Taking letting agent to court to retrieve 'tenancy renewal' fee

clutton_2

the agent is only an agent.. the LL is liable in law. Why not write to the landlord and explain your gripes and see what s/he says about this first - just politely ask for the refund of the fee, and explain why you think it was illegal/wrong.

If you take the agent to court you will have to face a fully qualified solicitor, possibly in a higher court. if you take the LL to court he may want to settle out of court, and even if he doesn't want to settle, he will want it heard in the small claims court to keep his costs down.

A word of warning, there was a court judgement last year in which the agent was deemed to be just as legally responsible as the landlord in a particular case...

Manual_Reversion

princeofpounds wrote: »

The agent did NOT 'issue' the periodic tenancy because their version never came into effect, you need to correct that language.

You need to be very specific on WHY you are appealing and WHAT grounds. Use the TDS's own language at all points so they can relate it to their internal procedures.

For example, use the principles I referred you to in the other thread. Refer to the document and which ones might apply. Refer to the guide to their own appeals and that you are appealing on the application of the law.

Split it down into very simple sentences and mini-paragraphs. Stylistically this might seem a little abrupt but you need step-by-step logic that is easy to follow.

I would suggest something like (very loosely):

Title (Complaint/Appeal on.... )
Reference (TDS case number)

I am appealing on the basis of the application of the law to my case, and also that TDS did not properly administer its own principles in the judgement blah blah... I believe this case needs review by a senior adjudicator as a result....

concise recap of the situation...

specific points of contention
1) The 'new' periodic tenancy agreement could never have been 'issued' because you never signed it. Simply printing papers on a printer does not and can not constitute the issuance of contract. by law, as that requires agreement.
2) The adjudicator says 'tenants were happy for the periodic continuance....' in their judgement. Remind that Statutory periodic tenancies arise by default in law and so issuance of a further contract was not required (and indeed was explicitly refused, and did not happen), so the adjudicator did not understand the proper application of law. Even better if you can find the reference in the appropriate Act of parliament where SPTs are outlined.
3) If the logic applied by the adjudicator is extended they coudl just print tenancies unilaterally as often as they liked and make a charge.
2) The amount of the charge is not specified in the tenancy agreement, as required per TDS principles in document 'blah blah'
3) The ability to take the deposit for agency fees is not specificied in the tenancy agreement, as required by TDS....


etc.

Section 5 of Housing Act 1988 is where SPTs come from. http://www.legislation.gov.uk/ukpga/1988/50/section/5

Thank you PoP, that is all extremely helpful. It's clear I need to re-write my complaint to the TDS, along the lines you have suggested, for it to have any chance of success.

I don't think it matters too much, but you have mentioned it once before, so I should clarify. It was a 'primary tenancy', which I don't really understand, but struck me as odd right from the outset as the "Landlord", as specified in the AST, was the letting agent itself, despite the fact that they took instructions from the owner of the property. I'm not sure, but it's as if the owner effectively devolved power to the letting agents. I guess, since the letting agent was named as Landlord, the letting agent could evict us, without knowledge of the owner, but that hardly matters since it didn't happen.

Unfortunately it is written into the AST that the letting agent may deduct their fees from the deposit. My initial reaction was the same as yours I suspect, namely that the agents' fees should bear no connection to the deposit. They do, unfortunately. The clause was there for me to read when I signed the initial contract, so I must accept that the agent is quite within their contractual rights to make a claim from the deposit, as they have done. The fees are also quoted in the original tenancy agreement, but I think there's been a VAT change since then, which has increased them a tad, but I'm not sure I have the mental capacity to be able to quibble over the odd pound or two, so I've not even considered it.

It's all about principle, refusing to be shafted, or rather protesting to be de-shafted, rather than the cash itself.

It may take me some days to rewrite my complaint to the TDS, as I have three long days at work from tomorrow. It will be done though.

Manual_Reversion

MissMoneypenny wrote: »

...have you got legal cover with your house contents policy? Or legal cover with any policy or credit cards?

Reading your thread, I'm so glad my son refused to use the deposit dispute service and opted for court instead (using his legal cover on his insurance).

Thanks, good call, I'll look into it. Although at the moment I'm hoping to avoid the courts and successfully petition the TDS to overturn their own decision.

To be honest it never occurred to me to do anything other than use the TDS. I've obviously been lucky as over a total of five tenancies since 2005, with a period of ownership in between, I've never had any problems retrieving the entire deposit. Well done you and your son for being savvy enough just to take it to small claims and be done with it.

Manual_Reversion

clutton wrote: »

the agent is only an agent.. the LL is liable in law.

