Managing agent did not serve notice to quit correctly

[senequier]

Wonder if anyone can advise -

 

a managing agent served a notice to quit on tenants but did not have proof the How to Rent booklet was ever served

 

- the first application to court therefore had to be withdrawn

- this has now resulted in tenants' lawyer asking for some £6000 costs.

 

I am thinking I should be able to claim this back from managing agent but would like to know where I stand legally.

Any help most appreciated.

[45002]

When you sought legal advice.

 

Did you ask the Solicitor about court costs, solicitor costs, who has to pay what and so on ?

 

I Don't think you have any chance of getting your £6000 off them, unless a court order's managing agent to pay costs.

 

 

[stu007]

Hi

 

I assume from your post that you are the actual Landlord and the Managing Agent was acting on your behalf with the property rental to this Tenant. (Could you please clarify that you are the Landlord?)

 

Has the Tenants Lawyer sent this demand for £6000 cost in a Letter Before Action?

 

So the Managing Agent applied to the court for repossession of the property and it had to be withdrawn due to the error of no proof/evidence of How to Rent Booklet had been issued to tenants. (could you clarify this is correct)

 

The Tenants Lawyer claiming costs of £6000 but has no Court Order for the costs so will have to go through the Court process for a Court Order to claim those costs starting with a Letter Before Action mentioned above.

 

1. You need to full read the Agreement that you as a Landlord signed with the Managing Agent fully.

2. You as the Landlord need to ensure the Managing Agent provides this Tenant immediately with a copy of the How to Rent Booklet and to be provided with Proof/Evidence this has been done

3. If the Tenants paid a Deposit I would ensure that you have proof/evidence from the Managing Agent that this was registered in a Tenancy Deposit Scheme and the Tenants were actually given a copy of the prescribed Terms of that Tenancy Deposit Scheme.

4. Is this Managing Agent a Registered Member of certain Bodies? check their website, if they are you need to read up on the Code of Conduct they have to abide by and how to complain about their actions.

 

This is my take on this from Landlord Perspective not Tenant from my read of your post

[stu007]

Hi

 

Now from Tenant perspective (until we get clarification whether you are Landlord or Tenant)

 

As the Tenant I have to agree with 45002

 

You should have discussed all the different cost involved with the Solicitor.

 

You would then have signed and Agreement Document with this Solicitor which will include a breakdown of there costs for their service therefore
any payment/costs for their services to date is on you as you employed their services and signed their agreement.

 

If you then seek to recover these costs from the Landlord/Managing Agent you will need to take Court Action from the start by issuing a Letter Before Action and if you do this via the Solicitor you are using the costs presently at £6000 will increase and keep increasing for every action that Solicitor takes on your behalf.

 

IMO you would have to take legal action against the Landlord/Managing Agent to seek recovery of these costs of £6000 and to get a Court Order for Recovery except IMO only this may prove costly to yourself as that How to Rent Booklet and Managing Agent withdrawing court action for recovery of the property IMO is a minor issue and it was you that signed the agreement with the Solicitors agreeing to there costs.

 

I think it may be difficult to claim the £6000 cost the Solicitor is asking of you unless a Court Orders is issued. (the Booklet IMO is a minor issue) if you still use the Solicitor to try to recover these costs via court action that £6000 will increase as I have previously stated and will need to be added to the recovery costs to the Court and you need to be aware of that.

 

As for the How to Rent Booklet and the Managing Agent withdrawing the repossession claim issued all the Managing Agent/Landlord needs to do is issue you with that Booklet ensuring they have Proof/Evidence that it have been issued to you and go through the repossession of the property action again serving everything properly

[senequier]

Hi Stu007 - and many thanks for such a thorough reply. Yes,my wife and I are the landlords,and the managing agents were acting on our behalf - the solicitor they work with discovered there was no evidence tenants had received the How to Rent booklet (they had given it to tenants but did not have a signed receipt for this) and advised us to withdraw and start again,which we have done. 

 

Tenants solicitors then claimed £5600,which has come down to £5000 after we offered £3000 - we have made a final offer of £3750 and if this is not acceptable,we will go for court assessment (this was solicitor's suggestion as he reckons their costs are greatly exaggerated). No LBA as of yet therefore.

 

Regrettably,we cannot find any agreement with the managing agents but we believe everything has now been properly served as the solicitor himself wanted to handle the new S21 in its entirety.

 

On the solicitor's advice (he works closely with the agents,he is not our own solicitor) we returned the deposit to the tenants which now of course leaves us in a vulnerable position.

 

According to letterhead,the agents belong to the Property Redress Scheme,Land and New Homes Network,CMP certified and UKALA - 

 

Very much appreciate your help with this.

