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Joshua, Lawyer
Category: Law
Satisfied Customers: 26577
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I have a contract with a letting agent. I have just

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I have a contract with a letting agent. I have just discovered that their fees are payable the whole time my tenant lives at the property.
The agency found the tenant and for 2 years collected rents. I now self manage the property, issue AST, gas safety, maintenance etc. The agency has now asked me for 5% fees as the tenant is still at the property. I did not notice that on one document they listed fees if I used their management service and on another document, that I have to pay it even if I do not use their management service. I would like to have advise as it does seem unfair that they do absoolutely nothing and then at the year ask for £1300 +VAT

Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I ask was the term made clear (I appreciate you say you didn't notice it) on any heads of terms agreed with the agents or was it only buried in small print?

Customer: replied 1 year ago.
On page 26 of one document it mentions % and what they will do for that fee "Standard Letting", collect rent, orgainse AST, maintenance etc
on page 3 of a second document it says that the fees are due for the whole time the same tenant
"In return for Our services, You will pay KFH a fee which will be based on the commission rates set out in the Confirmation of Instructions
section and clause 2 of these Terms and Conditions.
You should particularly note that the fees for Letting and Renewal of Tenancies are payable not only for the Initial Period of the Tenancy,
but also for the whole length of time that The Tenant introduced by KFH, or the Occupant (as defined) remains in occupation of the
The management element will only be payable while We are instructed as the Managing Agents but You can terminate Our Management
Service at any time by giving KFH at least three months' prior notice in writing. However, in that instance Our letting fee will still be
payable in connection with any Renewals to the same Tenant or Occupant at the rate specified in the Confirmation of Instructions section.""In return for our service" they do not do provide any service for us.

many thanks. From what you say the charges are contained in the small print of their conditions, with no highlighting or other technique to bring the terms to your specific attention? Finally if I may for the avoidance of doubt, could you confirm you are not a commercial client - i.e. you are a private landlord.

Customer: replied 1 year ago.
Im a private landlord

Many thanks. If the agents are not managing the property, any clause in the terms and conditions which requires you to pay renewal commission or other fees indefinitely will normally be considered unfair and unenforceable under the Unfair terms in Consumer Contracts Regulations. There was a significant case of the OFT v Foxtons in 2010 which confirmed this position.

There are two caveats to the above. If the agents can show that you specifically agreed to such a term then it can be enforceable. It is not enough to point to their Ts and Cs. They must show that the specific condition on which they hope to rly was brought to your attention and you agreed it. Normally this will be done by having you initial such a condition they have brought out of the terms and listed clearly on any agreement. From what you say they have not done this.

The other situation which may be fair is a clause which provided for a lower rate of fee for two years following the installation of the tenant. Again if they cannot show you have agreed to this even this is vunerable, but it is less subject to challenge than an infinite liability for payment such as the condition here.

You may wish to point the agents to the above case and suggest to them that you will not be paying any further fees as the condition would appear to be unenforceable. You may wish to also ask for a refund of any previous fees you may have paid under such a condition. If you are unable to reach agreement, you can consider a formal complaint and if necessary escalate it to the dispute service they are required by law to be a member of. The dispute service Ombudsman can independently review the position and make a decision which is binding upon the agents though not you and the service is free.

Does the above answer all your questions? If it does, I should be very grateful if you would kindly take a moment to click a rating for my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer: replied 1 year ago.
ok i did initial the T&C but again read it as in return for our services, which i now do not use. I did for the first two years of the fixed contract and duely paid their fees. But when i renewed the AST directly with my tenant and advised KFH that I would now do everything myself, I thought that as I now don't use their Standing Letting Management, that I would not have to pay. I read the "in return for our service" being the key to what I pay

Your initialling the term is not helpful but the wording of the clause you initialled which you have posted above is sufficiently legalistic and unclear I think not to prevent the above defence. The burden is upon them to substantiate that you agreed to any potentially unfair term not for you to disprove it so your position is simply that you did not understand that your liability would continue beyond the initial fixed term and that they must prove that this was made clear to you and you agreed it. The complaints process to the Ombudsman is free and binding on the agent (though not you) so there is an easy risk free approach you can use to challenge the agents position. You have the option to proceed to court if you wish following the Ombudsmand decision thought the agent is bound by it.

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
thank you

many thanks. If I can assist any fruther as the situation develops, please do not hesitate to contact me.