Unfair Contract Terms In Consumer Contracts Regulation

[MarkieMark]

Something that we should be all aware of:-

Did you know that the Unfair Contract Terms In Consumer Contracts Regulation 1999 applies to contracts relating to property purchases.

Since case OFT case back in 2003 in the High Court.

This would mean any consumers who have purchased new property new or old can challenge any unfair term. There are so many unfair contracts drawn up by the legal profession.

I know in my contract when I purchased a new home the solicitors who drafted the contract took away many of my legal rights.

DID YOU KNOW SOLICTORS MAYBE BE NEGLIGENT IN ENTERING YOU INTO A CONTRACT WHICH IS UNFAIR.

[Vulture_Bank]

Originally Posted by MarkieMark

Something that we should be all aware of:-

Did you know that the Unfair Contract Terms In Consumer Contracts Regulation 1999 applies to contracts relating to property purchases.

Since case OFT case back in 2003 in the High Court.

This would mean any consumers who have purchased new property new or old can challenge any unfair term. There are so many unfair contracts drawn up by the legal profession.

I know in my contract when I purchased a new home the solicitors who drafted the contract took away many of my legal rights.

DID YOU KNOW SOLICTORS MAYBE BE NEGLIGENT IN ENTERING YOU INTO A CONTRACT WHICH IS UNFAIR.

see

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Re

[Aequitas]

I think you are forgetting a few things. In the Regulations:

"seller or supplier" means any natural or legal person who, in contracts covered by these Regulations, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned

"consumer" means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession

A contractual term which has not been individually negotiated shall be regarded as unfair if...

This means that the Regulations do not apply if the buyer is a company or acting in the course of a business nor do they apply if the seller is not acting in the course of his business. This rules out all commercial property and any residential property where the seller is selling his home.

That potentially leaves new houses sold by developers. In those cases we need to ask: was the unfair term individually negotiated? What often happens is that the developer provides a contract that is described as a "draft contract" but is accompanied by a statement that no amendments are permitted. That leaves the solicitor in the position that he has to tell his client that the contract is "take it or leave it". If the solicitor explains the contract in full pointing out the unfair provisions and the client goes ahead anyway, the solicitor cannot be negligent. Now, the whole point of the Regulations is to protect consumers in situations where they do not take legal advice. Is it reasonable that a buyer who has had the benefit of legal advice but decided to proceed should have the protection of the Regulations? The Regulations say they apply where the terms have not been individually negotiated, but does that mean that they apply where the terms presented are accepted with legal advice and there was an opportunity to amend them, even though it was stated that no amendments would be accepted - in practice amendments will are often accepted if pressed?

I have not had the benefit of seeing the case to which you refer and it may be that it answers some of the points I have addressed. Do you have a link?

I have a bit of a problem with the Regulations. I approve of them thoroughly, but they do not sit very well with contracts relating to the sale or creation of interests in land. They are designed to cover the "small print" in contracts relating to the sale of goods and the provision of services such as holidays, hotels and double glazing. They need to be disapplied to the sale of houses and residential tenancies and new "tailor-made" regulations drawn up to deal with property matters.

[MarkieMark]

Just like to point out that in any of the house purchases I have made no solictor has gone through the terms and conditions with me.

I remember reading a case where it applies to house purchases. The OFT were the interested parties....I get back to you with the case no.

[MarkieMark]

Please click on the link below:-

London Borough of Newham v Khatun & Ors [2004] EWCA Civ 55 (24 February 2004)

[MarkieMark]

Originally Posted by Aequitas

I think you are forgetting a few things. In the Regulations:

"seller or supplier" means any natural or legal person who, in contracts covered by these Regulations, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned

"consumer" means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession

A contractual term which has not been individually negotiated shall be regarded as unfair if...

This means that the Regulations do not apply if the buyer is a company or acting in the course of a business nor do they apply if the seller is not acting in the course of his business. This rules out all commercial property and any residential property where the seller is selling his home.

