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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, I have paid a referencing fee to move into a rental property.

Customer Question

Hi, I have paid a referencing fee to move into a rental property. The fee was paid in good faith in spite of one open issue. After paying the referencing fee, a meeting was arranged with the landlord and the issue was discussed - and the landlord agreed to fix the issue (note landlord did not say "I will think about it", they said "we will do it". Next day I get a phone call from the agency saying the landlord has refused to deal with the issue.
I asked the agent for time before I sign the contract and today I learnt from the agent that "The landlord has asked us to re-market the property any way".
On the receipt for the referencing fee, it says "Please note the Referencing Fee is non-refundable and cannot be returned if you decide not to go ahead with the property as agreed or if you fail referencing". I have not decided to not go ahead with the property (I have asked the agent for time to consider the tenancy contract) and I have not failed referencing.
Do I have a claim to get a refund for the referencing fee?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

Have you asked the agent to refund the referencing fee to date please?

JACUSTOMER-jwks7fp6- : Yes I have and they have refused to refund it
Josh-2010 :

Thanks.

Josh-2010 :

In terms of a referencing deposit it is up to an agent to show that the same is non refundable if he wishes to attempt to retain it. Even if they could point to a term you had agreed to making the deposit non refundable the OFT have held that such a term allowing the agent to retain the whole of a holding depoti is unfair under schedule 2 paragraph 1 of the Unfair Terms in Consumer Contracts Regulations and the same could accordingly be unenforceble.

Josh-2010 :

Consider making a written request - email or letter - for the return of the deposit. Point to the fact that you made the payment as a gesture of good faith and did not agree that the same would be non refundable and that it is not reasonable for them to refuse to refund the deposit on the basis the landlord has changed his mind. Point them to the above legislation and ask that the same is refunded within 7 days failing which advise that you reserve your right to request a chargeback (if you paid by card) and /or issue proceedings in the county court.

Josh-2010 :

if the agent is a member of the property ombudsman service, some agents are and some are not, you can also make a complaint to the ombudsman service you have the power to make a determination and award compensation. You can check whether the agent is a member and if necessary make a complaint using the following link:

Josh-2010 :

http://www.tpos.co.uk/

Josh-2010 :

is there anything above I can clarify for you?

JACUSTOMER-jwks7fp6- :

Hi, I have gone back to the agent and they offered to refund £100 (out of a total of £320). I told them this is not enough and I will settle for £225 but they have refused and said they await the court claim. What do I do now?

Josh-2010 :

How did you pay please - cheque or card?

JACUSTOMER-jwks7fp6- :

I have paid by credit card.

Josh-2010 :

Thanks

Josh-2010 :

You may wish to refer the agent to OFT guidance on what is an unfair and unenforceable term

Josh-2010 :

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

Josh-2010 :

You may specifically wish to look at paras 3.42 3.67 3.68

Josh-2010 :

You can attempt a chargeback claim through your credit card provider but they will often not be willing to process a chargeback on the basis of an unfair term claim because they will say this is for the courts to decide. Sometimes you get lucky though.

Josh-2010 :

Otherwise your approach is one via the small claims court. The agents position is tenuous as the OFT have produced extensive guidance as you will see above to deal with such matters and the Unfair Terms in Consumer Contracts Regulations is effectively enforced by the courts

Josh-2010 :

If you are forced to issue proceedings the simplest way is via:

Josh-2010 :

https://www.moneyclaim.gov.uk/

Josh-2010 :

Is there anything above I can clarify for you any further?

Josh-2010 :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

JACUSTOMER-jwks7fp6- :

Not for now Josh-2010. The agent is giving me a hard time and aren't responding to the legal references you have stated. I will definitely rate the service but just need to wait to see what the outcome is!

Josh-2010 :

Not at all. Some agents will be difficult in the face of overwhelming authority to the contrary of their position. If the agents don't play ball consider issuing proceedings and ask the court for summary judgement against them. If they are a member of the ombudsman service remember you can make a complaint to the Ombudsman too as an alternartive to court.

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