A word of warning, there was a court judgement last year in which the agent was deemed to be just as legally responsible as the landlord in a particular case...

Thank you clutton. I wonder if this has any connection to the fact that our tenancy was a 'primary tenancy', as I have spoken about in a previous post. In our case the Landlord, as specified on the AST, was the letting agent itself, despite them not owning the property.

Smoke and mirrors.

Manual_Reversion

Do people agree that the two threads should be merged, as they are effectively two prongs of the same dispute? If so, how would I go about doing that?

Sorry for the basic questions, I'm more of a lurker than a poster, until now.

clutton_2

in 12 years i have never heard the term Primary Tenancy... why not ask the question on this forum http://swarb.co.uk/phpbb/ which is primarily a legal site, which is exceptionally useful... there is a specialist LL&T section


WHO owns the property ? what is written on the AST as being your LL ? what is the address for service as listed in your AST

Manual_Reversion

clutton wrote: »

in 12 years i have never heard the term Primary Tenancy... why not ask the question on this forum http://swarb.co.uk/phpbb/ which is primarily a legal site, which is exceptionally useful... there is a specialist LL&T section


WHO owns the property ? what is written on the AST as being your LL ? what is the address for service as listed in your AST

The Landlord, as stated on the AST, is the letting agent, and the TDS paperwork acknowledges this. The TDS also acknowledge the tenancy as being a 'primary tenancy', whatever that means. However the property is owned by an individual, and through my discussions with the owner directly, they seem to ultimately call the shots on what happens to their property. The letting agent is a national brand, and has what I perceive to be a pretty poor reputation, for what that's worth. The AST itself makes no mention of the owner, although there were separate documents that gave us the address and other contact details of the owner, so that we could contact them directly for repairs etc. It's as if owner has subjugated all powers to the letting agent, but retains the responsibility of maintenance etc, which the letting agent has nothing to do with.

Utterly confusing, I know, and I strongly suspect that the owner had no idea what they were doing when they signed up to have the property let with the current agents, but that's off-topic and irrelevant so I'll make no further comment on that.

Manual_Reversion

clutton wrote: »

...why not ask the question on this forum http://swarb.co.uk/phpbb/ which is primarily a legal site, which is exceptionally useful... there is a specialist LL&T section

Thank you for the link, I didn't know of it. At the moment I don't think I really need to add to the complexity by getting detailed advice on the nature of the tenancy. It was what it was, and the TDS seemed to acknowledge it. What I need to do is prepare a decent argument in law why the TDS should overturn its' own decision.

Manual_Reversion

This is the basis of our complaint to the TDS:

"The Agent offered us a renewal contract but we refused on the basis that, by law, an AST automatically reverts to Statutory Periodic by default, so there was no need to pay for a wholly unnecessary new contract. The Agent understood that this was the basis for us declining the renewal contract but replied that it wasn't our decision to refuse such a contract. The unwanted renewal contract was duly posted to us anyway. I find it totally wrong that the act of the agent sending us a contract, that we did not want, did not sign and certainly did not need constitutes the legitimate issuing of a valid contract. If you extrapolate the adjudicator's decision you end up in the absurd position where the agent can post contracts as and when they please, for example every month, and adjudicator would uphold a claim for potentially the whole of the deposit! I would like to see the renewal fee returned, and the adjudicator reminded of the law surrounding residential tenancies. I would also like to see the Agent reprimanded and reminded that, just because they want to form a contract, doesn't give them the right to force one on an unwilling party."

I have to argue the point 'in law', and this is my best attempt so far.

Does anyone have any suggestions as to how I can improve it?

clutton_2

i think its too emotional and personal. Your appeal has to be based on the evidence. If you sent in documents for the original hearing, you need to refer to them precisely, as it is obvious that the adjudicator did not read them properly first time. Exactly what evidence did you submit ?

The "if you extrapolate" sentence really has no bearing on your case. You need to be arguing from the legal basis not on What Ifs ?

"" adjudicator reminded of the law surrounding residential tenancies"" - not your business to tell them to do that.

""The Agent understood that this was the basis for us declining the renewal contract"" - what evidence did you present at the original hearing to show that... refer to it if there was such evidence.

""but replied that it wasn't our decision to refuse such a contract." - refer to the evidence presented at the earlier hearing

You are not in a position to be able to ask for an agent reprimand .. this is a legal submission you are writing. keep it clinical and matter of fact.

"" the act of the agent sending us a contract, that we did not want, did not sign, and certainly did not need, DOES NOT constitutes the legitimate issuing of a valid contract" - this is the crux of your argument.
have another go