How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ash Your Own Question
Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
75100385
Type Your Property Law Question Here...
Ash is online now

Our letting agent has broken a verbal agreement to re-let our

Customer Question

Our letting agent has broken a verbal agreement to re-let our property that we have vacated. We gave them notice that we would break at 6 months, the landlady agreed to this, they promised to re-market the property in a timely fashion. In 2 months they have shown the property to 3 people. The letting sign has fallen down outside the house, they have advertised the property only on one external website. They are still holding us liabe for the rent. What can we do?
Submitted: 1 year ago.
Category: Property Law
Customer: replied 1 year ago.
I have reviewed the legal stuff, I will copy and paste my research below
Customer: replied 1 year ago.
We gave ample opportunity to demonstrate due endeavour in re-letting the property since we gave notice of our intention to vacate the property on 30th December 2015,
1) The written contract contains no ‘entire agreement clause’ and therefore does not exclude the verbal agreements made prior to letting in which Sawyer stated their agreement to re-let the property in a timely fashion after a 6 month review with the landlady.2) The letting of the property was made by means of a misleading information and omissions contravening regulations 5, articles 2-6 of the Consumer Protection from Unfair Trading Regulations (2008). Regulation 8 of this act explicitly states that such practices are an offence.3) Sawyer has not complied with the code of practice issued by The Association of Residential Letting Agents despite displaying its membership on its website. This contravenes regulation 5, article 3(b) of the Consumer Protection from Unfair Trading Regulations (2008) which a company is legally obliged to follow if it represents itself as a member.4) Implied terms of service as outlined by the Supply of Goods and Services Act (1982) subject to the agreements made verbally and evidenced by the documented actions of tenants, landlady and letting agent, have not been honoured.5) Binding agreement on the consumer via misrepresentation of the terms of the contract constitutes an unfair term under the Unfair terms in consumer contracts regulations (1999)The legal basis for these statements and how it applies to this case is outlined below:
With respect to the validity of the contract:
In UK law, a written contract does not supersede a verbal contract and the verbal agreements that led to the signing of the contract unless the contract contains an ‘entire agreement clause’ to the effect that the written document replaces any previous agreements. An example is found below:This agreement contains the whole agreement between the parties in respect of the subject matter referred to and supersedes any previous understanding, arrangement or agreement between the parties. The parties have not relied upon any statement or misrepresentation which is not expressly incorporated into this agreement.In renting the property, assurances were given that a review of the tenancy would be made after 6 months and if we wished to leave the tenancy, we would be liable for rent until such time as the property was let. In order to persuade us that this would not be a problem Sawyer’s agents assured us that they would re-market the property and that it would be let quickly. This constitutes a verbal commitment on Sawyer’s part to undertake serious efforts to re-let the property in a reasonable and timely fashion.
While no documented evidence of this exists, evidence admissible in a court of law is the fact that this was agreed to by the landlady, a 6-month review took place and we vacated the property in good faith, giving the keys back to Sawyer in the process to facilitate viewings. We acknowledged as such in correspondence to Sawyer upon paying the rent for the month of February 2016. This was not contested.
In the 8-week period between giving notice to leave and the present, Sawyer have conducted only three viewings of the property. They have stated in correspondence that they were advertising only on one external property finding website, on their own website, and to their own database of potential clients. They have not produced evidence that they have made any more efforts to market the property and they have not shown that they are not prioritising the letting of other properties for which they are currently not receiving rental income.
The verbal agreement between all parties was the timely re-letting of the property. In this respect Sawyer made false assurances. A verbal agreement for a tenancy consists:
1) An offer
2) An acceptance
3) Some payment – known as the legal term consideration (Deposit paid)
This is a legally-binding agreement by freely-acting parties. It is not negated by a written contract unless this is specifically addressed in said written contract (which it is not).There are legal requirements to constitute a representation.
1. They may be oral or in writing, and conduct may also qualify.
2. They are usually statements made in respect to an existing fact and past event, and not statements of intention.
3. Statements of intention are promises relating to some future conduct and are generally excluded.
4. However, statements of future conduct can be seen to relate to a present intention
5. . For instance, acompany intending to supply goods in the future (where it has no ability to supply), or where a representation is made to supply in the future and ther
Customer: replied 1 year ago.
With respect to misleading information and omissions
We agreed to rent the property on the basis of assurances that re-letting would be quick and that although we expected to be liable for a short period of rental while new tenants would be found. At the time Sawyer omitted to state their comparatively sparse advertising coverage and misled us as to their ability to find tenants in a timely manner.
