My partner's house has been let without his knowledge or consent-ombudsman won't help

kate199164

Hi, I wonder if anybody can help.

In November last year my partner found out that his estranged wife (they're in the process of divorcing) had let out their house without his knowledge or consent, knowing full well he wanted to sell. She's had the money from the tenants going directly into her personal bank account to cover up and keep my partner in the dark as she knew she what she was doing was dodgy- she is a Letting Agent by trade as well by the way.

My partner found out when he passed the house and found the lights on and could see that it was being lived in. When challenged, she admitted she had let the house. He asked for a copy of the Tenancy Agreement but she would only give him a partially completed unsigned draft. He then went to the Estate Agency she works for, asked for a full, signed copy and a copy of their complaints procedure. The signed agreement listed her employer as the Agency and was signed by one of their agents 'on behalf of the landlord' . She had listed herself as the sole landlord with 'written permission' to let the property from 'all necessary parties'.

My partner complained to the Agency as he had not been receiving any of the money from the let- which the contract stated was being handled by the agency, and the contract banned him from accessing his property while it was occupied by the tenants. The agency replied and the woman who signed the contract as the agent said the agency had not acted as the agent and that it was an independent let and his former partner had simply used a template that they had loaned her and they had given her access to their marketing tools 'as a valued employee'. They also said it was clear to them that he was trying to embroil them in personal dispute and bring them into disrepute. He sought advice from his divorce solicitor who recommended he complain again, but more of the same returned- personal remarks about the situation with his ex, lies and denial. They refused to admit they had ever handled anything with the house including the money and deposit. The contract includes a statement saying that the deposit it held by the agent under the deposit protection scheme, so they are either lying to him or have lied to the Tenants. They also refused to put in writing that they would not lease his property again without his consent.

With no other choice he took it to the Ombudsman, and sent copies of the Tenancy Agreement, pointed out all the areas of the contract where the agent had signed AS the agent, (they signed two different areas- one as a witness to the contract and one where they take authority as the agent on behalf of the landlord- in the case of the agreement they are both the agent and one of two witnesses) and all the areas where the contract acknowledges the agency as the agent for the letting. He also sent off the rude and unprofessional letters they had sent him as proof of how they had responded- or not responded as the case may be- to his complaints.

Unbelievably, he received a verdict from the Ombudsman in THEIR favour. The Ombudsman said that they Agency hadn't provided an Agency Agreement between his ex and the agency so there was no proof. He failed to acknowledge that they signed the Tenancy Agreement- a legally binding document AS THE AGENT and said that the Tenancy alone isn't proof necessarily as it is a contract between the Landlord and the tenants! He also said that them siging as witness wasn't them acknowledging themselves as the agent as they hadn't signed anything saying that they were the letting agent- on the same page that he's talking about, they have signed a clause saying exactly that!! And he ignored it! My partner was told that he either has to accept what they say or he has 28 days t provide new evidence- when they have ignored the very clear evidence that he sent them the first time?!

I'm sorry about the length and complexity of this, but we could really use some advice. We've taken it all the way and it looks like they're not going to help even though we've proved what needed to be proved. The ombudsman has totally ignored several key pieces of the evidence which would totally contradict what he has said in his findings, but is demanding new evidence?! He has all of the evidence already- he hasn't used it! What more proof could be needed when the agency have signed that legally binding document, listing themselves as the agent for the letting and acknowledging their authority to sign the document on behalf of the landlord?! The Tenancy Agreement is a legal document- surely this is proof enough? If they had nothing to do with the letting then why have they signed as the agent? Why dd they have a copy of the signed Tenancy Agreement on file? Its insanity, we cannot believe all of this has been ignored by the ombudsman.

Does anybody have any advice? Can we take them to small claims? What else can we do? There is nothing to stop them from doing it again as the Ombudsman has basically told them what they've done is OK! Any help would be really appreciated, we're at a total loss.

x

xylophone

Is the house mortgaged?

Have you shown the Ombudsman's letter to your solicitor?

GwylimT

How does the tenancy agreement stop you accessing your property? Well him accessing his property.

Also, where rent is concerned there is an assumed 50/50 split when married couples own the home, so there is a possibility he owes tax.

G_M

1) Can he quantify his losses financially? eg
* his share of rent income
* losses due to inability to sell: eg interest on £30,000, being 50% of the equity in the property for example
* other losses

He sues his ex for those losses.

2) IS there equity in the property? Going to mortgage provided (if any) could result in them taking action for breach of mortgage terms, but this could rebound on him. Mortgage repayments could increase due to lack of CTL. Who is paying the mortgage? Hime? Ex? Both? Repossession is a possibility (less likely, esp if repayments are being kept up).

3) Is Ex declaring the rent as income to HMRC? If not, report her! (HMRC here)

4) I suspect (not sure) there is no appeal to an ombudsman decision, so not much you can do there.

5) Check the deposit IS registered, and if so, in whose name (Ex or the agent). If you can't check yourself, a frinedly knock on the door and ask the tenants to check

6) Ultimately this needs to be sorted as part of the divorce settlement. So when they divvy up joint assets, include the income from the property that she's received (do you know what the rent is?), and demand she pay X% (50%) of the equity of the property - after all, SHE has made it impossible to sell, SHE is getting the income, so SHE should buy out his share and keep the property.

Long chat with divorce lawyer needed!!

G_M

GwylimT wrote: »

How does the tenancy agreement stop you accessing your property? Well him accessing his property.

.

The tenats will have exclusive occupation as part of their tenancy contract. So they can stop him accessing.