 

[senequier]

15 hours ago, 45002 said:

When you sought legal advice.

 

Did you ask the Solicitor about court costs, solicitor costs, who has to pay what and so on ?

 

I Don't think you have any chance of getting your £6000 off them, unless a court order's managing agent to pay costs.

 

 

 

[senequier]

Hi 45002 - thanks for reply - are you looking at this from landlord or tenant point of view - I did not make it clear that I am the landlord,if that makes any difference?

[45002]

From a tenant's point of view and one for courts to decide on regarding the costs.

 

 

[stu007]

Hi

 

So the Tenants Solicitor is the one asking for £5000  (initially £5600 by tenants solicitor who reduced cost) and the Managing Agents Solicitor has been negotiating on your behalf to reduce the Tenants Solicitors amount.

 

Has the Tenants Solicitor provided an actual Breakdown of their costs?

 

What advice have you been given by the Managing Agents Solicitor about these costs and for them to claim such an amount because if these negotiations you are doing go nowhere if will be for the Courts to decide if the amount claimed is reasonable and to issue  a claim for those cost but the Tenants Solicitor would need to take Court action which at present they have not as no Letter Before Action has been sent as you mentioned.

 

Why was the Tenants Deposit returned to them while they are obviously still in the property if it was held in a Tenancy Deposit Scheme (TDS) and was it the Managing Agents decision or yours? (the main reason I ask is I find it strange that this has been done with tenant still living in the property)

 

As for the Agreement you signed with the Managing Agent although you do not have a copy that Managing Agent should so simply ask them to provide you with a copy of that Agreement you sign with them as you really need to see exactly what you agreed to and the services they were to provide.

 

 

[senequier]

12 hours ago, 45002 said:

From a tenant's point of view and one for courts to decide on regarding the costs.

 

 

Thank you for that

[stu007]

Could you answer my post#10?

[senequier]

Apologies stu007 - a 'minor hospital procedure' got in the way yesterday but we took your advice first thing and asked managing agent for a copy of the agreement - the girl dealing with this was in meetings all day yesterday (the standard response from this agency when you want something done immediately) but we have been promised a copy today - should we get it,I can then come back to you in full,I hope.

 

[senequier]

Hi stu007 - can now come back to you on the points you raise -

1 - correct,managing agents' solicitor negotiating to reduce the costs.

2 - we have a breakdown of their costs which were very well dealt with by 'our' solicitor,who believes a court would reduce their £5600 by at least a third - hence our final offer of £3750.

3 - the deposit return was a bit of a weird one - originally the tenants had use of a lock-up garage 50yds from the property; we told them if they wanted to renew the tenancy after the initial 12 months that the garage would not be included as we wanted it for our own junk.The solicitor said where a property is changed or not substantially the same as the original,then the deposit needs to be returned to the tenant and re-secured upon the grant of the next tenancy. He agreed with us that the removal of the garage was hardly substantial but to be completely certain of obtaining possession he felt it better that we return the deposit,which,via the DPS,we did.

4 - we now have a copy of the agreement with the agents and under 'disputes' it says ''any unresolved dispute between the client and agent arising in respect of the management of a property will be referred at the instigation of either or both parties to the Ombudsman for arbitration after our internal complaints procedure has been exhausted''.

Finally,the agent has today spoken to the tenants who say they have been unable to find any suitable accommodation elsewhere;they were originally served notice to quit in June 2020 and we think they think this is a reasonable reason to be able to stay on in the property. Agent says their budget and the type of property they require do not go hand in hand;at present the rent they pay is probably £300 a month below the going rate. Way back,we said they could stay if they paid the market rent - their reply to the agent was that we would not ever be getting a penny more than the old rent.

More than grateful for the time you are giving me on this,do appreciate it. 

[stu007]

Hi

 

I hope your minor hospital procedure went well and you have a speedy recovery.

 

Thanks for updating with your response to my question.

 

3 - Yes Solicitor is both Right and so Wrong, They are Right about the Garage removal on renewing tenancy would be a change to Tenancy and is a minor change but them stating to return the Tenancy Deposit is completely wrong as this should only have been done at the End of Tenancy/Repossession of the Property in case their is any damage etc. to the property. (You really need to have a good read up on Tenancy Deposit Scheme especially the scheme the deposit was held in before been handed back to the tenant) this is why I thought it very strange that the Tenancy Deposit was returned while they were still living in the property.

