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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Question Watts preferably as she answered previously.

Resolved Question:

Question Watts preferably as she answered previously. If she's not available I'd prefer someone else to answer this evening, thanks.
Alex,
Brief summary:
Noisy holiday last August in the same place we'd rented consecutive years but good relations with landlady or so we thought. Landlady surprisingly offered us 2 weeks in 2015 free. We offered to pay half but she declined. Alerted in October to possible building work in adjacent property- planning permission going through now. We accepted the possibility which is still just that.
She wrote to us 2 weeks ago saying that, in her opinion, as she'd decided that we don't mind noise, she was rescinding the offer and asking us to pay- 2 week price £2450.
We wrote to her by recorded delivery asking to honour her agreement or pay us the amount that we would have to pay equivalent holiday- £2450. Otherwise we would take the matter to court.
She replied today:
However she places a couple of conditions and I would like to make sure that we don't open ourselves up to further unreasonable behaviour from her.
She writes:
'Without Prejudice'
'I am prepared to let you have those two weeks free of charge as we have previously agreed but stipulate that I will require a security deposit cheque from you for £100 (as you have paid in previous years as per the terms of the agency you booked with). As in previous years this will be refunded to you by second class post after inspection that there is no damage of any kind to my cottage or its contents. A full inventory will be made and left .
The offer of 2 (two) free weeks is made on the basis that you are fully aware that there could be serious noise levels directly affecting you and your family during your stay and that you are also fully aware that I will have no control whatsoever on timings of building noise or who makes it, and that you understand therefore that I will not accept any complaint from you during the two weeks...
Based on your signed acceptance of the above stipulations, terms and conditions, I can let you have those two weeks as previously agreed at no charge. I look forward to receiving your security deposit cheque within the next 14 days (as of today's date) along with your signed and dated copy of this letter attached. If not received within this time scale, then my offer made herein will be rescinded and you may take matters further if you so wish.'
My questions are:
1) How reasonable is it to suddenly demand our deposit cheque over 6 months before we arrive? Previous conditions were a £50 security deposit cheque 6 weeks prior to arrival. The first two years it was returned uncashed and last year when we booked privately with her, she didn't ask us security cheque. In principle we accept that it's reasonable to give her a security cheque but worry that she'll try to pull another fast one.
2) Is it reasonable to state that she can have our cheque now on the strict condition that it is held in abeyance until we leave the property. Should it be cashed in advance we will regard that as theft. What are our rights in this regard?
Previously the security deposit was £50 and not the £100 though inflation and all that. Here's what she wrote 3 years ago
> Could you also send me a £50 security deposit cheque
>(mentioned in my email
>I don't cash this but hold it
>against damages or
> towels missing, etc etc -
3) Her suggestion that we can't complain to her about the neighbour's noise is acceptable but her suggestion that we sign a piece of paper that says that she will not accept any complaint to her is wholly unreasonable. How do we address all this within the 2 week window she has now stipulated?
5) What does without prejudice actually mean? Do we still need to wait letter that's not 'without prejudice'? And if we don't reply within the 2 weeks presumably she can't rely on this 'without prejudice' letter either in a court should we need to take the matter further?
A bit of clarification and simplification would be helpful. We're generally happy to accept but just want to dot the i's and cross the t's as we no longer trust her.
Best regards,
Antony
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

and thanks me again.

Alex Watts :

I am about to go to bed, may I pick this up tomorrow morning?

Customer:

Yes, sure.

Customer:

I'll be about tomorrow as well,

Customer:

Thanks.

Alex Watts :

Great, speak to to you then. Night!

Alex Watts :

In the contract does it say when she needs to get the deposit by?

Customer:

There is no written contract year other than the texts and emails previously mentioned.

Customer:

There was no date stipulated on previous cheques but we usually sent it a couple of months before arrival. Just to clarify: it's not a deposit but a security cheque in case further cleaning is required.

Alex Watts : Ok. Well can they ask security cheque?
Alex Watts : yes - because this is a new contract.
Alex Watts : the landlord can out down whatever terms they want, you are free to accept or reject these terms.
Alex Watts : It seems to me that each year there is a new contract, rather than a rolling contract.
Alex Watts : Therefore in theory the terms can be amended each year.
Alex Watts : there is a misconception about without prejudice letters. Only if they contain an offer can they not be disclosed.
Alex Watts : If it's just general chit chat then it does not come under without prejudice rotection
Alex Watts : protection
Alex Watts : its only an offer that gets protection
Alex Watts : Can I clarify anything about this today please?
Customer:

,

Customer:

, Some of my questions haven't yet been answered. I'd appreciated your thoughts on the legality of a pre-condition in a contract that no complaints will be accepted on any subject. Am I right that it is simply unreasonable to place such a precondition? What are our legal rights in terms of pre-cashing of a security cheque which is explicitly to cover damage or loss during our stay?

Alex Watts :

1. That is not legal. The term is unreasonable. In that case attention should be drawn to it. If not, it can't be enforced.

Alex Watts :

2. If there has been damage you are entitled to cash a cheque to cover this. This is because if damage has been caused then it is breach of contract and/or an offence under the Criminal Damage Act

Alex Watts :

Does that clarify?

Customer:

1. Can I just clarify that you're saying the blanket precondition of no complaints is unreasonable? 2. Yes, if there is damage we would expect the cheque to be cashed after our departure. The question is: What would be our rights should she try to cash a cheque before our arrival - a cheque which is explicitly to cover damage or loss during our stay?

Alex Watts :

1. Correct

Alex Watts :

2. Yes indeed. She should not cancel it before arrival ONLY if it is damage during the stay

Alex Watts :

Does that help?

Customer:

Yes, that's great thanks.

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