Advice on my justification to terminate the agency agreement?

Hello fellow landlords, I have a situation for which I am wondering if anyone has advice.

In late 2022 I let my flat in London using a well know national (and international) estate agent and they arranged a 24 month Tenancy Agreement. This was a surprise as I had only expected 12 months and had initially asked this verbally of lettings negotiator, though this is not in writing so I don’t have proof and the negotiator has since left the agent.

The lettings negotiator at that time emailed to say “Over the past few days we’ve done a few viewings and have today received the offer below:” ie 24 months. But the original offer from the tenant was for 12 months and this was not communicated to me.

The original agreement was for lettings and management but I cancelled the management service after a few months as I wasn’t happy with the service, although I still had to continue to pay their 8% + VAT lettings fee.

The Tenancy Agreement expires in early January 2025 and I would like to switch to another agent to manage the property as I don’t trust this agent any longer.

I recently reached out to the lettings manager to say I didn’t want to continue with them after the end of the TA, though without stating the full facts of their unethical behaviour, and she replied that I must keep paying the lettings fee for as long as the tenants remain.

The agent is now pushing me to agree to another TA and is contacting the tenant about this.

When I checked the Terms of Business I was surprised to find there is NO ability to terminate the agreement!!

When I asked the tenants why they had agreed to a 24 month tenancy with a 16 month fixed period they said they had initially offered 12 months but thought 24 months was what I wanted as the lettings negotiator had pushed them to agree to that with a 16 fixed period/break clause.

I believe the negotiator pushed for a 24-month agreement in order to get a 16-month fixed period to which the agent was then entitled to 16 months commission upfront. If it had been a 12 month agreement with a 6-month fixed period then all they could ask upfront would be 6 months commission.

The tenants explained thus;

“Hi, here’s how it happened: We proposed a 12-month contract and a 6-month break clause (we were advised by friends to do so)-(The negotiator) said he recommends offering a longer contract. He said landlords preferred committed tenants, told us your previous tenant lived here for 5 years etc. So then we offered a 24-month contract and a 12-month break clause (which essentially meant a year long contract since it gave us both the right to terminate it after a year) -(the negotiator) then got back to that offer and asked whether we could commit to a 16-month break clause. When (the negotiator) insisted, (we) thought he pushed for a longer contract because you asked him to. We debated it among ourselves I had really liked the flat so we agreed to it.”

Here the negotiator is manipulating the tenants with talk of “landlords” preference for long-term tenants etc.

I believe my justification to terminate the agreement is set out in the Terms of Business as below.

“9.31 Termination of Contract
The Landlord may terminate the appointment of (the agent) under this Agreement during the period of the Tenancy only if there is a Fundamental Breach of Obligation by (the agent). This entitlement to terminate is subject to the Landlord first providing (the agent) with written notice of the Fundamental Breach of Obligation and the steps required to remedy such breach and giving (the agent) 7 clear days to remedy the breach. In the event of a lawful termination under this clause, the Landlord will have no continuing obligation to pay commission fees of any kind. The provisions of this clause 9.31 are separate to and distinct from any cancellation rights in part 8 above and (if applicable), Your cancellation rights are not affected.”

I believe the unethical and manipulative behavior of the agent is against the rules or rulings of at least The Property Ombudsman (the agent is a member), the Consumer Rights Act 2015, The Property Redress Scheme and the National Trading Standards because;

1. The lettings agent did not adhere to the fundamental obligation of providing a landlord clear instructions on how an agreement can be cancelled. This is against the Consumer Rights Act and the Property Ombudsman.
2. The lettings negotiator manipulated the lettings process, and then lied to me about it, and so failed to carry out services with “reasonable care and skill, per the Property Redress Scheme.
3. The lettings agent wrote an agreement without an ability to cancel it, that is an agreement without fair terms and is against the Consumer Rights Act.
4. The lettings agent did not perform with a duty of care to myself nor did they represent my interests. The National Trading Standards website states under Letting Agents- Relationship with landlords- Duty of care – A duty of loyalty; “The agent’s responsibility is to represent the interests of their principal, and not to allow any other interest (their own, or someone else’s) to conflict with this.

I’ve reached out to at least three solicitor firms so far to get a legal opinion on whether the TOB are enforceable but all are either “conflicted” or too busy etc. I have drafted a letter to the lettings manager stating the above facts but not yet sent it as I was hoping to get a legal opinion first.

What do P118 readers think?

Bristol Landlord

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