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lawdoctor

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  1. SORRY MEANT TO POST AS A NEW THREAD. Hi all Here is post i posted over one year ago and a post on PAINSMITH'S SOLICITOR's blog. To my mind this is the first court decision made under these regulations. "ESTATE AGENTS BE WARNED CANCELLATION NOTICE REQUIRED" "Yes it is a contract law matter. For this contract to be legally enforceable you must have been given a NOTICE OF RIGHT TO CANCEL IN THE PRESCRIBED FORM contained in the written contract. Failure to provide this mandatory written notice render's the contract unenforceable in law. The relavent legistration is The Cancellation Of Contracts Made In A Consummers Home Or PLace Of Work Ect, Regulations 2008 SI 2008 NO.1861 I am of course replying to your post on the understanding that you were not given a cancellation notice--------- I have yet to see an Estate Agents marketing contract that complied with the law." 20 March, 2011 • 23:40 0 Cancellation Notice In a recent case in Watford county court an agent sought his commission for the successful sale of a property in October 2009. The Defendant defended the claim on the basis that no Cancellation Notice in the prescribed form pursuant to the Cancellation of Contracts in a Consumer’s home or Place of Work etc Regulations 2008 had been served. In response to this defence the agent was relying on schedule 3 of the Regulations which excludes certain contracts from the Regulations. One such contract is for the sale or rental of immovable property. However, the court held that the contract entered into by the parties was not a contract for the sale or rental of immovable property but one of marketing and as such schedule 3 did not apply. The court also held that this was a commission contract and therefore caught by the Regulations. Therefore where no Cancellation Notice had been provided then pursuant to clause 7(6) the contract is unenforceable. The agent’s case was dismissed. Thank you to Mr Kennedy who brought this case to our attention. LAWDOCTOR.
  2. HI ALL Here is post i posted over one year ago and a post on PAINSMITH'S SOLICITOR's blog. To my mind this is the first court decision made under these regulations. "ESTATE AGENTS BE WARNED CANCELLATION NOTICE REQUIRED" Yes it is a contract law matter. For this contract to be legally enforceable you must have been given a NOTICE OF RIGHT TO CANCEL IN THE PRESCRIBED FORM contained in the written contract. Failure to provide this mandatory written notice render's the contract un enforceable in law. The relavent legistration is The Cancellation Of Contracts Made In A Consummers Home Or PLace Of Work Ect, Regulations 2008 SI 2008 NO.1861 I am of course replying to your post on the understanding that you were not given a cancellation notice--------- I have yet to see an Estate Agents marketing contract that complied with the law. 20 March, 2011 • 23:40 0 Cancellation Notice In a recent case in Watford County Court an agent sought his commission for the successful sale of a property in October 2009. The Defendant defended the claim on the basis that no Cancellation Notice in the prescribed form pursuant to the Cancellation of Contracts in a Consumer’s home or Place of Work etc Regulations 2008 had been served. In response to this defence the agent was relying on schedule 3 of the Regulations which excludes certain contracts from the Regulations. One such contract is for the sale or rental of immovable property. However, the court held that the contract entered into by the parties was not a contract for the sale or rental of immovable property but one of marketing and as such schedule 3 did not apply. The court also held that this was a commission contract and therefore caught by the Regulations. Therefore where no Cancellation Notice had been provided then pursuant to clause 7(6) the contract is unenforceable. The agent’s case was dismissed. Thank you to Mr Kennedy who brought this case to our attention. LAWDOCTOR.
  3. I totally agree Planner could you see about getting this post stickied. I do not vist this site these day's, just thought this might help the forum. Regards. Lawdoctor.
