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Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I have a probelm with a clause in a foxtons contract could you give some assistance a

Customer Question

Hi, I have a probelm with a clause in a foxtons contract
could you give some assistance about that?
My issue is that Foxtons want to charge me £1450 for leaving the lease early as a 'pro-rata' commission and deduct that directly from me bond with the landlord.
The situation is this, 11 months into my lease I need to move flat due to financial distress. I gave the proper notice and a new tenant has been found, but now they are calling up clause 19.2 which reads;
"If the tenant vacates prior to the end of the term, the tenant will remain liable to pay rent until the term expires or the property is re-let which ever is earlier. Shoudl the property be re-ley during the fixed term, the tenant will be responsible for the repayment of any pro-rata commission fees that have been or will be incurred by the landlord for the unexpired portion of the tenancy at a rate of 11%
Submitted: 2 years ago.
Category: Property Law
Customer: replied 2 years ago.
This doesn't seem right and seems it contradicts itself or maybe I'm confused, but I feel like I should have to pay this extra debt. Am I right about that?
Customer: replied 2 years ago.
I have attached the contract with the clauses in section 19 concerning ending the tenancy.
Expert:  Ash replied 2 years ago.
Hello my name is ***** ***** I will help you with this.
How long was it empty for?
Customer: replied 2 years ago.
So after a phone call with the land lord, the commission covers until may 2016, which he hasn't lost to Foxtons. Instead I am paying for a commission that hasn't been lost by him to foxtons, but instead it has been rolled over to the new tenants that move in on the 13th oct 2015. I move out on the 12th and gave notice on 27th aug. so during the notice period, a new tenant was found.
Customer: replied 2 years ago.
It hasn't been empty, nor will it be. I move out, the next day the new tenant moves in
Customer: replied 2 years ago.
Am I wrong in thinking this is a money making exercise and I'm not covering any losses or loss of income for the LL?
Expert:  Ash replied 2 years ago.
Ok. Technically you are liable. But you could argue that they are in breach of Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 which states:
5.—(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.
So whilst you are liable you can argue this.
Can I clarify anything for you about this today please?
Customer: replied 2 years ago.
How would I send that back to the letting manager?
I am definitely going to argue this point, it sounds unfair and unnecessary. The landlord isn't at a loss, he hasn't paid any more commission to the agent and the existing commission is still in place just with a different tenant, and yes no terms could be negotiated in the contract. It was a 'accept the contract or lose the flat' response.So what would be the best way to respond / pursue this?
Expert:  Ash replied 2 years ago.
Exactly. If it went to Court a Judge would only want to put the landlord back into the same position had the breach not occurred. This means they would be profiting from the breach - this is not allowed.
Just email it back to the Letting Manager and say if you want it, take me to Court.
Customer: replied 2 years ago.
Ok, sounds reasonable.Just to surmise and make sure I have got the order of events properly described to you and that understanding is correct in relation to the outcome you have concluded, this is what has happen;
-LandLord paid commission to foxtons until 26th May 2016
-I ended tenancy, but commission is to remain in place when new tenants move in on 13th Oct 2015. Commission will then be paid to foxtons from the Landlord from 27th May 2016.
-Landlord hasn't paid any extra commission for the period up to 26th May 2016
-I am to reimburse the commission up until the period ending 26th May 2016.Does the conclusion we have come to fit those events in your opinion?
Expert:  Ash replied 2 years ago.