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: 10915
Experience:  Solicitor with 5+ years experience
75100385
Type Your Property Law Question Here...
Ash is online now

My daughter has signed an Assured Shorthold Tenancy

Customer Question

Hello,
My daughter has signed an Assured Shorthold Tenancy Agreement for a 48 week Fixed term, for a furnished dwelling house - specifically for a room in a student house, for this coming September.
My daughter does not wish to take on the tenancy, so I am very keen to know what her liabilities now are. (NB. I was ask to be a Guarantor but didn't sign as I was very uncomfortable with the overall fairness of the contract).
My main grievance is that she was not advised at any time (verbally or in writing) to seek legal advice before signing the agreement; nor does the agreement make any reference to her right to cancel, nor does it expressly state that she has no right to cancel either. i.e. there is no break-clause, nor is there a statement of its omission.
I have done a little research into the workings of an off-premises contract under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, and note that the trader must give the information contained in schedule 2 of the regulations. Does Schedule 2 of The Consumer Contracts require the contract the either include the cancellation procedure; or if not, then expressly state its exclusion?
As an agent presenting a tenancy agreement to a prospective tenant does the lettings agent have a duty under the Unfair Terms in Consumer Contracts Regulations to explain the nature of the agreement to her before she signs, so she is able to understand her rights and obligations under the agreement. Is it not fundamental to ensuring the agent’s compliance with consumer law to explain to her how either party can end the tenancy, and what steps and formalities are required to do so?
Can I challenge the agent’s professional conduct under the Code of Practice of Residential Lettings Agents for not taking special care when dealing with a consumer who is clearly disadvantaged because of her age (18) and lack of knowledge; for not giving her clear and accurate information regarding circumstances under which she may cancel or terminate the arrangement; and for not actively flagging the significant tenancy conditions and terms for the letting, notably the circumstances in which she the applicant would have possible financial liabilities relevant to her withdrawal from the tenancy.
Further, is the agent in breach of the Consumer Protection from Unfair Trading Regulations for failing to give her the material information she needed in order to make an informed decision, particularly as this would have lead her to make a different transactional decision. The CPR provides that where a commercial practice is targeted at a particular group of consumers the 'average consumer' will refer to the average member of that group, not the average consumer generally. This is most relevant as the lettings business in question is directed predominantly at students. As such, how they deal with consumers should take account of factors that are characteristic of this group, such as limited knowledge of legal rights and a lack of experience.  The Lettings Company operates in a university town, therefore it deals with a lot of students, who are less familiar with the process of renting a property or their legal rights than older people with more experience of renting. The Lettings Company can foresee that it will market property to members of a vulnerable group, and as such I would suggest it is expected under the CPR to adjust its practices accordingly to address the vulnerabilities that are characteristic of that group. This they have clearly failed to do.
Furthermore, does the Consumer Rights Act provide that landlords and their agents should take care to treat tenants fairly in situations where the deposit is taken a long time before the tenancy is due to commence, as in the context of student lettings where it is many months between when the tenant looks for a property and they are able to move in, and where any number of subsequent factors might affect the ability to go ahead with the tenancy. Does the CRA considers it an unfair term (by creating a significant imbalance) to require a deposit that is non-refundable where there is a significant likelihood that the prospective tenant might have to pull out in circumstances where the landlord can still let the property to someone else without incurring any loss. Using such a term to generate a financial advantage can be considered an unfair commercial practice can it not?
It might be worth mentioning that the agent failed in its obligation to provided full details of the Deposit Protection Scheme within the minimum time stipulated (30 days) as required under Chapter 4 of the Housing Act 2004
A lot of questions I realize; though the fundamental question is: can my daughter walk away from this agreement with sufficient confidence that should proceedings be started against her, she will have sufficient legal standing to counter any action?
I expect you would need to see the actual Agreement before you cou
Submitted: 4 months ago.
Category: Property Law
Expert:  Ash replied 4 months ago.

Hello my name is ***** ***** I will help you with this.

For now please let me know where the agreement was signed, was it at the agents offices?
Alex

Customer: replied 4 months ago.
Hello. Thank you. She signed an electronic document via email
Expert:  Ash replied 4 months ago.

1. There is no right to suggest legal advice as to the contract. The law does not say that she needs to be advised or is it required.

2. She does have a cooling off period, but there does not need to be a notice of this. She is not purchasing goods on finance or at home, where a notice is required on the form.

