My landlord's had his flat repossessed and I have been forced to move out in the next 28 days midway through my AST agreement.

Has anyone been in this situation and sued the landlord for breach of contract? I think it would be pretty sure to succeed in a small claims court, although whether the landlord has any assets is another matter.

Has anyone also sued the letting agency for negligence. My landlord didn't even have a BTL mortgage, so the tenancy should not have been drawn up in the first place. I suppose this wouldn't come under contract law as the contract would be between landlord and agency. *However*, when I mentioned the agency to the judge eyebrows were raised which made me think that a court wouldn't look too favourably on the agency should I take action against them. It's a shame they're not in ARLA. Perhaps I should write to them to demand a refund of my letting application fee?

I've had a good year financially and my legal expenses funds are bouyant, so on behalf of everyone here who's ever been ripped off by a landlord and/or agency I'd like to get one back.

Was your AST actually with the letting agent or the LL? Given that you paid the letting agent, I'm sure there must be an implied contract with them whether one exists on paper or not, but if your actual AST is signed with the agency, I'd guess that suing them would be more straightforward. I'd further guess that you're more likely to see any money by suing the agent than the LL, given that the latter's finances can't exactly be healthy, as he's just been repo-ed.

If it were me, I'd start by writing to the letting agent asking for reimbursement of all their fees in relation to the place you're about to leave, plus your moving expenses, plus compensation for your time at whatever is your normal rate of pay per hour. If they tell you to sod off (or just don't reply at all), tell them that you consider their actions in arranging a tenancy with an LL who wasn't legally entitled to rent you the property (because he didn't have a BTL mortgage), as negligence, and intend to take legal action accordingly.

If I remember correctly, then to prove negligence you need to show that (i) the defendant owed a duty of care to the plaintiff [in this case, the agent taking all reasonable steps to ensure that the LL was able to keep his side of the bargain], (ii) that the duty of care was breached [they failed to check that he had a kosher BTL mortgage] and (iii) that damage occurred as a result [you were evicted]. On the face of it, this looks like a goer - but of course, I'm not a lawyer.

Do you have a legal advice helpline on your contents insurance? If so, it might be worth giving them a bell.

Whether or not the agent holds the deposit, your contract is with the landlord so they need to be sued for 'loss of quiet enjoyment' if you want to take anyone to court. You have no claim for the agent, they are, after all, the agent of the Landlord, not you. (I'm not saying this is fair, just as it is in law)

Also, I assume you've been to court to hear the court grant something like 'possession in 28 days'?

If so then remember there are two steps in home repossession, firstly, gaining possession, or repossession as we see it, and secondly, eviction, if necessary.

So after the 28 days, you are perfectly at liberty to stay in the property; the mortgage company have been granted possession, not the right to evict anyone in there, yet.

Then, since the AST you signed wasn't worth the paper it was written on - you Stop Paying Your Rent, if you still are. (Please tell me you've already stopped paying) Any claim the landlord or agent makes for this would be counter-claimed by the loss of quiet enjoyment and the no-doubt loss of your deposit. It won't happen.

Also, as a matter of urgency, you MUST, repeat MUST, absolutely MUST write to the Solicitors of the mortgage company to advise them you are IN the property. It doesn't matter whether the duty solicitor has taken your details - Write To Them Direct. Since you knew of the hearing you must have some ref nos, get your details on that file pronto.

Then, assuming the mortgage was NOT a BTL, ie a liar-BTL OE mortgage their solicitors will then need to apply for an eviction warrant which will need to be hand delivered through the letter-box of the property. Then and only then would you know you have xx days to be out before the bailiff comes round and the locks are changed etc.

What this means at a practical level is until the mortgage coys solicitors write out to your local county court to request and eviction warrant be issued there's nothing else to do. So if you want to stack up as much cash as you can for your next rental, go ahead.

