more than happy when the tenant said he wanted to remain at the property for another 2 years. Rental prices in the area had gone up so the agent negotiated a fair rent with the tenant that worked for everyone. The agent said it would be best to have 2 x 12 month AST agreements (Year 1 @ £1000pcm & Year 2 @ £1100pcm).  @David - I am not sure how much influence the tenant had in the agent's decision as l was in France during this period. The agent says it was done as 2 separate AST agreements because it was easier for him?

The 2 ASTs were both signed and dated at the agents office - (28 April 2016 to April 2017 - the second tenancy) and (28 April 2017 to April 2018 - the third tenancy). The tenant was happy, the agent was happy and so was l... until 6 months after the 2 ASTs were signed...

In October 2016, my agent retired and recommended another agent that he knew to replace him as the managing agent. I had no problems in following the retired agents advice, after all l had been receiving rent for over 18 months without a hitch from a very low maintenance tenant and a fairly 'cheap' agent... so no problems right? WRONG!!!

It all started to go wrong when the tenant and the new agent fell out, apparently over some minor decoration to the property. The situation escalated (all without my knowledge) and I am now faced with the following problems. The tenant stopped paying rent in February 2017 (7 months ago!!!). The new agent did not tell me about any problems or the disagreement with the tenant. I would have gladly redecorated the whole property and fitted a kitchen and new bathroom suite with gold taps had l known (well not the gold taps... But l would have at the very least tried to keep the tenant happy, within reason).

The new agent 'advised' me to start possession proceedings under Section 8 for rent arrears, which l did. The new agent advised me that l could get up to £300 more per month, which l could. I left everything to the agent to sort out, l really could not get back to the UK and have an extremely intensive job in France, so l was unable to give the situation much thought. I had a managing agent to take care of everything.

Fast forward to the hearing last week... it did not go well at all. I did not get a possession order, the tenant is still in my property... owing over £7000+ in rent. I have now received a copy of the Court Order and the Defence/Counterclaim and exhibits. The exhibits were mainly copies of emails between the tenant and the agent, not pretty reading at all. 

I now have to find thousands from somewhere to fund a Solicitor/Barrister to try and get out of this sh*t! The only problem is... l don't have & can't borrow any more money. I am already getting letters from the Bank after missing the last 3 instalments on my mortgage & am likely to miss more the longer this carries on. (-; don't worry... l am not asking you for financial help... just any advice on what l can do please! The tenant works for a well-known organisation as a housing adviser.

The Court Order
1. The hearing adjourned to 15th October 2017 to enable the parties to consider their position.
2. Permission to the Defendant to file and serve a fully pleaded defence and counterclaim by 18th August 2017. In default, the court will proceed on basis the counterclaim is limited to the amount payable under section 214 of the of Housing Act 2004.

The Defence
The Defendant admits that he has withheld some rent payments as they have fallen due but is not able to comment on the level of any rent underpayment. The Defendant asserts in any event he is entitled to set off against any rent otherwise due the sums Counterclaimed as set out below.The Defendant respectfully asserts to the Court that the Claimant should not be permitted to proceed with the possession claim in any event after consideration of the Defendants representations regarding the Particulars of Claim and the Section 8 Notice as set out below.

The Section 8 Notice
1. The Section 8 Notice was not in the prescribed form required by statute since 1st December 2016
2. The Claimant failed to complete section 3 of the Section 8 Notice.
3. The Claimant failed to provide the full text of the ground relied on in the Section 8 Notice.   
4. The Claimant failed to restrict the claim solely to Ground 8 as detailed on the Section 8 Notice. In this regard, the Court is respectfully invited to note that the Particulars of Claim refers to grounds 8, 10 & 11.

Particulars of Claim (POC)
5.   At Section 2 the Claimant failed to detail the Defendants name.

6.   At Section 3 the Claimant incorrectly states that the tenancy is an Assured Tenancy.

7.   At Section 3 the Claimant refers to the expired second tenancy. The claim was filed on 6th July 2017, nearly 6 weeks after the second tenancy had expired.

8.   At Section 4(a) the Defendant asserts that the Claimant failed to exhibit a compliant rent statement demonstrating any arrears.a.   Further, the Claimant failed to serve a full up to date Schedule of the purported arrears history within 7 days of issuing the claim and POC.

