London & Quadrant Housing Trust (202001649)

REPORT

COMPLAINT 202001649

London & Quadrant H T

8 March 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s handling of the resident’s mutual exchange.

Background

2. The resident completed a mutual exchange and the outgoing resident’s tenancy was assigned to her on 30 October 2019. The tenancy agreement assigned to her specified that there was no garden available for the property. A mutual exchange property inspection was carried out on 30 October 2019 where the landlord and both incoming and outgoing residents were present. The report from this showed that an inspection of the garden was carried out.
3. The landlord’s mutual exchange procedure confirms that the outgoing resident should bring their tenancy agreement to the assignment appointment where the incoming resident is to be present. The landlord should check the details of resident’s and their documents are correct.
4. The landlord’s mutual exchange policy confirms that it is responsible for approving registrations to the Homeswapper service and that it is to determine the eligibility of residents to exchange properties. It is also to carry out checks on legal action, arrears, property adaptation, succession for the outgoing tenant and legal action, tenant breaches, property adaptation and household composition for the incoming resident. Furthermore, it is to carry out property checks. The landlord is to advise the incoming resident of the frequency and amount of rent and any remaining succession rights.
5. The terms and conditions of the Homeswapper service specify that the person listing their property agrees not to post any material that is misleading or inaccurate. 
6. The resident raised a complaint with the landlord on 27 May 2020 in which she complained about the condition of her neighbour’s garden. She stated that the neighbour was a hoarder and she had informed it in January 2020 about the “clutter” in the neighbour’s garden which was overgrown and attracting vermin. The resident stated that this was a problem for her as she needed to go through the neighbour’s garden to access her section of the garden which was divided up between the two properties.
7. The landlord issued a stage one complaint response to the resident on 29 May 2020 in which it advised that it had been in contact with the neighbour about hoarding and apologised for not updating her about this in January 2020. It relayed a discussion it had with her earlier that day in which it had checked her tenancy agreement and confirmed that this specified that she did not have access to a garden. The landlord advised that the resident had been misinformed by the previous resident that she had access to the garden. It provided the mutual exchange form and tenancy agreement as requested.
8. The resident escalated her complaint to the final stage of the landlord’s complaint procedure on 7 June 2020. She was unhappy that, seven months after moving into the property, she had only just been informed that she did not have access to the garden nor the right to buy the property. The resident advised that she had only now been provided with a copy of the tenancy agreement despite requesting this three times previously. She contended that both the outgoing resident and the landlord had “deceived” her.
9. The resident asserted that she had followed the “right” mutual exchange process and noted that the section of garden she believed was included with the property had a separate access. She had accepted the information on the Homeswapper website, which required residents to provide truthful information and for landlord to check this information. This information had stated that the property had a garden and a secure tenancy.
10. The resident highlighted that the garden had been divided into two and the outgoing resident and the neighbour had both told her that its use had been shared between them. She asserted that she had not made a mistake and that the landlord should have checked the property’s details before “approving the property”. The resident added that the landlord had not informed her prior to her complaint that she did not have access to the garden.
11. The landlord issued its final stage complaint response to the resident on 30 June 2020 in which it advised that “the onus is on the tenant advertising their property to ensure they do not post any misleading or inaccurate information”. It asserted that it was the responsibility of the incoming resident to ensure all the information was correct before continuing with a mutual exchange. The landlord confirmed that it was not responsible for any inaccurate information provided by the previous resident and confirmed that the complaint was now closed.

Assessment and findings

12. The tenancy agreement, above at point 2, is the legal contract between the landlord and the resident. As the outgoing resident’s tenancy agreement was assigned to the resident, her acceptance of the deed of assignment confirmed her acceptance of the terms of the tenancy agreement.
13. When seeking a property, the responsibility for ensuring that a property is suitable and is as described by the party offering it, lies with the prospective resident. Therefore, while the resident holds that she was misled about the provision of a garden and the right to buy status of the property, these were aspects of the offer which she should have confirmed for herself by requesting to view the outgoing resident’s tenancy agreement or liaising with the landlord. There is no evidence of the resident making such enquiries.
14. It is noted that the resident alleges that she was misled by the outgoing resident about the garden and the right to buy status of the property. The landlord’s mutual exchange procedure, above at point 4, is silent on the matter of checking the accuracy of information provided by the outgoing resident to the incoming resident. This indicates that there is no obligation on it to verify this.
15. It is important to note that the Homeswapper service through which the outgoing resident advertised the property is a third-party service, and, whilst the landlord must approve registrations to this, it is not responsible, nor would it be practical, for establishing the veracity of the listings advertised there.
16. Despite the above, it is noted that, as per point 2 above, the landlord carried out an inspection of the property alongside both incoming and outgoing residents. While there is no evidence that it explicitly advised the resident that the property had use of a garden, this inspection was likely to have added weight to the outgoing resident’s statement that it did. The landlord missed an opportunity at this point to manage her expectations.
17. In summary, there is no evidence of a failure on the part of the landlord. It was not responsible for checking the outgoing resident’s advertisement on Homeswapper, or any subsequent information they may have imparted. It could, however, have clarified during the mutual exchange inspection which amenities were included within the tenancy agreement and a recommendation will be made about this below. However, the ultimate responsibility for verifying the information provided by the outgoing resident lay with the resident.

Determination (decision)

18. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s mutual exchange.

Reasons

19. There was no obligation on the landlord to verify the disputed information provided in the outgoing resident’s advertisement of the property; however, it could have clarified sooner any misapprehension on the resident’s part.

Recommendations

20. The landlord should review its processes for facilitating mutual exchanges so that it can clarify the terms of the tenancy agreement to prospective residents should it notice any discrepancies.