A leading law firm has said a landlord’s details should be included on Prescribed Information, even where the agent is fully managing the property, to avoid any possible legal problems with tenancy deposits.
Linda Howard, of Shoosmiths, warned that different judges could place different interpretations on the wording of requirements.
Howard was making her views known after the report on Letting Agent Today about a possession order being overturned because the Prescribed Information gave the agent’s name.
She said: “The Housing (Tenancy Deposits) (Prescribed Information) Order (2007) seems to make it clear, at 2, (g) (iii) that the name, address, telephone number and any email address or fax number of the landlord, not the agent, must be given.”
She said that at another case in the county court, a duty solicitor raised exactly the point of an agent’s rather than the landlord’s details being given.
The judge adjourned those proceedings because of seeming non-compliance with the Prescribed Information Order.
However, the case went through on the second hearing because the landlord argued that Rules of Agency applied.
Howard said: “The judge accepted this interpretation and argument on that occasion, but I suspect that, if this case had gone before Appeal Court judges, they could find that the agent’s name and address is not sufficient.
“Many agents cannot see why this is necessary when they are fully managing the property, but it would appear that, if the regulations do indeed state that the landlord’s details should be on any Prescribed Information, then that’s what must be done to avoid confusion or misinterpretation.”
She advises agents: “Just to be on the safe side, you should always include the full name, address, telephone number and any email address or fax contact details for the landlord together with contact details for the agent if applicable.”
For Linda Howard’s full opinion on this case, use the link below:
http://tinyurl.com/pynwnjl
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Comments
This isn't news. It's the opinion of one solicitor. Many others will disagree.
The truth of this situation is that no matter what you do, you could always fall victim to an individual judge who interprets something badly.
@Fred
I agree with Carrie 100% think youare being a little neurotic Fred.
The reason Landlords like using agent address is exactly as Carrie says, to hide behind them.
Carrie is also correct s1 L&T 1985 if demanded in writing direct land contact address has to be given for the Landlord within 21 days of receiving the written request.
BUT
Carrie - it doesn't have to be the home address though, the Statute does not specify that as follows:-
1 Disclosure of landlord’s identity.E+W.
(1)If the tenant of premises occupied as a dwelling makes a written request for the landlord’s name and address to;-
(a)any person who demands, or the last person who received, rent payable under the tenancy, or .
(b)any other person for the time being acting as agent for the landlord, in relation to the tenancy, .
that person shall supply the tenant with a written statement of the landlord’s name and address within the period of 21 days beginning with the day on which he receives the request.
Fred, in my opinion the reason why it's not practical to put the landlords details on the PI is that by choosing to use an agent, the landlord wants distance.
if a tenant doesn't like what they're hearing from the agent, the temptation is always to go over the heads of the agent direct the landlord.
Yes, there will always be some minority cases where an agent isn't doing a good job, and going over their heads direct to the landlord may be necessary. However, s1 L&T act 85 allows for tenants to get the contact details of their landlord if the need it.
Providing the landlords details in all cases is a step too far when the majority of agent/tenant/landlord relationships are working just fine with the agent providing exactly what they are contracted to do - work on behalf of the landlord. If the landlord ends up getting hassled by phone calls or texts from the tenant over things that are clearly the responsibility of the agent, then what's the point in having an agent?
A simple yes or no will do
I think I know why agents do not like to put the landlords details in front of a tenant. It is to make sure that the tenants do not give out information that lets the landlord know that they have been scammed.
Several times recently I have had to intervene in the work of contractors and either put a stop to it or modify their remuneration. In one case the agency was on my side all along and the tenant did not have a clue about what the charges were. I like that agent, they are really on my side when it counts. In another case, another agent, the gas safety engineer set about robbing me for unnecessary repairs to non gas parts of the heating system. This let was only a couple of months old so I knew exactly what was going on since I had overhauled the heating system before the let (and yes, I know what I am doing).
In this second case the heating engineer, so the tenant says, told the tenant that he must never contact the landlord directly. The agent promptly denied this! I do not know the truth but the tenant has no reason to make this up.
Zahid
Landlord name should always appear but the address can be that of an agent if fully managed. Obviously not if tenant find only!!
If Landlord is distant from the property I'd always include the address and list agent and their address separately
Don't use c/o in any address - the Courts don't recognise it
Should there be landlord details on the tenancy agreement instead of agent or both landlord and agents details should be there if a property is fully managed by an agency.
@Norfolkandgood
How I wish I had a tenner for every time I have given this advice over the past 7 years. Quote what you like in Court but if it is not the LAW it won't do you much good!!
NEVER accept what any TDP Scheme says as being correct in terms of the LAW and their interpretation of it - even CLG on whose advice the Scheme opinions is often based.
Only a Court can decide, and they (especially CoA and Supreme Court) base their decisions on analytical dissection of what the Law states. They then decide interpretation based on the facts beofr them - often narrow to the point of uniqueness as with Johnson v Old.
To help here is what the relevant Statute and authority states as quoted in a Painsmith blog on the matter 29th June.
The Housing Order 2007 sets out what information is needed for the purposes of the Housing Act 2004.
Chapter 4 of the The Housing Act 2004 deals with tenancy deposit schemes. Section 212 part 9 of the Housing Act provides that "In this Chapter [ i.e. Chapter 4] - (a) references to a landlord or landlords in relation to any shorthold tenancy include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies……".
So, for the purposes of s213, the obligations on the landlord are also onto a person or persons acting on his or their behalf i.e. his agent. The Housing Order prescribes what information must be given for the purposes of compliance with s213.
In our view "landlord" for the purposes of the Housing Order 2007 should share the definition with the primary legislation i.e. the Housing Act 2004. It is not logical to interpret the Housing Order 2007 in a way that is incompatible with its parent legislation.
It follows that in our view the deposit schemes are correct to allow the agent to sign.
Seems plain enough to me and doesn't need any Scheme interpretation just a Judge that can follow what the statute allows!!
Not according to MyDeposits the GOVERNMENT scheme.This states that you provide the details unless protected by the agent. The scheme holds the Landlords details but chooses not to put them on the certificate. Why does the Government scheme state this. I would quote this in Court. They can't have it all ways.
It isn't so much Rules of Agency as the provisions contained within the 2004 Act that allow for this. It is permitted in the primary legislation and that is held to apply to subsidiary matters such as Statutory Instruments.
g(iii) DOES NOT say not the agent, it just refers to the Landlord. But the other provisions then cover it.
The real problem here is if it was the TDS template PI that was used the TDS version doesn't state Landlord's name, thus enabling the agent details to be given as per the Statute itself. The TDS form asks for details of the deposit holder.
That may well be the agent of course, as in this still anonymous case, but the wrong question was asked, so the ability to put the agent details in response to a request for Landlord details was lost.
The point has been raised in several other CC cases and the legal protocol correctly applied. As is often the case depends which CC Judge you got. As it happens here on the local appeal the Landlord won, but for the wrong reasoning.
Not general Rules of Agency and the LL and Agent legally being the same person, but that the Statute permits the use of details of a person acting for the Landlord.
If the case went to CoA my guess is that they would confirm agent details could be given - but the form must state and ask initially for those of the Landlord as directed by the SI.