UK Landlord Forum / Life

After my most recent experience with my managing agent failing to protect the deposit and then trying to conceal their error I'm considering doing away with an agent altogether from the next renewal.

A few things come to mind.

I believe the tenancy can just go periodic at the end of the fixed term without any need for new documentation.  But we'd still be relying on the current agreement which is technically the agen't intellectual property (in the loosest sense of the term...).  Should I draw up a new agreement anyway?

What happens to the deposit?  Its in the agent's account and registered at DPS.  Should this be paid out to me and I re-register with DPS or what happens? 

The agent might still try to enforce their finders rights since the tenant isn't changing.  I propose sending them a letter telling them our agreement will be dissolved and all rights/responsibilities of both parties will cease on <DATE> and asking them to respond with their acceptance.  So far as I am concerned they have breached the contract due to their earlier negligence anyway so this should give me a way out.

Don't know yet if the tenant will be agreeable to this as it would mean him arranging his own repairs as I'm too far away to do this effectively.  I'd give him a break on the rent to reflect my reduced costs so that might be enough incentive for him.

Thanks as usual for any advice.

The agreement you're using is, strictly, the intellectual property of the Agent... that said, it's not exactly a secret, everyone has had sight of it. The bigger issue you have, really, is that just like the Tenant potentially not being agreeable to the proposed change (although not being able to reject it) they can refuse to sign a new agreement... they're not obligated to sign up to something you put in front of them (many won't be aware of this, of course).

For the Deposit, it can be transferred... you would need to register an account at the DPS and get an ID etc., then you can ask for it to be transferred - it shouldn't need to be paid-out-and-paid-in.

Quote from: Hippogriff on June 14, 2019, 11:46:35 AM
The bigger issue you have, really, is that just like the Tenant potentially not being agreeable to the proposed change (although not being able to reject it) they can refuse to sign a new agreement... they're not obligated to sign up to something you put in front of them (many won't be aware of this, of course).

Sorry, didn't follow that.  You mean the tenant isn't obligated to sign up to a new agreement?  Wasn't really planning to put this in writing.  Hoping to do this without any paperwork whatsoever.  It'd be a verbal agreement.  If it all goes south then I can always engage an agent again. 

Well, you'd clearly asked if you should "draw up a new agreement" and to any reasonable person it would be OK to infer you meant a document... you definitely didn't communicate the notion of going verbal. Stating that now as though we're supposed to have miraculously deduced it is just funny. This makes me think your plan is still rather fluid...

Is a verbal agreement legally binding? Sure. Is a verbal agreement open to ambiguity? Sure. Is a verbal agreement a recommended approach? Surely not.

Quote from: prospecttech on June 14, 2019, 01:12:36 PMHoping to do this without any paperwork whatsoever.

It's a good plan. Nothing can go wrong.

In the circumstances, maybe the first thing to consider would be changing managing agents, rather than doing without?

Few agents are brilliant, and many of them are a total waste of oxygen but using an agent is definitely a better idea than self-managing at arms' length without any paperwork and asking your tenant to sort out repairs.

So the saga continues.   The fixed term has ended and the tenancy is now periodic.  That's what I meant by no additional paperwork, none required, tenancy goes periodic on the same conditions.

Since then, between the tenant and I, we have successfully pulled off a non-trivial boiler repair so that aspect works perfectly.  (Water was getting in through the flue due to overflowing guttering, all the tradesmen involved pointed fingers at each other, building manager was MIA, the best the boiler guy could suggest was fitting a new one etc..  In the end we just extended the flue and all is good again.  No way a managing agent could have solved that.  But I digress.).

I told the agent I would be terminating their agreement as of 1st Aug.  I timed that badly though because there was a rent payment in the pipe at the same time.  The agent is now holding on to that rent payment in lieu of future fees i.e. the 10% they believe they are due for the sitting tenant.  Except that I have told them in no uncertain terms they are being terminated because they were deliberately misleading about the deposit protection issue.  Implied condition of reasonable skill, put client's interests first etc.  Next step for that one seems to be a court judgement unless someone can suggest an alternative course of action?

The other issue is that I have requested the deposit to be moved into my account at DPS.  Agent refusing to do this unless she sees the new signed tenancy agreement.  Now, I can appreciate that the agent needs confirmation that the tenant no longer expects them to be protecting the deposit, but could this not be done by way of a signed letter from tenant to agent?  And on the one hand we are periodic on the same terms, but part of those terms are that the agent protects the deposit and we want to vary that, so do I really need a new agreement after all?

My next issue is that the EPC expired during the fixed term.  As I understand it a statutory periodic tenancy is not a new tenancy so there is no need for new prescribed information so no need to renew the EPC.  Or did I get that backwards and its a contractual periodic tenancy that is a continuous and a statutory one is a new one?