9.   Section 4(b) of the POC has not been deleted by the Claimant implying that the Defendant had failed to comply with other terms of the tenancy. The Claimant has failed to provide any evidence in support of this implied allegation.

10.   Section 4(c) the Claimant has failed to restrict the claim to Ground 8 as stated in the Section 8 Notice.

11.   Section 5 of the POC refers to the steps taken to recover any arrears. The Claimant has simply put "letters". The Claimant has failed to exhibit any such correspondence.

12.   Section 7 of the POC refers to any knowledge the Claimant has of the Defendants circumstances. The Claimant has simply written "none". The Defendant asserts to the court that the Claimant is the Defendants Landlord and as such has access to details of the Defendants circumstances relevant for inclusion.

Any tips on how to deal with the Agent and/or Solicitor would be so much appreciated!

Ok, so l am guessing that the tenant has blown my claim out of the water by the issues raised about the Section 8 Notice and POC? The Solicitor seems to think so... But if that was true, then why did the court adjourn the hearing, instead of striking out my claim? Is there still hope l wonder? Anyway, it gets worse!
The Counterclaim
The previous Landlords liability for the Claimants breaches

14.   The Defendant respectfully complains to the Court that the Claimant failed to provide the Defendant with the Notice of Assignment as required under Section 3 of the LTA 85 and Section 50 of the LTA 87, together "the Section 3 Notice". The Defendant respectfully asserts to the Court that the Claimants failure to provide the Section 3 Notice entitles the Defendant to hold the previous Landlord jointly and severally liable for any breach committed by the Claimant as provided under Section 3A of the LTA 85.  In this regard, the Defendant respectfully requests the permission of the Court to enjoin the retired agent and the previous owner of the property to these proceedings.

The Claimants liability for previous Landlords breaches
15.   The Defendant respectfully asserts that the Claimant steps into the previous Landlords shoes from the date that the Claimant purchased the property and became the Defendants Landlord. The Defendant respectfully asserts to the Court that the Claimant is liable for the previous Landlords failure to protect the tenancy deposit within 30 days. The previous Landlord protected the tenancy deposit on the 34th day instead of within the required 30 days. Additionally, the Defendant respectfully asserts to the Court that the Claimant is liable to the Defendant for the previous Landlords failure to provide the Prescribed Information. In this regard,i.   The previous Landlord had never provided the Prescribed Information within 30 days, or at all

Rent paid by the Defendant to the previous Landlord was not lawfully due
16.   The Defendant complains to the court that the (retired) agent had falsely represented himself as being the landlord on the first AST agreement and failed to reveal the identity of the 'true' Landlord. – (I assume the true Landlord is the vender?)
The Defendant respectfully asserts that the rent was not 'lawfully due' during all periods of the six month AST agreement between 28 October 2014 and 28 April 2015. The Defendant respectfully asserts the he is entitled for all sums paid as rent for the 6-month AST to be repaid.  Further in this regard, the Defendant respectfully asserts that the Claimant is liable to refund the Defendant all sum paid as rent to the (retired) agent. That's £5400...WTF!!!

Claimants failure to protect the tenancy deposit & provide the prescribed information
17.   The Claimant failed to protect the tenancy deposit & provide the Prescribed Information to the Defendant within 30 days, or at all.
a. The Claimant totally failed to protect the tenancy deposit for the first tenancy dated 28 April 2015 to 28 April 2016. Additionally, the Claimant totally failed to provide the Prescribed Information for the first tenancy dated 28 April 2015 to 28 April 2016.

b.   The Claimant totally failed to protect the tenancy deposit for the second tenancy dated 28 April 2016 to 28 April 2017.   Additionally, the Claimant totally failed to provide the Prescribed Information for the second tenancy dated 28 April 2016 to 28 April 2017.

c.   The Claimant totally failed to protect the tenancy deposit for the third tenancy dated 28 April 2017 to 28 April 2018. i.   Additionally, the Claimant failed to provide the Prescribed Information for the third tenancy dated 28 April 2016 to 28 April 2017.

