Agency will not refund fee

[sezchwarn]

Hello, any advice would be most welcome:

My girlfriend and I payed an agency £250 to take a flat we wanted to rent off the market. After the agreement they phoned and asked if my girlfriend was continuing her current employment when moving- we told them she was planning to get other employment.
They then said shed need a gaurantor and also for us to pay 3 months rent upfront, which we cant.

This was not part of the original agreement, and they are refusing to pay the fee back, saying its our fault for not telling them that my girlfriend was not continuing employment.

We believe this to be unreasonable as we were never asked prior and argue that its their responsibility to ask for such information rather than make assumptions.

We have a copy of the referees asked for and have good reason to believe these extra conditions are not standard practice, but just what the Landlord wanted.

Where do we stand with regard to getting this fee back, anyone know?
would it be worth pursuing court action?

Potential Problems:
1) We have signed a form giving details of information and i think agreeing to rent the property (do not have a copy), but have not signed the actual tenancy agreement.
2) We did not pay the deposit on time (4th April), due to them stipulating the extra clauses, which we could not meet, hence believing the deal was off.
3) They verbally termed it as agency fee rather then holding deposit.
4) We have nothing in writing saying its refundable

Thanks for any help from ye knowledgable people out there...

[blacksheep1979]

Did you initially receive any documentation/notification of what the deposit was going to be?

[sezchwarn]

Well, we were verbally told the amount, but were not given any documentaion stating what it was for, no. Only afterwards. what does this mean?

[rosysparkle]

As far as I can see this was never called a holding deposit, it was an agency fee. This will take the property off the market while the references are being done, but if you fail the refs or change your mind, it's not generally refundable.

Your girlfriend will have failed her employment references due to not having an employment contract greater than the length of the initial fixed term of the proposed tenancy, so if you want the property she will need to pay rent upfront or have a guarantor. If you can't/won't do that, you will lose the application fee.

[sezchwarn]

Thanks for your replies...

Ok, but firstly it was never stated that the employment would have to extend beyond the fixed term in order to be 'satisfactory'. Dont they have to make this explicit?

Secondly, we were told that if the references failed we would be refunded the money. Although this was only verbal, so prob doesnt mean much does it?

Thirdly, my girlfriend can provide a gaurantor, but the Landlord, via the agency, is saying he wants 3 months upfront as well as the gaurantor. Doesnt this mean she hasnt failed her reference and that they are just making up extra conditions? I mean what if they turned round and said ok, you have to pay us 6 months upfront and provide 100 character references? you could make a mint out of people that way- there must be a law against it surely.

Fourthly, i know its illegal for agencies to charge a fee for 'registration' or 'application' as you termed it. All they have done so far (to my knowledge) is send out four letters- they cant have drawn up the tenancy agreement as the references havnt been approved, right? If so couldnt we argue on the grounds that the fee is excessive or at least that they havnt provided all the services and so we are entitled to some of the money back?

Finally, we never agreed, verbally or otherwise, to pay for any of their 'services', and besides most of them ie tenancy agreement havnt been provided.

What does this mean?

[rosysparkle]

It is illegal for agencies to charge a fee for registration. That isn't the case here as far as I can see from what you have posted.

It is not illegal for an agency to charge a fee for an application for a particular property. In fact such application fees are standard and amongst other things, they cover the time and expense involved in processing an application and doing the referencing.

I don't know what refs you have had done or which reference agency has been contracted to do them, so I can't comment on whether the stipulation of a guarantor + money up front has come from the landlord or from the refs.

[sezchwarn]

Ok, i understand. But do they not have to make their conditions explicit for what is 'satisfactory' and that the fee wont be refunded?
Secondly, i know that the 3 months at least is a stipulation of the Landlord- they admitted it.

[rosysparkle]

Yes, they should have told you that the fee would be non-refundable. We tell applicants verbally when they apply, and it's made clear in the notes that accompany the application form. Unfortunately, it's my experience that applicants sometimes don't listen, and don't read the notes, as we occasionally have failed applicants who expect the fee back despite being told explicitly that it won't be refunded in case of failed refs or if they change their mind.

Your partner would need satisfactory employment refs and if she was leaving her job, she wouldn't have them -so she would need a guarantor and/or money up front.