On a practical level, if you were unemployed and wanted to be rehoused by the council, leaving before an Eviction Warrant was issued with less than 28 days to run would count as making yourself voluntarily homeless and you would be at the bottom of the queue. However, the sols of the mort coy won't tell you that since they want you out as quickly and as cheaply as possible.

However, if the mortgage was a BTL, then the mort coy would need to let the AST run until expiry and then give notice. You would also need to remit your rent to them as well.

And as regards checking the next time, there's not much you can do. A £3.00 land reg report will reveal any charges on the property, but not the type. What you might intuit from the date of the charge is whether the 'landlord' might have too high a mortgage to service and therefore you may end up in the same situation again.

So in summary:
1. sue the landlord if you want (probably a waste of time)
2. stack up all the money you were paying as rent to use for the next home (2-5 months extra cash)
3. tell the sols you are there
4. pull a land reg on the next property
5. oh, and I'd also change the locks until you leave, 'just in case'

Then sit tight, and wait it out.

PS the 'good news' is every month that goes by the arrears are increasing on the landlords a/c

But what about all those fees the agent takes from the tenant at the beginning of the tenancy. Surely in taking those fees, the agent has a duty of care to the tenant to ensure the agreement being drawn up is lawful? It would be interesting to see if you can claim those fees back.

Good question, however, it's a case of small fees vs cost and time.

The agent will always claim 'they were acting upon instructions rec'd' or, ' ... but he told us ...' etc

You'll grow a quicker cash pile by not having a rent to pay.

Agreed you'll not have a reference, but how could you, the guy wasn't a landlord anyhow.

I thought the whole point of the Small Claims Court procedure was to minimise the cost and time involved in bringing the action in cases where the amount of money involved is relatively small.

True, but because the agent was acting for the landlord then perhaps the who you sue issue for fees becomes complex.

Either way, it won't be quick to collect; first letter, letter before legal, apply for hearing, set date, then if they put up defense (whatever that would be) review, then win (perhaps)

After win, then there's enforcing ... unless the agent goes bankrupt or simply closes up before you get the chance to get your payment.

It all takes time.

Thanks for all your comments. Here are some more details:

Letting agencies are very careful to say that the contract is with the landlord, except when it suit them. In this case it was a tenant finding service only, not fully managed. I only paid about 120 quid to the agency to arrange the tenancy, so it's not worth bothering to sue them for this amount. If it was fully managed then I might have sued them, but it's less guaranteed to succeed than suing the landlord, and I don't want to be blacklisted by all the agents in town.

I stopped my rental payments as soon as I got the solicitor's letter about the court hearing, so I'm up by several hundred quid already. I've not paid bills since I've moved in either, and now the tenancy is invalid the landlord's going to have a hard time getting the money out of me for those.

The mortgage company know I'm in the property. I've got at least 28 days there, and probably another two weeks after that. As I have found a new property I didn't bother to ask the judge to give me more time. Oddly enough the new place has the same non-household name mortgage company as the old place - I think I'll be phoning them up to see if the new landlord is above board, but I'm not sure if they'll be able to tell me anything.

The funny thing is the landlord phoned me yesterday asking where the rent was, it was a bit odd my having to break the news that the flat was repossessed! He was insistent the mortgage was a BTL, but I think I'll believe the mortgage company thankyou very much.

I hope the landlord doesn't try anything silly over the Christmas. I don't really want to pay to get the locks changed, but I'm insuranced to the hilt should anything happen.

I think the deposit return is going to take a long time - the tenancy deposit service seems to be staffed by robots rather than actual people.

I might sue the landlord, but as I'm self employed, it's a question of whether its the best use of my time.

Incidentally, when a repossession order is granted, at what stage does the owner of the property revert to the lender? Can the landlord appeal?

'DrGUID' date='Dec 21 2007, 09:45 AM' post='899270']

Hi again I'd comment as follows:

Letting agencies are very careful to say that the contract is with the landlord, except when it suit them. In this case it was a tenant finding service only, not fully managed. I only paid about 120 quid to the agency to arrange the tenancy, so it's not worth bothering to sue them for this amount. If it was fully managed then I might have sued them, but it's less guaranteed to succeed than suing the landlord, and I don't want to be blacklisted by all the agents in town.
A: Yes, leave it alone as it's not cost-time effective.