 

With the above 3- I would be asking the Managing Agent to provide you with evidence that the Tenant was provided with a copy of the Prescribed Terms of that Tenancy Deposit Scheme which they should be able to provide. If they cannot provide this then you have your reason why you were informed by the Managing Agents Solicitor to return that Deposit as the Tenant would more than likely have challenged this and won as it is a Legal Requirement. 

 

4 - Disputes where is state Client that is you the Landlord (so I think you need to ask the Managing Agent in writing who is paying their Solicitors Costs for this repossession and now the ongoing dispute with the tenant over their solicitor claiming their costs and where it states any of this in your Agreement as the Client with the Managing Agent as you need to be perfectly clear on who these costs fall on you the Client or the Managing Agent.) 

 

They were served the NTQ in June 2020 (could you clarify this as their were restriction in place about evictions due to COVID-19) the possession of a property is only delayed and the notice period required to be 4 months during these COVID-19 restrictions due to The Coronavirus Act 2020.

 

Guidance for landlords and tenants - GOV.UK

WWW.GOV.UK

 

The Tenant saying they have tried and cannot find anywhere else and that response from tenant I am afraid is not your or the Managing Agents responsibility mainly due to the NTQ in June 2020 you have given them more than enough time and as from 1st October 2021 all notice period returned to pre pandemic position (see above link). 

 

Couple of Question: (some the Tenant may try to use if not done properly and recorded evidence)

 

With the NTQ what Section was used and Grounds?

 

Are the Tenants Up to Date with their Rent?

 

Has the Managing Agent on your behalf since the Tenant has been in the Property done an inspection of the property giving the Tenant the required notice? (obviously taking into account the COVID-19 restrictions at the time)

 

Has the Tenant complained during their Tenancy about Repairs needing carried out and have these been fully updated/actioned and recorded?

 

Have all safety Inspections been carried out and Up to Date i.e. Landlord Gas Safety Inspection (only if Gas in Property) and recorded?

 

Have you Signed anything with the Managing Agents Solicitor acting on your behalf about their Costs?

 

 

 

 

 

 

 

[senequier]

hi stu007 

 

3 -  I will contact agents to ask if they gave the terms of the deposit scheme to the tenants - even the solicitor said it went against the grain bu to be completely certain of obtaining possession it would be the best course of action.

 

4 - I was asked for £355 by the agents in september 2020 to be forwarded to their solicitor for the original S21 but have not been asked for any more, despite a new S21 going in. It is correct they were served the original S21 in June 2020 but because of covid restrictions and court difficulties, the case was not scheduled to come up until 23 June 2021,and we discontinued on 26 June 2021. The new S21 was issued on 23 August 2021 with a NTQ for 30 December.

 

I don't know why the tenant keeps saying they cannot find anything - this has been said all along - despite 17months to do so.

Re NTQ - notice was by form of S21 no fault eviction as we wish to sell the property.

 

Tenants are up to date with rent but I suspect only because his father is the guarantor.

 

Managing agents have recently been in to the property (august 2021) to carry out full inspection, and reported it was in good order - there are no outstanding issues requiring attention.

 

Gas safety check has only recently been carried out as tenants refused entry 2 or 3 times, saying they were isolating (a well-worn excuse with them to refuse access),and as well as the Gas Safety Cert, tenants were also given copy of Assured Shorthold Tenancy Agreement ,How to Rent guide, Energy Performance cert and Domestic Electrical Installation cert - all this in august 2021 prior to new S21 being issued.

 

We have not signed anything with the agents' solicitor re their costs!

 

Finally, nothing is easy is it?!

 

Your hard work on this is really appreciated - we inherited the property and have let it to these same tenants for around 7 years (found by existing managing agents),but now wish to sell - had no idea it would be such a struggle.

 

Edited November 14, 2021 by dx100uk
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[45002]

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[dx100uk]

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dx

 

[stu007]

Hi

 

Thanks again for your update.

 

I now know why the Solicitor said to return the Tenancy Deposit but at the same time I personally disagree with the Solicitor stating that but its done now the good thing from your post is you stated the Father is a Guarantor which gives you that avenue if needed when the Tenants move out.

Seems like you are doing everything correct in re serving the NTQ just make sure this time the Tenant has no avenues to get you to withdraw that is why I asked certain questions which you have answered or are chasing for an answer to i.e. TDS Prescribed Terms of TDS given to Tenant.

 

Now I am not saying this may happen but to need to be aware of the what if you get the possession order and need to use Bailiffs to evict please make sure and have a good read of that link in my previous post as it does have info on Bailiffs again this is just in case as they may move out if possession granted after the set time limit.

 

Keep us updated on how it is going and you know where we are if you need any further advice.

[senequier]

Thanks so much for advice - really helps to stop feeling all alone!