LEGAL
are adjourned, so that what should be a five-minute hearing can be adjourned for six to eight weeks, during which time, inevitably, the arrears will rise. She advises landlords not to go it alone, but to get a good solicitor. “We have in depth knowledge of how the court papers should be presented,” Marveen says. “Most judges have no housing knowledge at all; the involvement of a good barrister can help guide the judge and may get a judgement where a landlord wouldn’t.” Some rental cases are tricky. For
instance, when a tenant appears to have jumped ship, what can the agent do? Nick Perkins says, “If you change the locks, potentially it’s an unlawful eviction. It comes down to whether you’re absolutely certain the property is abandoned.” He advises agents to consider the possibility of a court case, and to get photographic evidence of the state of the property, as well as diarising attempts to contact the tenant, and using specially worded notices.
Professional indemnity
Professional indemnity insurance will help agents in the case of legal action; policies cover errors and omissions, breach of duty of care, and legal costs. Roger Smith says “don’t get into estate agency at all unless you’re carrying decent PI insurance. Yes, it’s expensive, and it’s getting more expensive, but it’s absolutely vital” – all the more so since claims can vastly exceed the original fee for a valuation or property transaction.
Where to get helP
A good solicitor is a valuable guide through the minefield, and as Eamonn Hogan points out, it’s not just knowledge of the relevant Acts of Parliament that’s involved. “You need the evidence to support your case, you have to have a thorough knowledge of the civil procedure, and you need a good understanding of the legal issues,” he explains. He also points out that solicitors can help clients use mediation in an attempt to avoid the high costs of litigation, wherever possible. While larger agents have in-house
compliance departments, and ensure that employees are updated on legal issues that can affect their work, Nick Perkins says; “The one and two man bands will struggle.” A good solicitor can help such agents improve their preparedness. “We operate a helpline for these agents,” he says. “They need advice on tap.” He will not only advise on the law, but also tell lettings agents what evidence they need to get in
26 NOVEMBER 2011 PROPERTYdrum
Don’t get into estate agency unless you have decent Professional Indemnity.”
order to support their case in the event of potential litigation. Estate agents wanting to get the best out
of their lawyers shouldn’t wait till things go wrong. Roger Smith says the work starts with having good procedures and paper trails within the firm. “People so often fall down on the job because they don’t do their homework.” For instance, he often helps draft contracts, and says “the more detail that is worked into the heads of terms with regard to the basic principles, the less there is for lawyers to argue about later.” Marveen Smith also believes that “good
office procedures can help an agent advise their landlords to take early action, but they also help provide evidence in the event of proceedings.” Early action is helpful, though not always taken – she has seen one case with “£30,000 rent arrears – and the rent was only £850 a month.” It’s also useful if agents tell solicitors of an issue as soon as possible, “and not wait till five minutes before it goes to court,” she says. For instance if there’s any chance of a counterclaim for lack of repair, the solicitor needs to know. She warns, “The courts will always be biased in favour of the tenant as they’re seen as the weaker party. That’s why a good agent and a good solicitor are important to a landlord to make sure that the case is solid and there’s no last minute hitch.” Many estate agents still work with local
general solicitors’ firms on conveyancing. However, Eamonn Hogan says, “The days of the generalist are numbered. The legal
profession is moving towards a greater degree of specialism.” That’s partly due to the sheer amount of change in procedure, legislation, and regulation. He believes agents need to look for a solicitor that specialises in the relevant area of property law. Nick Perkins says, “Your ordinary
conveyancing solicitor will have no idea of the sort of things that can go wrong.” He suggests that agents do their research by talking to those legal firms that specialise in their sector – for instance there are five or six solicitors who work with ARLA, and regularly lecture on aspects of lettings law. “Use trade shows,” he advises; “ see who’s there, who’s putting their face about.” Most estate agents will never experience
complex litigation. But there’s always that risk – and it can never hurt to have a good lawyer on your side.
ContaCts Dean Wilson,
www.deanwilson.co.uk 01273 327241 PainSmith,
www.painsmith.co.uk 01420 565310 Barlow Robbins,
www.barlowrobbins.com 07715 923421 Access Legal at Shoosmiths,
www.access-legal.co.uk 03700 86 86 86 Colemans-ctts,
www.colemans-ctts.co.uk 0208 296 6866 Dutton Gregory LLP,
www.duttongregory.co.uk 01962 844333
Do you have any views to share?
www.propertydrum.com/articles/legalhelpnov
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