And, yes I may end up taking Mortimer's advice and hand this over to another agent as its proving to be rather tiresome.

An EPC lasts for ten years from the date of issue.  I always replace mine as soon as they expire, so that if a tenant moves out for whatever reason I can re-let immediately without any hassle.  However, strictly speaking you do not require an EPC until the next time you market the property.  See sections 6 and 7 of the Regulations, which you can read here:  http://www.legislation.gov.uk/uksi/2012/3118/contents/made

Oh -- yes, and if you seriously do plan to carry on without doing any paperwork at all -- check whether the tenancy that you're rolling over complies with the Tenant Fees Act 2019 which you can read here: http://www.legislation.gov.uk/ukpga/2019/4/contents/enacted -- chances are it probably doesn't, which is not an immediate problem because you've got a grace period to come into compliance, but it's a likely future one.

I would always advise any landlord to be absolutely meticulous about paperwork, as central government keeps on passing laws that have savage penalties for non-compliance.  In other words, I exactly agree with Hippogriff.

Quote from: prospecttech on August 22, 2019, 12:58:00 PMThe other issue is that I have requested the deposit to be moved into my account at DPS.  Agent refusing to do this unless she sees the new signed tenancy agreement.  Now, I can appreciate that the agent needs confirmation that the tenant no longer expects them to be protecting the deposit, but could this not be done by way of a signed letter from tenant to agent?  And on the one hand we are periodic on the same terms, but part of those terms are that the agent protects the deposit and we want to vary that, so do I really need a new agreement after all?

I often find it baffling how Agents get things mixed-up. It seems your Agent here has the belief they don't actually work for you (not for much longer) and take direction from you - if you tell the Agent to transfer the Deposit to another Scheme / Account then they should just do it. It's not their money to withhold if that's why they're precious about it. More likely they've either spent it, if it was an Insured Deposit (I can't be bothered to read back and see if this detail was here), and can't immediately get it back... or it was never protected anyway (again, can't be bothered checking)... or they're just putting as many obstacles in your way as possible.

That you -as Landlord are ultimately responsible for the Deposit being protected - it's almost as if what they're doing is some kind of obstruction... or theft. I would be all over them in harsh terms - "you work for me, I'm you employer, you take direction from me, this is not your money, I want the Deposit moving to my Scheme account, you don't need - or get - to see my new AST, it's not pertinent to you at all, it's between myself and the Tenant and you're not involved in this relationship any more".

The cheek! The Agent would not be liable for non-Protection in any real-world scenario (although I suppose some Landlords have gotten their Agents to carry the can) so there's no risk to them, I'd say.

Well, the agent doesn't work for me anymore.  I've tried to make that very clear to her.  But on the one hand she thinks I'm still her client and she is entitled to extract a fee from me.  On the other she refuses to take my instruction.  Can't be both at the same time.  The deposit certificate I have doesn't say whether its the insured scheme or the custodial scheme.  Should it?  Its entirely possible its a ringer.

The current tenancy agreement doesn't comply with the new letting fees rules.  Can I go periodic but add an addendum deleting or changing existing clauses? 

Does either changing the agreement or changing the deposit id trigger the need to serve prescribed information all over again?

Not necessarily, but in the circumstances one option is to terminate the tenancy, which would force the agent to return the deposit to the tenant.  Offer your tenant a fresh, compliant tenancy agreement for an initial period of six months to commence on the day the previous one terminates, and lodge the deposit (custodially) with Mydeposits when it comes in.

Alternatively and in my view preferably, locate an alternative local lettings agency and ask them to sort it out.

I would also do a reset.

I know you wanted to "go verbal"... I also know folk on here thought "you were mental"... neither of those are quotes, although I put them in quote marks.

Quote from: prospecttech on August 22, 2019, 04:53:09 PMThe deposit certificate I have doesn't say whether its the insured scheme or the custodial scheme.  Should it?

I can only comment on 2 schemes... and the Certificates I receive from mydeposits Insured... it does not detail Insured anywhere on it. The Prescribed Information certainly would though.

I was in a similar situation but chose to change the agent, not to do it myself. The fixed term agreement was expiring at the beginning of September, I got the last, August rent and then, giving the agent  a month's notice, informed them that I will not be renewing. I had another agent lined up to take over. My contract said that ending agreement is either at the end of tenancy or before with some fees. Agents clearly were not overjoyed but went along with it. Tenants decided to stay and I signed off the new 6 months contract with them and the new agent.

Please, always insist on managing deposit yourself. It is your responsibility and you will be penalised if something goes wrong with this money, so sod the agent faffing with it. I always managed mine myself lodging it with DPS. I had to repay the excess to the tenant, so that the remaining deposit is within the current [sodding] law of 5weeks rent max.

Good luck