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Of Mice and Mould - Sean Hooker's Blog

“The best laid schemes of mice and men often go wrong and leave us nothing but grief and pain, instead of promised joy!” is a modern translation of the line from the poem “To a Mouse” by Robert Burns that inspired the Steinbeck classic “Of Mice and Men”. Steinbeck’s story deals with the themes of aspirational dreams, the burdens of responsibility and consequences of actions. If you haven’t read the book I highly recommend it - no spoilers but it does not have a happy ending!

What, I hear you say, has this to do with letting property? Well, let me explain.

The contractual relationship between the parties, in a tripartite relationship in lettings, forms the basis of the understanding that they have and should clearly lay out the expectations, responsibilities and the consequences that each commit to.  It is therefore the contract, be it the tenancy agreement between the tenant and landlord, or the management or letting agreement between the agent and landlord that is the starting point for resolving any disputes.

Even when these factors are considered the unforeseen can change the landscape and then the debate becomes more about where the burden lies in terms of applying redress and compensation.

As the American political figure Donald Rumsfeld famously mused, there are “known unknowns” and “unknown unknowns”. It could be argued that this means that these things are out of your control, but he also spoke about “unknown knowns” or things you thought you knew but did not really. The parties in a conflict make assumptions and believe they have the right to do something when they have no basis or authority to do so. 

It is these sort of complaints that become the most fractious in my view, because the parties have not anticipated the outcome of certain situations and acted accordingly. It is in these scenarios where the agent is paramount and the art of managing expectations and conflict resolution is vital.

It is also why, in complaint redress, the agent is often the one that shoulders the responsibility when things go wrong. It is the task of the agent to successfully manage the relationship and balance their obligations to the landlord with their duty of care to the tenant.

The importance of this was highlighted to me recently, when attending the ARLA Conference. The question was asked whether, following the tenant fee ban, an agent would have any obligations to the tenant – given that there was no fiduciary relationship between them. As one agent stated to me in an angry e-mail the other week, “I work for the landlord, not these tenants”.

I am afraid that this view is far from correct and that consumer law and the protection it affords, will still be there after the fee ban. This falls into a classic example of an “unknown known” and I am afraid that agents who abandon their duty of care to tenants will find that complaints will go against them when they are referred to the redress schemes.

It should also be noted that it would be legally and commercially short-sighted not to look after the tenant who pays your landlord rent. After all, it is this that allows the landlord to pay your fees! Why would you not want to look after your customer’s customer and if you do not, are you really looking after their interests? A happy tenant means a happy landlord.  

So what should an agent do to ensure that they are fulfilling their professional obligations and providing real value to their customers? As stated above, it is essential to ensure that your agreements are the best they can be. I always know when a complaint will go badly for an agent, when I see a poorly drafted tenancy agreement or where all too common there is a bad or even no landlord agreement.

I also urge agents to manage the expectations of the parties. As the title of this piece suggests, landlords and tenants have diametrically opposed views with regards to issues such as pest infestations and mould and damp. It is always the fault of the other party depending on who you talk to. As an agent, you have to negotiate the tricky path of ensuring adequate provision in the tenancy agreement, ensuring that these clauses are fair and then managing the process of resolving any situation. These should be your “known unknowns” and are the reason why you need to establish the ground rules before you start. It is your job not to have any “unknown unknowns” and therefore you have to work hard to ensure you manage both parties.

In the end, both Burn’s poem and Steinbeck’s novel end in tragedy. The mouse had laboured long and hard to build a nest, only for the farmer to plough up the field and destroy it. Had the parties known about the other’s situation, would it have made a difference? Who had the right to do what they did in the field? Did the farmer even consider the mouse or see it as a pest? Who knows!

Steinbeck’s book I will leave you to read, but clearly the lesson is: what you don’t know is what hurts you, but knowing you don’t know is a start!

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