Claimant employed 'illegal agent' to manage the property
19.   The Defendant respectfully complains to the Court that the new agent failed to register with any of the 3 redress schemes as required by statute.
The new agent failed to register as a Data Processor or Controller with the ICO despite being obliged under the Data Protection Act 1998. Further, the new agent failed to comply with the Defendants SAR request made on 14 March 2017. The new agent had failed to register with the FCA despite being obliged to register.

The Emails between the tenant and the new agent
There's more!!! - The tenant has exhibited to his counterclaim a series of emails that were exchanged between himself and the new agent. This is the first time l had seen any of these emails!

Basically, the tenant had the confidence (in October 2016 – 7 months before the new agent served the Section 8 Notice) to complain to the new agent about the Section 3 Notice not being served and that l had twice failed to protect the deposit and provide the prescribed information! The new agents reply email basically dismissed the tenant complaints. The new agent told the tenant that he was not prepared to investigate the complaints or "indulge in correspondence" with the tenant until the tenant provided had proof that the deposit was not protected. – Sorry but... WTF!

In one particular email, the tenant told the new agent that he wanted "to discuss matters informally to resolve the situation without the stress and expense of going to court". The agent did not relay any of the tenant's emails or representations to me! That type of language would have rung warning bells to me right away and l would have wanted to speak to the tenant had l known!

Anyway, the tenant kept paying his rent up until January 2017 despite this 'disagreement' with new agent. For some unknown reason, the agent then told the tenant that the third tenancy agreement was not valid – WTF! Apparently because; "you can't agree a AST a year before it is active". I am not sure if the new agent is right, but why rock the boat! I was happy with the third tenancy!

A few days later, the agent served a section 21 notice on the tenant without my knowledge or permission! – Sorry but really, can agents do that?

The tenant then said a big 'F**K U' to the new agent (& me!) and stopped paying rent from that date onwards... The new agent had told me absolutely nothing... nish...nada!  I was happy with the ASTs as they were and did not know the new agent had served a section 21 notice on my 'behalf' – apologies again...but WTF!!!

The Solicitor now  wants me to pay £1500 on account so l can get a Barristers opinion but has warned me that it will cost many thousands to get the tenant out and if l were to lose than l would be liable for the tenants costs as well as being without rent...

The tenant has sent a without prejudice letter asking for the payment of £6000 plus a positive reference and he would move out in 4 weeks... The Solicitor said it would be cheaper to accept the tenants offer.

Confused? YES / Stressed? Definitely! / Losing sleep? Yep & turning grey! / Can you help to shed some light? HOPEFULLY!!!Any advice would be very much appreciated...

Consider this:

"The tenant has sent a without prejudice letter asking for the payment of £6000 plus a positive reference and he would move out in 4 weeks."

And try to figure out if there is another point where that offer would still come to pass... £3,000, £4,000, £5,000?... and if you can swallow it.

Is it never going to be in your interest (indeed anyone's really) to go to Court even more. It sounds like everyone would actually be glad to reach some kind of compromise. The pay-off would be painful to accept but it would bring an end to the situation and not jeopardise your employment situation in any way as you would ensure no-one was said to be "at fault".

I would be phoning the Tenant, without any Agent involvement at all, remaining completely calm... explaining what you've explained here, and that you feel just as much a victim of circumstance as they do (however, that will not wash as the Agent acts on your behalf in all things) and see if there is any common ground at all where you can meet-up. I would be asking... "how did you arrive at that £6,000 figure and what would you really be willing to accept?"

Your thread is entitled Tenant taking you to the cleaners... it's not really. You've taken your eye completely off the ball... you can't do that. I get annoyed with Landlords who think this is an easy game which they can just hand off to an Agent - everyone who's lived in the UK knows what Agents are like, there are no excuses for thinking they're going to be competent or anything but self-serving - half of them aren't even trained, in anything... anyone can set themselves up as an Agent.

I would do all I could to settle.

Hi have you managed to resolve this issue, if you are still having issues I am happy to advice you as a member of this forum.

Wow... As a new prospective landlord and even after reading this entire site, this is what has put me off letting agents and fully managed. 

I assume you are taking legal advice - I might also consider asking the additional question as to whether having paid for a fully managed service from the letting agent you are not due any redress for issues that were directly within your appointed letting agents control (for example the tenancy deposit protection being delayed).

Other than that all I can offer is my thanks for a useful post.  I hope you get this sorted soon!