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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45324
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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An agent is refusing to my deposit for a holiday rental

Customer Question

An agent is refusing to refund my deposit for a holiday rental booking later this year. We stayed in the same property in April but cancelled our second booking based on our experience there. The property is in Tenerife but the agents who took the money are a UK-registered limited company. They did not make terms and conditions of booking available at the time nor did they give me a written rental agreement. They state they won't refund because of what it says in the terms and conditions. The property was also not fit for purpose - the TV channels they said were there could not be watched because of terrible or non reception, the hot tub was dirty and broken and the place was grubby. We paid for our April holiday in full and are only claiming back our deposit for the future booking.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have you seen the terms and conditions they try and rely on? If so, when were they made available to you?

Customer:

Hello ***** the terms and conditions to which they refer have never been made available to me.

Customer:

Hello. I'm just confirming that you received my answer to your question last night and that you will be responding again soon?

Ben Jones :

Hi, apologies for only getting back to you now. The system had not informed me that you replied and I only saw this by chance today.


 


If you were not provided with any terms and conditions prior to the booking and they are now trying to rely on such terms to argue that they stated no refund provision existed, then it would not really be possible for them to do so. Any terms they wish to rely on must be terms which you were aware of at the time of booking and which would have enabled you to make a decision at the time as to whether it is worth making the booking and be bound by these terms or not.


 


However, by placing a deposit and making the booking you have entered into a legally binding contract for the holiday. You have indicated your willingness to book by placing the deposit and would be legally bound by this commitment. You may only cancel the contract if you can show that the other side had acted in breach of contract or had misrepresented its position in some way. Just because you have read a bad review since booking does not mean they have acted in breach of contract. You will have to show that what you were promised did not match what you received. Unless you have direct evidence of this and can show that it is impossible to rectify things by the time you get there, then you cannot really claim there was such a breach. As such, issues like these mainly become obvious once you have been on the holiday and experienced the place and facilities rather than beforehand.


 


Lastly, if they are trying to keep the deposit they can only do so to cover genuine losses suffered as a result of your cancellation. For example admin or other fees incurred which they cannot get back or the loss of business if they cannot get a replacement for your booking. However, if no such losses have been incurred it would be expected that they should refund your deposit, otherwise it would be seen as a penalty clause which is unlawful.


 


For the time being you can try and follow these steps to attempt and get your deposit back:


 



  1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.

  2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

  3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.


 


Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.


 


Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Hi Ben. Thanks for your detailed response. I suppose I'm a bit of a dilemma from what you say. The fact that their terms & conditions were never made available to me, including details of my right to cancel, is in my favour though as you say I've entered into some form of contract with them for the future booking by paying a deposit. However, we did stay in their property in March/April and paid in full and have not sought a refund/discount for that stay, simply a refund of our deposit for the future booking. I guess we'll take our chances through the small claims court. I've already sent them two emails trying to conciliate and advising them that I'll go to court if they don't pay up. I can see no reason why the need to keep my £500 deposit given I've just paid them several hundred pounds for my recent stay. Many thanks for your help. Regards, ***** *****

Ben Jones :

Yo are welcome, all the best

Customer:

Cheers

Ben Jones :

.

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45324
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 3 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Dear Ben



All done thanks and the information has enabled me to make a decision. I have rated your service as excellent so it should all now be on the system.


 


Many thanks


 


George

Expert:  Ben Jones replied 2 years ago.
Many thanks George, all the best
Customer: replied 2 years ago.

Ben


 


Just a footnote. The agent has offered to refund £370 of the £500 deposit, this following the threat of court action. I've accepted as I've to weigh up that the chances of winning in court are not guaranteed so job done! Thanks for your help.


 


Regards, George

Expert:  Ben Jones replied 2 years ago.
Hi George, thanks for the update and glad to hear you have reached an outcome you are satisfied with. All the best

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