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Small claim process should it be letting agent or landlord?

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413 views 1 replies latest reply: 17 January 2017
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Tenant

We recently had a number of issues on trying to vacate my rented property and we have been advised that the situation has justification to be resolved through the small claims system. However we are just trying to seek clarification on whether the claim should be against the letting agent or the landlord.

Brief summary. We are in a situation where there has been a breach of Section 48 of the Landlord and Tenants Act 1987. The landlord lives overseas but, as per the regulation, (para 1 – A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.neither the letting agent nor the landlord provided us with an address in England or Wales for the landlord. However, not knowing that para 2 states – “Where a landlord of any such premises fails to comply with subsection (1), any rent or service charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection” we continued to pay rent when requested to do so by the letting agent.

Due to many other problems we have had with both the letting agent and now the landlord, we have reached the end of our tether and have made the desicion to pursue recover of the rent we paid during this period through the small claims court. However, I am not sure who this sould be directed to. The letting agent for incorrectly requesting the rent payments or the landlord? If it’s the landlord where we stand with the fact that he is based overseas?

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Tenant

Hello, 

Usually, it’s the landlord who gets sued. Letting agent are something of an employee to the landlord and unless the agent theirself did something wrong, without the landlord’s knowledge or approval, then all claims should be directed to the landlord. 

In your case, it’s extra hard since the landlord is abroad and it’s going to be difficult taking them to court when no physically in the UK.

However, I think you’re misunderstanding what this law means: 

This is the law you mentioned: http://www.legislation.gov.uk/ukpga/1987/31/part/VI

48 Notification by landlord of address for service of notices.

(1)A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.

(2)Where a landlord of any such premises fails to comply with subsection (1), any rent or service charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.

I think that (2) means that the landlord cannot demand rent payments until this information is provided to the tenants. Thus you can effectively refuse to pay rent until you have an address at which you can direct letters and notices to your landlord. 

However, since there is a letting agent AND the landlord is not in England or Wales, the address at which you should direct notices is the one of the letting agent.

Furthermore, (2) doesn’t mention that the tenant is being absolved from paying rent, just that they must be first provided with an address to use. 

 

In any case, I’m not a lawyer or a legal professional, so I might be getting all of this wrong. 

However, in the entire time I’ve been working with renters and renting, I’ve not heard of one case where a tenant got their rent back for the entire period back. More so for such a claim as not have been served with an address of the landlord. 

Don’t get me wrong. The landlord has probably breached this rule and you certainly have a right to get your landlord’s address and name. However, I’m not at all sure that you can recover your rent payments back just hanging on this breach. 

Court action is expensive and if you get it wrong, nobody is going to refund you the legal fees. In ANY CASE, please consult a real solicitor before you proceed to court action. 

Check out our latest blog, featuring a collection of tenant resources, many of them being legal advisors and solicitors. http://www.thetenantsvoice.co.uk/your_home/tenant-resources/

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