Unhappy with agent - can we get out of the contract with them?

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Emma & Tony
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Hello all,

We are recent members of RLA and have never let a property before, so I apologise in advance for our first post being a legal question.

We are immigrating to Australia in September and do not want to sell out home as we may wish to return to it at some point in the future. We have decided to let the house and have done lots of research on the tax implications in both countries, gas and electric tests have been done, we have subscribed to RLA and we are currently deciding on which insurance to go with. We have researched as much as possible to try and fore-arm ourselves with any possible complications that may arise. We initially did not want use an agent at all, but manage the whole thing privately. We decided at the last minute to instruct an agent as a 'tenant finder' - this is where our first problems have started.

Emma met with the agent to discuss their service and our needs. We basically only need a finders service, someone that can advertise on rightmove and that's about it really. The agent said that they would also prefer to carry out the viewings, ( which I personally wanted to do ), and that they will do the referencing of prospective tenants. We said we would also be advertising elsewhere and was that okay - they skirted around an answer but in the end stated that if we found our own tenant we would have no fees whatsoever to pay the agent.

The price they quoted for this was a one-off 400 + VAT.

They left a contract to sign.

This is where it gets awkward.

The contract is 11 pages, with two sheets at the end for signatures. The contract is very broad and covers ALL of the agents various services, the two sheets at the end are specific to either the tenant finding service or the full management service.

We called the agent a couple of days later to instruct them to 'tenant find'. They would not proceed without a faxed copy of the contract signature sheet. Stupidly, we read the signature sheet in isolation as it appeared to cover the service we agreed in person on that single sheet itself.

After now realising that the sheet we have signed is part of the 11 page contract, we have thoroughly read the document and are very annoyed at ourselves as we have signed for a service that we absolutely do not want.

The main thing that has us worried is that the contract wording would have us liable for far greater commission that the agreed one off 400+vat - the contract states that the 400+ vat finding fee is a minimum figure, the actual cost is 10% of the rental for the agreed tenancy period and is also payable every time the introduced tenant extends or renews tenancy. Our rental value is 750 per month, which even on a 6 month basis works out at 450 +vat. Then payable again for the next 6 months. There is also a cancellation charge of 400+vat should we wish to terminate the contract.

We would never have agreed to charges that high, and were led to believe that we were 'buying' a one-off tenant finding service.

My questions are two fold:-

1 - We really want to cancel this contract, with little or no losses to ourselves. This is not only due to the charges in the contract, but in the main due to the agent conducting their business very poorly. We have had two viewings within the first week of advertising, they messed both of them up and have probably been a direct cause of one of the viewings not leading to a let.

Firstly, they messed up the advertisement for our house, namely the fact that it was marketed as having garage ( which it does not ), and the internal layout of the split-level areas being misrepresented. The bulk of the text of the advert was clearly copied from our own personal website, which whilst not copyright per se, was not very professional.

Secondly, on Tuesday 10th July they showed the property to a prospective tenant and accepted an application form and fee, agreeing with the prospective tenant that they could have the house from the 31st July. Our express instruction to the agent was that the house was available from the 1st September at the earliest - this was also listed on the agents advert on rightmove. This wasted not only their time, but that of the prospective tenant. Further to this, they then flagged the advert of our house on rightmove.co.uk as being 'let agreed', resulting in a narrowing of the search criteria for further potential tenants. As far as we are concerned, for a house to be 'let agreed', we as the landlords and the prospective tenants should have first signed a tenancy agreement, after satisfactory completion of reference checks by the agent - not the day that a tenant puts in an application. The following day, once the agent called the prospective tenets to explain that the house could not be let on the 31st July, the prospective tenants obviously pulled out as, unsurprisingly, they could not wait until the 1st September.

This raised concerns immediately over the way in which our home was being marketed. If a fundamental thing such as the availability date can be mis-represented to a prospective tenant, then what else are people being told.

Thirdly - Thursday 19th July, Tony received a call from the agent to state that they had arranged a viewing for that afternoon and was it acceptable. Tony told the agent that it was not acceptable, as we had recently had re-wiring carried out the previous days and the house was not in a fit position to be shown. What was not explained by the agent was that the viewing appointment had been made a few days prior to this date and we had not been informed. Had we known when the booking had been made, that there was a requested viewing for the 19th, we could have easily had the house ready to view. On arriving home that evening, Tony was approached by our neighbour to say that there had been a couple outside the house most of the afternoon, leaving and returning on several occasions. They obviously had not got the agents message to cancel. As yet, they have not made another appointment. On speaking with a member of staff at the agency office at around 5pm that same day, Tony was told that the couple had had other viewings that day. My concern is that they may have been from out of the area, and in a position whereby they needed to make a decision on a property that day. In that case, we have lost a potential tenant. There are not many houses in our area to choose from and we would have stood a very good chance of securing a let to someone in a position to rent a house of our type and cost. We view this as a very serious mistake on the part of the agent - they could have cost us a tenant.

It was re-iterated during the phone call to the agent that evening, that under no circumstances should appointments be confirmed without our consent, as the house is not an empty rental but is our home, and as such we need to be aware of when people may be shown around it. In addition to this, we also have the property advertised elsewhere, so any appointments or application requests should be authorised by us in the first instance to ensure that we have not already taken applications or appointments from other interested parties. This was made clear to the agent prior to our instruction to them to market our house.

Emma called the agent on Friday 20th to express her concerns over their service. The agent was extremely apologetic and assured us that both previous interested parties were arranging re-viewings for Monday 23rd and Tuesday 24th July.

It is now Monday 23rd at 18:45 and there has been no contact from the agent regarding these new appointments.

Based on the factors above, would we have a case to terminate the contract with the agent and not be liable for any fees, based primarily on a breach of contract on their part for marketing the house too early?

We would have no problem in paying the original 400 + vat should one of those two prospective tenants make a successful application though the agent, but we no longer want them to

23/07/2007 00:00

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