The Property Ombudsman & Letting Agents
The Property Ombudsman (TPO) came into being on 1 May 2009. This is an organisation which sets standards through a code of practice and has a complaints procedure, which has implications for letting and managing agents.
Formerly, the Ombudsman for Estate Agents (OEA), the new name reflects a broader remit including: Property Sales, Lettings, Letting Agents, Managing Agents, Commercial and Overseas.
Code of Practice for Letting Agents
Lettings and Property Managing Agents who join the TPO also subscribe to the Code of Practice for Letting Agents.
All Letting Agents whether members of TPO or not are advised to deal prudently with tenant checks and referencing and to fully comply with this Code of Practice. TenantVERIFY® fully supports the TPO Code of Practice.
A landlord's property is a substantial asset and in some cases provides essential income to re-pay a mortgage.
Therefore agents are under an obligation to show due diligence when selecting tenants to occupy clients' (landlords') properties and should resist any pressure or temptation to rush the process or cut corners.
Taking Reasonable Care - Due Diligence
Reasonable care is needed to ensure that you let to responsible tenants who will take care of the property and be capable of paying the rent on time. The purpose of tenant checks and referencing is to satisfy the landlord that the prospective tenant:
- is the person he or she claims to be - ID checks - though this is the agent or landlord's responsibility
- can verify his or her previous residency
- has sufficient income to pay the rent
- is of good character and ideally, settled employment
- has no recorded eviction, debt problems or court judgments.
Agents need good Paper Evidence
In the event of a complaint, the Ombudsman will expect to see good evidence that agents have carried out prudent referencing themselves or that they have used a recognised tenant checking and referencing agency such as TenantVERIFY®
Where information appears dubious the agent should investigate further, giving the applicant the chance to explain or produce more evidence. There can sometimes be perfectly plausible explanations for adverse information.
It is the agent's responsibility to do Identity Checks (ID or Anti-Money Laundering Checks) as they have the applicant and documentary evidence before them. Copies of photo drivers' licences or passports, plus recent utility bills and/or bank statements to show residency will be appropriate - ID Certificate.
Anti-Money Laundering Checks
All banks are now required to make these rather annoying checks before they are allowed to take money from you. The same law applies to anyone who takes money, including building societies, solicitors and accountants, estate and letting agents.
Money laundering checks include requiring applicants to produce a passport, driving licence, recent bank statements together with enquiries made to recognised credit reference agencies - TenantVERIFY® can carry out Money Laundering and ID checks.
These checks are undertaken on absolutely everyone, so applicants should be re-assured that this is not personal to them or that they are suspected of doing anything illegal. The money laundering checks made at credit reference agencies leave an ‘enquiry footprint’ – an indelible record so that you can later see who has been checked out. The enquiry footprint does not have any impact on the applicant's credit score or on your ability to get credit.
Agents act on behalf of Landlords
Agents act on behalf of their landlord clients, so this should be clearly explained to applicants. Where holding deposits are taken, or fees for checks and referencing, applicants (prospective tenants) should be informed in writing what happens if they fail to qualify, e.g., if the monies are not refundable.
Ultimately, the decision as to whether an applicant is accepted for an tenancy or not should be taken by the landlord, not the agent. Therefore, the agent should ensure that landlords are in a position to make an informed decision by making all relevant information available to them.
As an agent you should always draw to the landlord's attention any negative information you receive about the prospective tenant, ideally in writing, and advise accordingly.
There are Risks in Letting Property
There are inherent risks in letting property. By the use of prudent referencing and due diligence on the part of the letting agent, tenant risks can be minimised but never eliminated. Landlords should be made aware of this fact.
Complaints to the ombudsman sometimes arise against letting agents when tenants misbehave during the tenancy. These complaints will not be up-held where the agent can show evidence of due diligence and prudent referencing. The key word here is evidence: you need to keep the paperwork on file or on your completer system to show exactly what was done.
Letting agents should resist pressure from landlords, prospective tenants or indeed internal constraints to conclude a let prematurely. Be prepared to show evidence from the file that you discussed the decision with the landlord with all relevant facts to hand, and that the landlord made the final decision.
Disclosing Confidential Information
Landlords will sometimes request or even demand to see credit check reports on their tenants or prospective tenants. This can sometimes occur when disputes arise during or after the tenancy.
As agents act for their landlord clients, they are under an obligation to share all relevant information with their principal, though disclosing confidential information can have Data Protection implications. Providing the applicant tenant agreed to this at the time the information was provided, this will usually be acceptable. The landlord must however handle the information securely and in-line with Data Protection principles.
The TenantVERIFY® Application forms specifically inform the applicants that information supplied can be shared by relevant parties, and by signing the form the applicant agrees to this.
It is very important therefore that the agent (or landlord) retains the completed Tenancy Application Form for evidence.
Credit check reports and references should NOT be disclosed to applicants (prospective tenants) but instead applicants should be referred to the main credit reference agencies or their own referees. Applicants can obtain copies of their own credit files from the agencies on payment of a small fee.
Code of Practice - extract on Referencing:
References – Clients and Applicants – Section 7
7a - In all referencing processes or procedures, you should be conscious of the need to be reasonably diligent in identifying fraudulent applications.
7b - You should take relevant references on an applicant appropriate to the circumstances of the applicant and/or in line with arrangements agreed with the client. Your own referencing procedures should usually be by way of a recognised Referencing Service provider or by direct application to third party referees or any combination of the above.
7c - Where references are provided directly by the applicant, you should make reasonable endeavours to validate their authenticity.
7d - Where the current existing address of applicants is not evidenced via the Electoral Roll, such an address should, wherever practical, be verified by the provision to you of a Utility Bill or Bank Statement, or Building Society passbook or Council Tax account or Driving Licence or similar etc., by the applicant.
7e - You should take reasonable steps to verify and retain a record of the identity, and nationality (if non UK), of a successful applicant.
7f - Where an applicant fails, in the circumstances, to meet reasonably prudent referencing criteria, you should obtain confirmation, preferably in writing, from the client should the client wish to proceed with that applicant.
See the full Code of Practice for Letting Agents here