That potentially leaves new houses sold by developers. In those cases we need to ask: was the unfair term individually negotiated? What often happens is that the developer provides a contract that is described as a "draft contract" but is accompanied by a statement that no amendments are permitted. That leaves the solicitor in the position that he has to tell his client that the contract is "take it or leave it". If the solicitor explains the contract in full pointing out the unfair provisions and the client goes ahead anyway, the solicitor cannot be negligent. Now, the whole point of the Regulations is to protect consumers in situations where they do not take legal advice. Is it reasonable that a buyer who has had the benefit of legal advice but decided to proceed should have the protection of the Regulations? The Regulations say they apply where the terms have not been individually negotiated, but does that mean that they apply where the terms presented are accepted with legal advice and there was an opportunity to amend them, even though it was stated that no amendments would be accepted - in practice amendments will are often accepted if pressed?

I have not had the benefit of seeing the case to which you refer and it may be that it answers some of the points I have addressed. Do you have a link?

I have a bit of a problem with the Regulations. I approve of them thoroughly, but they do not sit very well with contracts relating to the sale or creation of interests in land. They are designed to cover the "small print" in contracts relating to the sale of goods and the provision of services such as holidays, hotels and double glazing. They need to be disapplied to the sale of houses and residential tenancies and new "tailor-made" regulations drawn up to deal with property matters.

Unfair terms cannot be enforced.. you only have to see the number of cases in the court room today. My only concern is why is there a law who kicks these people who draft unfair contracts..???

[Aequitas]

The case did not specifically relate to the sale of houses, but to the provision of accommodation to the homeless. All the case said was that the Regulations apply to land. There is nothing in the case which requires me to revise anything I said above.

[MarkieMark]

Please see the below:-

[MarkieMark]

Property Law UK

Unfair contract terms


Application to residential tenancies

London Borough of Newham v Khatun
[2004] EWCA Civ 55

The Unfair Contract Terms Act 1977 does not apply to tenancy agreements and other agreements relating to land (Electricity Supply Nominees v IAH Group [1993] 3 All ER 372).

There has been some debate as to whether or not the Unfair Terms in Consumer Contract Regulations 1999, which relate to the seller of goods and supplier of services, apply to contracts relating to land. The OFT has been of the view that the regulations do apply and has been busy taking steps to ensure that various residential tenancy agreements comply with them (see below). This case confirms that the OFT is correct.

Homeless persons who rejected particular accommodation offered to them by the defendant housing authority brought the claim. There were a number of complaints but one of them was that the tenancy agreement in respect of the accommodation offered did not comply with the regulations. The OFT was made an interested party and took part in the proceedings. Specifically the court held that:

• The 1999 Regulations and the Council Directive 93/13/EEC apply to contracts relating to land, including tenancy agreements. A broad, purposive method of interpretation was used in coming to this conclusion.
• The regulations and the Directive apply to public authorities notwithstanding that the activities they are engaging in are carried out in discharge of a statutory obligation to provide housing although this factor might well be relevant when considering the question of fairness.
• The defendant as landlord was a supplier
• A tenant, who enters into the tenancy agreement for the purpose other than his trade, business or profession, is a consumer.

[Aequitas]

I do not dispute anything in the last post. What I am simply saying is this: the UTCCR can only apply to the sale of property where the seller is in the business of selling property and the buyer is an individual, and even then there has to be doubt if they apply if the buyer is legally represented and accordingly, through his legal representative, had the opportunity to challenge any potentially unfair terms.

[MarkieMark]

Thats right... but is a solictor enters a consumer into a contract without informing the consumer or making it clear to him the terms he/she could also be negligent.

My only concern is the with the number of house purchases I have made no solicitor has gone through the terms with me.. only when I had reasearched various aspects of the law I had found that my solicitor could be negligent...

Any lets see what happens on my next move.......

[gyzmo]

Ooops! Talking about wrong legislation!