According to the Consumer Protection from Unfair Trading Regulations (2008) Part II, PROHIBITIONS:
A commercial practice is unfair if –
3(a) it contravenes requirements of professional diligence
3(b) it materially distorts or is likely to distort the economic behaviour of the average consumer with regard to the productRegulation 5 of this act concerning misleading actions states:A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or (3)
2)(a) If it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) (see below) or if its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise[Paragraph (4) states the matters referred to in paragraph 2(a) are: (with specific reference to this case]
b) the main characteristics of the product (i.e. we were sold an agreement that Sawyer would undertake to re-let the property quickly)
c) the extent of the trader’s commitments (Sawyer presented itself as a dilgent service we trusted as a member of ARLA to act in good faith)
d) the motives for the commercial practice commitments (Sawyer agreed to commit in order to close the deal)
e) the nature of the sales process (negotiations were made with the landlady via Sawyer and the outcome presented as a deal)
k) the consumer’s rights and the risks he may face (presented as ‘no worries, we will re-let the property, you won’t be liable for long’)Pargraph 4(b)
c) The risks of the product (as previous, financial liability downplayed)
g) after-sale customer assistance concerning the product (minimal or absent. Frequently-unanswered correspondence for which we have proof)
Customer: replied 1 year ago.
In this respect, had we known that Sawyer’s efforts to re-let the property would be minimal we would not have committed to the contract.Regulation 5, item 6 of the Consumer Protection from Unfair Trading Regulations (2008) deals with misleading omissions:
A commercial practice is a misleading omission if, in its factual context, taking into account of matters in paragraph (2) [detailed above] –
a) The commercial practice omits material information
b) The commercial practice hides material informationand as a result it causes, or is likely to cause, the average consumer to take a transactional decision he would not otherwise have taken.Paragraph (2) of item 6 concerning omissions outlines what was Sawyer’s responsibility at the time of agreement (and on an ongoing basis) to tell us:
a) All features and circumstances of commercial practice
b) Limitations of the medium used to communicate commercial practice (including limitations of space and time); and
c) Where the medium used to communicate commercial practice imposes limitations of space or time, any measures taken by the trader to make the information available to consumers by other means
As we agreed to a service as it was presented to us, omitting to tell us either just how lax Sawyer would be in re-marketing the property, or the hiding of their internal workings represents a contravention in the law.I would also point out that commercial practices such as this on the basis of misleading information and/or omissions constitute an offence under Regulation 8 of the Consumer Protection from Unfair Trading Regulations (2008 punishable by statutory fine or jail term.
Customer: replied 1 year ago.
With respect to ARLA
The Consumer Protection from Unfair Trading Regulations (2008) state that if Sawyer trades as a member of ARLA then its practices are misleading if –
Regulation 5 item 3(b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with if –
(i) The trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) The commitment is firm and capable of being verified and is not aspirational and it causes the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and all its features and circumstances.
Specific points from the ARLA code of practice whereby Sawyer has violated the code it claims to comply with are:
• Principle 3: To let and manage properties in an honest, fair, transparent and professional manner.
• Principle 7: To ensure all communications and dealings with clients and tenants are fair, clear, timely and transparent.
• Principle 8: To ensure that all relevant information is provided to clients and tenants, including publicising fees, prior to them committing to a transactional decision
• Principle 11: To behave ethically and responsibly at all times.The code of practice also states that an agent must (legally) comply with:
• Consumer Protection from Unfair Trading Regulations (2008)
• Unfair terms in consumer contracts regulations (1999)
• Supply of Goods and services act (1982)
• Unfair contract terms act (1977)
This document systematically examines Sawyer’s failings with respect to all of the above. As an agent operating under the ARLA standard, Sawyer placed itself in a position of trust but did not enter negotiations in good faith.With respect to Supply of Goods and Services Act (1982)
Article 13 of this Act (that Sawyer is bound to by terms of the ARLA code of practice) States:
In the contract for the supply of a service where the supplier is acting in the course of a business there is an implied term that the supplier will carry out the service with reasonable care and skill.
Article 14 follows with:
Where, under a contract for the supply of a service by a supplier acting in the course of a business, the time for the service [in this case the agreed re-letting of the property] to be carried out is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a reasonable time.
In this case Sawyer has failed to act with reasonable care and skill and has in fact neglected the implied terms of the agreement which, as stated earlier can be proven by the actions and correspondence of all parties and is admissible in law under a verbal contract. This is negligence of implied terms as outlined by the Unfair Contract Terms Act (1977) – another act which ARLA states is mandatory for its members to follow.
Customer: replied 1 year ago.