I stopped my rental payments as soon as I got the solicitor's letter about the court hearing, so I'm up by several hundred quid already. I've not paid bills since I've moved in either, and now the tenancy is invalid the landlord's going to have a hard time getting the money out of me for those.
A: Good move too

The mortgage company know I'm in the property. I've got at least 28 days there, and probably another two weeks after that. As I have found a new property I didn't bother to ask the judge to give me more time. Oddly enough the new place has the same non-household name mortgage company as the old place - I think I'll be phoning them up to see if the new landlord is above board, but I'm not sure if they'll be able to tell me anything.
A: You will probably have longer than that, so you might not want to commence any new AST until later. This is because the mort coys sols have to write to your local county court to request the bailiffs issue an eviction notice. This is a cost that the mort coy may defer from spending. Until they request the sols to do it, this won't happen. When it does, and they write to your court, this will be one of the VERY MANY evictions the few bailiffs they have will need to carry out. So they need to schedule into their diaries firstly the hand-delivery of the 28 day notice and secondly, more importantly, the actual eviction date.

Because of the Xmas slowdown for everything legal, the timescale you identified above could easily be extended, by 1-2 months (yes, honestly!) Why pay for a new AST when you've got one for free!

Technically, you are trespassing so the mort coy sols could try to sue you for the costs if they have to evict you, but I don't think that's worth worrying about since and that cost would be way below any rent saved by waiting for the eviction to occur.

The funny thing is the landlord phoned me yesterday asking where the rent was, it was a bit odd my having to break the news that the flat was repossessed! He was insistent the mortgage was a BTL, but I think I'll believe the mortgage company thankyou very much.
A: He has no rights to collect the cash. Period.

I hope the landlord doesn't try anything silly over the Christmas. I don't really want to pay to get the locks changed, but I'm insuranced to the hilt should anything happen.
A: This is sooo easy, getting a locksmith is a waste of cash. Remove the lock assembly from the door (screws in easily) then you can remove the barrell. That's a £10-£30 item to replace. Take it with you to put in your next home. If you've got someone that can house sit, you can take the barrell from the door to a locksmith company and they will give you a straight match. Somewhere like www.screwfix.co.uk have a lot of examples an prices.

I think the deposit return is going to take a long time - the tenancy deposit service seems to be staffed by robots rather than actual people.
A: Can't comment, too new for me to have dealt with.

I might sue the landlord, but as I'm self employed, it's a question of whether its the best use of my time.
A: He would probably counterclaim your loss of quiet enjoyment was offset by the free rent you've enjoyed, so possibly a waste of time.

Incidentally, when a repossession order is granted, at what stage does the owner of the property revert to the lender? Can the landlord appeal?
A: if possession was granted in 28 days, then on the 28th day the onwership reverts, however, the liability to pay the debt still rests with the landlord. He can only appeal by paying his arrears or offering a payment schedule, but since he didn't bother to turn up, I don't imagine that will happen. Remember, every month his o/s debt increases and NO you don't pay him one penny more.

If an appeal had been successful, that would have been a 'suspended possession order' which means the court has agreed to stay possession providing an agreed repayment schedule was adhered to - I don't think that's going to happen.

HTH

Good posting - one more thing: if the landlord is stupid enough to act in a `rash` way he could face 6 months in prison and/or a £5000 fine. ;)

Yes southsea13, totally ommitted to say that.

DrGUID, if the 'landlord' turns up or 'sends someone round' to 'have a word about the outstanding payments' that is harrassment and a call to your local police is in order. I know from past experience and there is a lot of case law to corroborate this.

This is why I recommend the lock changing.

keep us posted and be sure you react to the exact wording of any post, not the assumptions that the solicitors may prefer you take.