3. The process you refer to is for goods and services, however this is a rental contract. However she should have been informed either in writing or on the contract she has a limited time to withdraw.

4. The unfair terms in consumer contracts regulations does not apply, as that was repealed by the consumer rights act 2015.

In any event there would be no obligation on the agent to tell her how to end the contract.

However if she is within the fourteen day period then she is entitled to cancel the contract without penalty. If it's been over 14 days and she wasn't advised that she could cancel the this cooling off period has not started and she can cancel.

Can I clarify anything for you about this today please?

Alex

Customer: replied 4 months ago.
Hello Alex.Thank you so much for your response. If I extract the positives, I understand that:She should have been informed either in writing or on the contract that she has a limited time to withdraw from the contract, and...as it has been over 14 days, and she wasn't advised that she could cancel, the cooling off period is deemed to have not yet started. Therefore she can cancel :)Is that the silver bullet?Further, please could you give me the relevant reference to the law governing this.Thank you so very much.Chris
Expert:  Ash replied 4 months ago.

Correct. It comes under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

Alex

Customer: replied 4 months ago.
I am delighted to read that you say she does have a cooling off period, and that she should have been informed of this, however please can you help me understand how it comes under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, as I can see that Regulation 6(1) (d) specifically excludes contracts for rental of accommodation for residential purposes from their scope? Thank you
Expert:  Ash replied 4 months ago.

She only rents a room. If it was the whole dwelling it would be excluded.

Does that clairfy? Alex

Customer: replied 4 months ago.
Hello Alex. As much as I really want to accept your advice, I am still not comfortable. Please can you give me a specific reference or case law to substantiate this. Thank you
Expert:  Ash replied 4 months ago.

99% of cases are not reported and therefore not recoded

This would be a District Judge decision in the County Court and therefore not recorded. Any decisions made below High Court level are not binding in any event.

In any event you would also have a claim for fairness of terms. The law says:

(1) A contractual term which 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.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

Does that clarify? Alex

Expert:  Ash replied 4 months ago.

If this answers your question could I invite you rate my answer 3, 4 or 5 starts before you leave today.

I am only paid for my work on this question if you rate my answer, using the star system at the top of the screen. Please do not forget! Thank you.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Customer: replied 4 months ago.
Good morning Alex. Thank you for sticking with me on this.
I refer to your comment "She only rents a room. If it was the whole dwelling it would be excluded".
Please tell where the law states or implies that a single room (plus use of common areas) is not to be considered under Consumer Contracts Regulation 6(1) (d) . If it does not, on what are you basing you advice? Please can you clarfy? Thank you
Expert:  Ash replied 4 months ago.

Thats because it was the intention of Parliament to mean a whole property for rented accommodation

This is her ONLY angle, therefore I have considered the law and this is the last thing she can argue.

There is no other way she can get out of this save for the above.

This would mean she would be liable for the whole rental period.

Therefore I have considered all options and this is the only I have been able to find given her circumstances

Does that clarify? Alex

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Remus2004

    Remus2004

    Barrister

    Satisfied Customers:

    2427
    Over 5 years in practice.
< Last | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Remus2004's Avatar

    Remus2004

    Barrister

    Satisfied Customers:

    2427
    Over 5 years in practice.
  • http://ww2.justanswer.com/uploads/TG/TGraham12/2012-7-17_81212_bigstockBusinessHandshake508163.64x64.jpg Thomas's Avatar

    Thomas

    Solicitor

    Satisfied Customers:

    414
    UK solicitor holding an England and Wales practising Certificate.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    42
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law.
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    4708
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/AS/Aston Lawyer/2013-10-8_19517_JAPROFILEPICTURE.64x64.jpg Aston Lawyer's Avatar

    Aston Lawyer

    Solicitor

    Satisfied Customers:

    1823
    LLB(HONS) 20 years of experience in dealing with Conveyancing and Property Law
  • http://ww2.justanswer.com/uploads/CH/chathamchamber/2011-4-24_191833_1.64x64.jpg chatham-chamber's Avatar

    chatham-chamber

    Solicitor

    Satisfied Customers:

    828
    LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)
  • http://ww2.justanswer.com/uploads/CL/clairep80/2013-8-25_191218_dreamstimexs267279822nd.64x64.jpg Clare's Avatar

    Clare

    Solicitor

    Satisfied Customers:

    241
    I have been a solicitor in High Street Practise since 1985 with a wide general experience.
 
 
 

Related Property Law Questions