Harsh, but none of this is the tenants' fault.

GwylimT

G_M wrote: »

The tenats will have exclusive occupation as part of their tenancy contract. So they can stop him accessing.

Harsh, but none of this is the tenants' fault.

Which he hasn't had any part of, so he is entitled to access his home.

kate199164

Which he hasn't had any part of, so he is entitled to access his home.

Unfortunately not- the solicitor who looked it over confirmed that as it is not the tenants' fault, the contract works in their favour and the terms are binding- including their right to stop him accessing.

G_M

GwylimT wrote: »

Which he hasn't had any part of, so he is entitled to access his home.

The landlord (a joint owner of the property) has granted a tenancy.

The tenants have exclusive occupation.

Any dispute between the 2 joint owners is separate and does not affect the rights of the tenants.

If he were to attempt to force access, or otherwise harass the tenants, and they came here for advice, we would all be advising them to use both criminal and civil law in actions against him.

http://www.legislation.gov.uk/ukpga/1977/43

http://www.legislation.gov.uk/ukpga/1988/50/part/I/chapter/IV

https://www.gov.uk/government/publications/my-landlord-wants-me-out-protection-against-harassment-and-illegal-eviction

kate199164

In answer to a few of the above questions:

1. The house is mortgaged but not on a buy to let agreement. He thought about alerting the mortgage lender but this would backfire on him too.

2. The mortgage was being paid out of a joint account that they both put their half into each month. This was until she changed the mortgage over to her personal account without his knowledge in order to hide what she was doing- the bank said that they didn't need his permission to change the account as they can do it with permission from only one of them. She told him she had let the house as he was refusing to pay the mortgage, which as untrue, as she then told him that she knew the money was waiting in the joint account. He immediately took t out so she couldn't access it. The mortgage has been being paid but the rent is over £100 more than the mortgage, and she has been helping herself to the rest. That's if she hasn't changed the mortgage to a lower payment amount or taken a permitted payment break, which she is also apparently allowed to do. Either way, she had been pocketing at least £100 excess a month- she insists this covers the home insurance, which is nowhere near that amount. (Their insurance also does not cover tenant occupation so if the house burned down, my partner would lose everything).

3. The main complaint to the ombudsman, who can only address the behaviour of the letting agency, is that the agency is lying and has breached the code of conduct. They have tried to get out of it saying that my partner is not their client so they can't have done- when the reason he is not a client is because they leased his house without his knowledge or permission! Give that his ex partner is an agent at the same agency and a firm friend of the agent who signed the contract, it is also extremely likely that they knew this too.

4. He attempted to get his 50% from the agency, but they are denying any and all responsibility or knowledge of the contract even though they have signed it by hand and are listed within its contents as the agent who is tasked with dealing with the rental income- it says it in the contract. The agency deny this, and the ombudsman has said that it being in the contract isn't proof of their liability?!

5. He can't prove his exact losses because she won't tell him exactly where the money goes, on what and how much is left over and because all the records are now on her personal bank statement, he isn't allowed access and she won't show him.

6. He is calling his solicitor on Monday to show him the letter and a lengthy letter of reply has gone off to the Ombudsman pointing out the contradictions in the findings compared with the evidence but we don't know what good this will do.

The whole thing has been a nightmare. There is nothing to stop her doing this again, especially now the ombudsman has inexplicably backed them, which could delay the divorce. This situation has so far resulted in nasty letters raising personal issues between him and his ex from the estate agent, who decided it was their place to comment on the state of his marriage after a 'formal meeting' with his ex, and viscous personal attacks on my partner and myself which have resulted from the same agent who signed the contract telling his ex (their employee) lies about the content of a discussion in which she claimed we were trying to get his ex fired and were verbally abusive about her- this is complete fiction. In fact, it was stated in the real conversation that NOBODY wanted her fired as this wasn't the issue but that all he wanted was his half of the money and something in writing saying the agency wouldn't lease the house again. The agency then stirred up trouble with the ex who then unleashed a tirade of abuse from both her and a friend of hers as a result of the conduct of the agent.

This situation is very draining and we don't know what else to do. The money may be petty but its the principle of it- she is stealing from him and getting away with it.

kate199164

This is a comment from the ombudsman findings, names changed:


"It should also be noted that 'Agent A 'has signed the Tenancy Agreement in the capacity of a witness and not as an instructed letting agent. Therefore, 'his/her' signature in this instance also does not confirm any formal instruction of the agency."

This suggests that the agent's signature acknowledging themselves as having the authority as the agent to sign on behalf of the landlord DOES confirm their instruction as the agency. This signature actually appears on the same page as the witness signatures that the Ombudsman describes above (the agent also acted as one of the witnesses, so they have signed two different sections on the same page), but for some reason he has ignored it/ not considered it relevant?! He doesn't acknowledge it at all but by his own logic it would have have confirmed to him their instruction and may have changed the outcome of his findings- it makes no sense.

The agency 100% acted as the agent for the let. Their name is on the contract, they've signed it on behalf of the landlord under a clause clarifying the signature as that of either 'the landlord or the landlord's agent', they had a copy on file at the agency and they're listed as the agent within the terms of the agreement. Its complete madness. Its like ruling the grass is blue when you know and have proved that it is green!

Wilma33

I doubt letting agents are obliged to check who all the owners are and seek each of their permission before they let a property. I would think the person who approaches them just has to sign something to confirm they are the owner and have the permission of any other owners to let the property. So personally I think your issue is with your ex not the letting agency.