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Common problems

This content applies to England

Common problems that can occur when using agencies and advice on appropriate courses of action.

Using letting agencies can present a number of problems when looking for accommodation, at the start of, or during a tenancy. Problems often arise where landlords leave the day-to-day management of the tenancy to the agent without making clear the extent to which the agent can act on behalf of the landlord.

Name and address of landlord

A prospective tenant should be advised to obtain the name and address of the landlord even if s/he will only be dealing with the agency for the duration of the tenancy. This could be important if there are disputes concerning the deposit or repairs. If the tenant pays rent through the agency or deals with an agency acting on behalf of the landlord, the agency has a duty to provide the landlord's details in writing within 21 days of it being requested.[1]

An agency that fails, without a reasonable excuse, to supply the information will be guilty of a criminal offence punishable by a fine. Where the landlord is a company, a further request should lead to the disclosure of the name and address of every director and the secretary of the landlord company.[2]

Local authorities have the power to prosecute agents for this offence. Clients should contact the local authority's tenancy relations officer, if there is one, or its legal department.

Tenancy agreement signed by agency

The tenancy agreement should be signed by both the tenant and the landlord. Some prospective tenants sign agreements in good faith believing the agency to be the landlord but, in fact, that agent is acting on behalf of the landlord. In these cases the agency will itself be liable under the tenancy agreement so that in the event of a dispute the tenant may sue the agency as if it were the landlord.

However, an agency can be authorised by the landlord to sign the tenancy agreement on her/his behalf . Although the tenancy agreement must state it is an agreement between the landlord and the tenant. Clients should be advised to obtain the name and address of the landlord even if s/he will only be dealing with the agency for the duration of the tenancy (see above).

Tenancy granted without authority

Sometimes an agency may act without the authority of the landlord, either deliberately or accidentally. In these cases, the landlord will not be liable for the agent's actions. For example, tenants may move into rented accommodation arranged via an agency and then shortly after be confronted by the landlord ordering them out of the property on the basis that the tenancy agreement signed with the agent was not signed with the landlord's authority and the landlord had no intention of granting a tenancy to that particular tenant.

If the agency only had permission to identify a prospective tenant, but subsequently arranged the tenancy without the agreement of the landlord, then the landlord will not be bound by the contract entered into by the agent. The tenants could be forced to leave as they would in fact be trespassers (see the section on Squatters for more information). If this happens, the tenant could argue that s/he had been misled into believing that the agency was acting on behalf of the landlord, thus giving the tenant the right to seek damages against the agency.[3] The damages could cover the value of the tenancy lost - which may be the length of time that the tenant would have been expected to live in the property - and general damages for the distress and inconvenience.

In some cases, the tenant may be able to negotiate with the landlord to agree a new tenancy, although the rent, terms and conditions would not necessarily be the same.

Unfair terms or unfair business practice

Under the Unfair Terms in Consumer Contracts Regulations 1999[4] and the Consumer Protection from Unfair Trading Regulations 2008[5] enforcement action may be taken against those running a business which is detrimental and unfair to consumers. The government has published guidance for lettings professionals to help them understand their responsibilities under consumer and business protection legislation when letting out domestic property.[6]

For more information see Unfair terms and consumer law

Agencies can also be prosecuted under the Trade Description Act 1968 if they make a false statement about the accommodation or its facilities.[7] However, prosecutions are rare and the agency may be able to argue that it was acting on the instructions of the landlord.

Disrepair

In most cases, the landlord is ultimately responsible for tackling disrepair. However, agencies that provide management services (most letting agencies) will often have authority to arrange for repairs to be carried out. Tenants who have little or no contact with the actual landlord should contact the agency to request a repair in the first instance. If the property is a flat and the landlord is a leaseholder, the freeholder may be responsible for repairs to common parts.

If the agency (or landlord) fails to carry out repairs within a reasonable time, the tenant can take court action to gain financial compensation (damages) for the inconvenience of living with the disrepair and an order from the court requiring the landlord to carry out the repair.

For problems relating to disrepair, see the section on Housing conditions; for more information about taking a case to court, see the section on Courts and legal action.

Tenancy deposits and rent in advance

Most agencies acting on behalf of a landlord will require payment of a tenancy deposit and rent in advance. In many cases, letting agencies will take the deposit on behalf of the landlord and arrange for it to be protected in a tenancy deposit protection scheme. Clients should always be advised to get a receipt for any amount paid to the landlord or an agency.

The amount of rent in advance and/or deposit required can vary depending on the type of tenancy. From 1 June 2019, it is unlawful to ask for a tenancy deposit equivalent to more than five or six weeks’ rent (the cap depends on the total annual rent) in connection with assured shorthold tenancies and licences in the private sector.[8] For more information see Tenant fees: overview.

From 6 April 2007, tenancy deposits taken for assured shorthold tenancies must be protected in a government-approved scheme.

Disputes over inventories

The agency will normally compile an inventory of the contents of the property at the start of a tenancy. The cost of any listed items that are damaged or lost during the tenancy could be deducted from the deposit at the end of the tenancy. Prospective tenants should therefore always check that the inventory is accurate and that any damaged item is included with a description of its condition. If the agency does not provide an inventory, the client should compile one her/himself and have it signed by an independent witness - see the page on Inventories for more information on these.

Harassment and illegal eviction

An agent acting on behalf of the landlord can be found guilty of criminal harassment and/or illegal eviction (also called unlawful eviction). Illegal eviction occurs when a tenant is unlawfully deprived of all or part of their residence.[9] The eviction could be by force or by changing the locks while the tenant is out. Actions such as locking a toilet door or blocking access to a part of the accommodation that the tenant has the right to occupy would also constitute illegal eviction. Clients should be advised to contact the local authority tenancy relations officer or legal department if they believe they have been illegal evicted. For more information, see the section on Harassment and illegal eviction.

Discrimination

An agent when letting or managing premises must not unlawfully discriminate against any person on the basis of any of her/his disability, race, sex, sexual orientation, gender reassignment, pregnancy or maternity, religion or beliefs. For information about provisions of the Equality Act 2010 that prohibit discrimination when renting or managing residential accommodation see the page Discrimination in relation to premises.

Complaints against lettings and property management agencies

Most letting and property management agents must belong to a government approved redress scheme which can provide an independent investigation of any complaint against its members. Where problems arise that are not resolved by the agency, a complaint can be made to the redress scheme that it belongs to - see the page on Complaints against agencies: Redress schemes for more details.

[1] s.1 Landlord and Tenant Act 1985.

[2] s.2 Landlord and Tenant Act 1985.

[3] Starkey v Bank of England [1983] AC 114.

[4] Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083.

[5] Consumer Protection from Unfair Trading Regulations 2008 SI 2008/1277.

[6] Consumer Protection Law for Lettings Professionals: CMA 31, Competition and Markets Authority, June 2014.

[7] s.14 Trade Descriptions Act 1968.

[8] para 2, Sch.1 Tenant Fees Act 2019.

[9] s.1(2) Protection from Eviction Act 1977.

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