Regarding binding agreement as per the Unfair Terms in Consumer Contracts Regulations (1999)
Schedule 1 of this document which is key to the ARLA code of practice and is also found enshrined in UK law outlines the imposition of contractual terms that arise from pre-drafted contacts such as the one we signed for the property whereby:
Regulation 5(1) A contractual term that has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer
In essence, the pre-made contract made no mention of provisional negotiations and the terms of the let remained at 12 months. A negotiated term, in the contractual document, appeared as manifestly not negotiated. This causes a significant imbalance in rights and obligations to our detriment.
Terms of a contract (verbal or documented) which are outlined under schedule 2 of this act include:
2)(b) Making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone.
i)irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract.
o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his.
Put in terms of this case, the terms of this agreement prior to letting the property required us to continue making payment on the understanding that Sawyer would perform the duties of a respectable letting agent and deliver on their promise to market the property after we left. We had no realistic opportunity to become acquainted with Sawyer’s slow pace of marketing the property and we have honoured our agreement to continue paying rent whereas Sawyer has in no way honoured their commitment to promptly source new tenants for the property.
Customer: replied 1 year ago.
Essentially I would like to know if we have grounds for a legal case. The letting agent is stalling and trying to drag out the process by making us go through their internal complaints procedure. We want this resolved. We are, to be clear, paying our rent in a timely fashion and have made it clear to them that this is because we do not wish the landlady to suffer financially. We are not in breach of anything. Do we have to drag this through the Property Ombudsman and internal procedures or can we just take them to court?
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.How much is being claimed please?Alex
Customer: replied 1 year ago.
What we want is the deposit back and the 2 months rent we have paid since the letting agent has had sine 30th Dec to remarket the property. Total £2200 rent, I think the deposit is 1650. We are not seeking a load of compensation unless there is grounds to do so and it gives us leverage to make the agency settle.If I do accept the call service could it be within the next hour or two? I'm an A&E doc and I have to go to work from 1200-2200 all week.
Expert:  Ash replied 1 year ago.
Yes it will be now if you want it.Alex
Expert:  Ash replied 1 year ago.
You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.If the claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.Can I clarify anything for you about this today please?
Ash and other Property Law Specialists are ready to help you
Customer: replied 1 year ago.
thank you please can you call me on 07792 076388
Expert:  Ash replied 1 year ago.
I will call now.Alex
Customer: replied 1 year ago.
Thanks very much for your very helpful advice. I will bear you in mind if they continue to be difficult!
Expert:  Ash replied 1 year ago.
Indeed. Good luck
Customer: replied 1 year ago.
Hi Alex, please see the file enclosed. It contains a lot of inaccuracies and does not appear to understand what we are actually disputing. The thing about lowering the price in good faith took place AFTER we complained and threatened legal action. They also offer mediation services: Is this an admission of liability? Also, in terms of proof of a verbal contract I'm confident the landlady will testify to the arrangement and we have multiple emails to support this understanding on all sides. I think they are trying to scare us and don't seem to understand the message I gave them above. Finally, they state we have 14 days to respond to them. By what authority do we have to comply with that demand?
Expert:  Ash replied 1 year ago.
Mediation is not admission sadly and no, you dont have to respond accordingly.But I would try and resolve this if you can.Alex
Customer: replied 1 year ago.
Cheers Alex,We have not breached any of the terms on the written contract. When we chatted before I asked about the validity of a verbal contract evidenced by the fact that we vacated the property, gave the keys back, no longer have access to the place, the landlady agreed to 6 months and Sawyer assured us they would re-market the property in a timely way, therefore influencing our transactional decision. We have a 4 and a half month trip pre-booked which pre-dates the letting (March to August) which makes it unlikely we would have signed on for a 1 year contract or agreed to those terms. Also, it was my understanding that if you lie to sell someone something, that's illegal.Do we have anything to lose by pursuing a claim here? What do you mean by try and resolve this? There are points in their letter that are just patently untrue. Is the fact that in 9 weeks they have shown the property to 3 people evidence in our favour?Cheers,
Chris
Expert:  Ash replied 1 year ago.
No I dont think you have anything to lose. If any claim is £10,000 or below its a small claim anyway.Just because points are untrue does not mean its a fact.I would always try and resolve matters because Court can take around 12 months and you may not want the stress or headache
Expert:  Ash replied 1 year ago.
Can I clarify anything else for you?Alex
Customer: replied 1 year ago.
Thanks,I don't mind a lengthy battle but we may be out of the country for a while.... Thanks for your help.
Expert:  Ash replied 1 year ago.
Good luck and happy to help.Alex