Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask in relation to the original contract - would I be correct to presume there are terms and conditions associated with that contract? If so is there mention of a cancellation fee in the same and what are the terms? i.e. when is a cancellation fee payable under the same?
I have the contract in pdf format. Is there a way to send this to you?
It is possible to upload it but some people seem to have trouble with this - I think it depends what you are using to acces the website. You may be able to copy and paste or use the paperclip symbol if you have one.
Alternatively you may be able to copy the text of the pdf and paste that
Yep - thanks. Just reviewing...
Thanks. Can you kindly clarify that you retained the agent on a finders only basis as opposed to a full management service please? What fee did you agree would be paid in respect of that service?
Yes it was solely on a finders only basis and we handled all management ourselves. I cant remember the exact amount off hand but was around £225 I believe. I think its laid out in section 3.2 and the rent she secured was £500
Quite. I had spotted the fees specified in 3.2. I was interested to know if those were in deed what she charged.
Presumably you have emails or some other documentation stating that you only wanted to instruct her on a finder basis or words to that effect?
Cant be sure to be honest but I think it was around that amount
I only have the other form she gave us but certainly no monthly amounts have ever been paid to her
OK. The agreement is a very confused document as it attempts rather clumsily in my view to try to provide for a variety of different services the agency offers but does so without clarity. However it does go on to set out a list of costs at the end which is clear enough so far as it goes. As to the position regarding the cancellation fee.
There is no need to have a written formal signed contract in order for a contract to exist. A contract can be formed by two or more people simply agreeing to transact something. If one party wishes to impose terms it is for that party to show that such terms were agreed. A written agreement is useful for this purpose in the event of the others denial of any specific term. In this case you signed this agreement several years ago and it is for the agent to show that the terms still apply to subsequent instructions you made. This should not be overly difficult for the agent to show providing such terms were made available to you and you continued to instruct the agent without stating that you did so on new terms or that you were no longer satisfied with the previous terms however it is for the agent to make her case in this respect rather than vice versa. However I do not consider that this means that you are required to pay the agent the cancellation fee demanded for the following reasons.
The terms (if we accept for the present that they do continue to apply as is quite possible as above) require you to give 60 days notice of any cancellation. That is all well and good and this provision may be enforceable however the agreement goes on to provide that £350 is payable on withdrawal from the agent. I do not consider that this provision has effect as it would appear to be both potentially a penalty at common law and an unfair term as defined by the Unfair Terms in Consumer Contracts Regulations.
The agent was only able to provide an email from us saying we wish to instruct them again - nothing stating any pre-existing contract or new contract was now applicable. She has now sent a pre court claim form demanding this money but does not provide any evvidence to say its valid other than this old legacy contract. Am I able to defend this
The provision effectively provides that if you ever cancel the agreement you have to pay £350 which amounts to a penalty for withdrawing. 4.1 provides that you are liable to pay £350 if you withdraw from the agreement at any point. Such a term unless specifically negotiated and agree by you cannot be enforced as it would appear to fall foul of common law and the UTCCR as above.
The agent is entitled to a period of notice from you of you wish to cancel - the agreement states 60 days and there is a good chance that the agent could seek to enforce this in my view though as above it is for the agent to show they are entitled to more than say 30 days notice which would otherwise typically constitute reasonable notice but it does not follow that they can charge £350 if they are not given adequate notice. Did you provide any notice period to the agent at all?
What is a pre court claim form? Has she threatened court proceedings or actually issued them against you?
We basically asked them to no longer market the property, not sure what notice period would give. I was even willing to accept a payment for work carried out to date even though only actually sent one person to view property. It looks like she has sent us a copy of the form she would submit to the court but nothing has come through from the court. It says if we pay £400, It will not proceed to court
in terms of giving notice, how does that work. What would happen in the 30 days notice period that didnt happen anyway? as she wouldnt market it for that period
Thanks. Based on the above if you remain willing to pay for her costs incurred to date then you may consider offering as a gesture of goodwill without admission of liability the sum of £x pointing out that she has shown no evidence of being able to find a tenant fr the property and that you dispute he fees she claims on the basis that the clause she relies upon constitutes a penalty at common law and an unfair term under the Unfair Terms in Consumer Contracts Regulations as it operates as a penalty and is therefore unlawful and indicate to her that in the event she issues proceedings, you will vigourously defend your position on the above basis pointing and claim costs if you are required to attend court.
In your opinion, based on the information I have provided, do you believe she would win any claim or do you believe it would find in our favour?
The area where you are potentially slightly week is that you failed to give a period of notice from what you say which should have been in the absence of a specific term, reasonable in the circumstances or the period provided by agreement. I consider that she may be able to successfully claim that she was entitled to 60 days notice here however it is for her to show and for a judge to decide. If she is successful in this then she can eek to show that she has suffered loss as a consequence of your early cancellation but she must be able to point to some evidence that she was likely to find a tenant had she been given 60 days notice in order to be able to claim some of her commission she would have then been due. If she could show this then she may have a claim to some or all of the commission she would have received had she been given adequate notice.
If you wish to guard against this risk you may consider advising her that whilst you have no intention of paying her cancellation charge you will allow her a further two months to attempt to locate a tenant in accordance with the cancellation provision. If you do this then I cannot see how she could pursue a claim on the above basis however you may not want to in which case the above is a potential area of risk if she did sue.
The cancellation charge however I cannot see being successful on her part on the above basis though litigation is of course by definition uncertain.
Is there anything above I can clarify for you?
What would you think is a reasonable amount to offer for 6 weeks work of finding only 1 viewer. I thought £100? Also one last thing, she is also claiming £65 for a checkout fee but has never returned our keys which she held for viewings and insists we have them, again we dont and she is unable to provide evidence she gave them to us
The amount you propose does not seem unreasonable but it is largely a matter of judgment and your view is just as valid as mine. Regarding the keys, if she cannot show these were returned and they were not then you could counterclaim the cost of changing the locks which would be reasonable if she has a key and its whereabouts are unknown. You could consider mentioning this being made as a counterclaim in addition to your above defence if the matter proceeds to court.
Is there anything above I can clarify for you any further?
No thats very helpful. Thank you
A pleasure. I hope you are successful in resolving the matter swiftly.
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