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Stuart J
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19887
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Question 1; As a landlord if you have a contract with an agency

Customer Question

Question 1; As a landlord if you have a contract with an agency whereby you pay them a fee to find and reference check tenants and the agency makes a severe mistake in that service. How do you equate damages?

i.e. how much of the fee paid can be set aside for damages?

In terms of losses to myself as the landlord had to engage a solicitor for the purposes of dealing with the issues that arose from the tenants which was due to them being incorrectly placed in the property. Along with time, and discomfort, pain and suffering etc.

How do you then apportion this into damages against the agency? Punitive and non- Punitive.

Question 2; Can a claimant send a Part 18 Request for information to the defendant pre-trial?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Stuart J replied 1 year ago.


Hello, I am Law Denning and I am a practising solicitor in a High
Street practice. I have been an expert on this website in UK law since 2008.
During that time, as you appreciate, I have answered thousands of questions
from satisfied users on a variety of subjects.

Because we are all in practice with clients and court and other
users, I might not always respond in
minutes
, particularly evenings and weekends. Please bear with me in that
case



It is my pleasure to try and assist you with this today. Please bear with me
while I gather some further information from you in order for me to be able to
advise you fully.





Unless I have all the facts that I need, my answer
would not be accurate.




Does the agent admit the failings?

 

How much has this cost the landlord?

 

English law does not award punitive damages, that only happens in the US.

 

What further info does the LL require.

 

We need full detailed background please

Customer: replied 1 year ago.

Does the agent admit the failings?


 


Yes but only as a "mistake" or "administrative error" - the rent was lowered on the referencing forms so the tenants passed the test otherwise they would not have.


 


How much has this cost the landlord?


 


This is the crux of the question. Its hard to quantify. The tenants became a big problem. Didn't pay utilities etc. which caused a lot of time on my behalf to manage the situation and I had to engage and pay a solicitor to deal with the tenants. I guess you could there was indirect loss because of the failings of the agent.


 


The question is that I'm taking the agent to small claims (after exhausting their complaints procedure) and I believe I'm entitled to compensation for the agents failings. But its hard to quantify the direct loss. But I believe that the agent should compensate for their failure (goods and services act and breach of contract). They did not deliver what I paid them to do.


 


How do I asses the damages as the small claims wants me quantify?


 


Currently I've listed the total of the agency fee. But understand that I may not be entitiled to all of this. But I do believe they I should get some of it back.


 


Any assistance would be greatly appreciated.


 


 

Expert:  Stuart J replied 1 year ago.


This might get moved out of
the Small Claims Court because there are evidential issues and it is not for a
fixed sum of money.

At this stage you will also
need to come up with the quantum of loss. Unless you can show some loss, then
you have no claim.



I think their administrative
error is a breach of contract.



I think you can recover the
solicitors costs.



You can recover any court
costs.



You can recover anything else
that you can directly quantify.



I think you will struggle to
recover anything in respect of inconvenience of them being the general pain in
the backside.



You could recover any unpaid
rent.



 



Does that answer the
question?

Customer: replied 1 year ago.
It does thank-you.

When you say 'unpaid rent' - do you mean rent the tenants haven't paid or because I had to remove the tenats and incurred loss as the same agnet could then not find another tenant and I then removed the agent.

I had 3 months lost rent.
Expert:  Stuart J replied 1 year ago.

Only if you can satisfy the court that the agents failing caused the rent loss. I think poor referencing is enough.

If you had other agents fees, add those in. If in doubt, list everything (without being daft about it) and let judge disallow ones he doesn't like

Customer: replied 1 year ago.
Makes sense. Thank-you. I'll add in one month lost rent and the other agents fees - creation of lease etc. It's not a great sum of money and will be prudent in my approach.

Last question; can I send a Part. 18 request for information to the defendant?

Thanks again.
Expert:  Stuart J replied 1 year ago.
What info do you want from him?
Customer: replied 1 year ago.
In their defence document they claim that the employee whom made the 'error' was aware or the mistake. At the time o the referencing I was confused by what they presented. So I asked the question - "what am I missing? Is this correct?" The employee said "yes and went on to talk about a bonus not listed on the report that the tenants were apparently would receive once per year" this implying they were good candidates for tenacy.

It wasn't until all the problems arose that my solicitor picked up the error and suggested I make the claim to the small clams court.

I didn't want to incur further expense so I'm taking action upon myself.

My concern that even when I was confused the agent didn't pick up the error or try to remediate it at the time - ie they had an opportunity to correct the mistake and conduct the referencing again but failed to do so.

I would like them to provide a 'statement of truth' from the employee that she was aware of the mistake like they claim.

The agent also claims that because I proceeded with the tenacy I was "aware" of the error and processed anyway. I want them to demonstrate where I acknowledge the error.

Or should this wait for trial?
Expert:  Stuart J replied 1 year ago.


So it appears that the "bonus"
was included in the salary although it begs the question as to how an annual
bonus allows them to pay the rent every month over the 12 month period!

You can request a statement
from the employee and to be admissible in court it has to contain a statement
of truth in any event. Ask for it.



 



The latter point is a matter
for the trial although you can ask for it now

Customer: replied 1 year ago.
Well I think the "bonus" was more an inducement for me to move forward.

It wasn't listed anywhere. It was only stated when I asked the question.

The failing was lowering the actual rent so the annual salary would pass the test.

To me it almost borders on fraud but I won't go there!
Expert:  Stuart J replied 1 year ago.

I agree with you completely.

The thing is that the bonus reflects salary, not rent. If it is a bonus, it should be stated as such.

I don't think lowering rent is a failing...I think it blatant misconduct..yes, bordering on fraud

Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19887
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and other UK Property Law Specialists are ready to help you
Customer: replied 1 year ago.
Agreed.

Thanks for everything.

Take care.
Customer: replied 1 year ago.

Sorry one last question on the same topic;

 

If the contract between myself and the agent states the following:

 

"Wherever appropriate, references on prospective Tenants

will be obtained."

 

- Could it be argued that this is a breach by the agent as "references" were never actually provided? ie that because the references were false due to the the "mistake" from the agent meaning the references weren't delivered as per the contract?

Expert:  Stuart J replied 1 year ago.
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Customer: replied 1 year ago.
Thanks! :)
Expert:  Stuart J replied 1 year ago.
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