  4. COURT OF APPEAL TENANCY DEPOSIT DECISION At 0945 this morning, 11 November 2010, the Court of Appeal handed down its judgement in the two conjoined cases of Universal Estates v Tiensia and Honeysuckle Properties v Fletcher. The decision was a majority decision of Lord Justices Rimer and Thorpe, with Lord Justice Sedley dissenting. Facts The facts in the two cases were as follows. In Universal Estates the tenant was taken to Court for for possession for arrears of rent. The possession claim was adjourned after she indicated her intetnion to counterclaim, although that counterclaim was not for an unprotected deposit. The deposit was then registered with MyDeposits but it was, of course, late, more than 14 days from the date of receipt. The High Court has held, in the case of Draycott v Hannells Lettings, that registration more than 14 days after receipt of the deposit cannot be penalised. However a breach of the initial requirements of the relevant deposit scheme can incur the penalties and it was argued in Universal Estates that the MyDeposits scheme had such an initial requirement. In Honeysuckle a claim for possession for rent arrears was also commenced. The tenant’s counterclaimed on the basis that the deposit was not registered. The deposit was protected before the hearing of the matter by the Court, again with MyDeposits. Therefore the issues before the Court of Appeal were whether it was permissible to protect the deposit more than 14 days after its receipt and at what date there should be a consideration of the protection status of the deposit, at the date of issue of proceedings or at the date of the Court considering the situation at a hearing. Decision In short, the Court considered that the High Court had decided correctly in Draycott v Hannells and that late protection is acceptable. Where the Court of Appeal has gone further is that it has ruled that provided protection has been done, and the correct information provided, before the Court comes to consider the matter at a hearing then that is acceptable, even after proceedings have been issued for non-protection. Therefore the landlord’s deadline for compliance is the Court hearing itself and not the date by which proceedings have been issued. The Court did hold that if a tenant is compelled to issue proceedings to force the protection of a deposit then they are probably entitled to their legal costs in so doing. It should be noted here that the Court emphasised the importance of pre-action conduct and discouraged any attempt to ‘ambush’ landlords by issuing proceedings for an unprotected deposit without writing to them first. The Court further held that no scheme can impose an initial requirement that a deposit must be protected within 14 days, a failure to adhere to which will allow a tenant to claim against the landlord. Therefore the current imposition by The Dispute Service scheme of a requirement to register within 14 days is no more than an administrative requirement for that scheme and registrations with that scheme made after 14 days are not invalid for the purposes of tenancy deposit protection legislation although the scheme may consider them violations of its rules and may therefore adjudicate on the deposit in a manner that is against the landlord’s interests. The Court made no comment on what the correct position should be if the deposit is not protected until after the tenancy has ended. This remains a live issue and one which must be considered. All three judges commented that the interpretation which they have been forced into is totally unsatisfactory and they found it hard to believe that this is what Parliament intended when it made the legislation. The consensus certainly appeared to be that the legislation is now toothless and largely without value. The onus now seems to be on Parliament to consider reform of the legislation as a matter of urgency to restore a proper balance. FULL TEXT OF DECISION Full text of decision. LAWDOCTOR
  5. The two conjoined appeals of Universal Estates v Tiensia and Honeysuckle Properties v Fletcher were heard by the Court of Appeal on 7 May 2010. These are both appeals relating to the tenancy deposit protection provisions introduced by the Housing Act 2004. The judgement has been reserved and we are informed that further questions were asked of the various parties involved fairly recently. As the Court of Appeal is now in recess until 1 October there is now unlikely to be a any decision in these key cases until after that date. lawdoctor.
  6. Hi xoAmyox Do you know who Judge Hickman is? I quote your statement above "...again only his opinion...", Judge Hickman is the joint editor of Jordan's Civil Court Service (the professionals version of the 'white book' ie. the CPR [Civil Procedure Rules]) as such I do not believe that these 'opinions' should be "taken lightly" as you state. They are clearly a definitive view as to what the law is and can be cited in any Court including the highest Court in the land. Rarely if ever should that legal opinion be challenged, least of all by an on-line forum groupie whose claim to fame would appear to be to have a seven day a week mission to direct the less fortunate and legally ill-equipped in 'his view' of what the law is!! I quote for your reference who are the joint authors of this highly recognised legal 'bible'; The Right Hon Lord Saville of Newdigate, District Judge Neil Hickman, The Right Hon Lord Justice Laws Lawdoctor.
  7. All your knowledge and advice you give on this forum and you need insurance to cover you if you need to evict someone. That tell's the story. Lawdoctor.
  8. Etiquette can be put to one side when the legal health of the forum user's is at risk!! Lawdoctor.
  9. So that is where you keep your brain must be a very big wallet-- in your eyes of course Lawdoctor.
  10. Ha Ha agreed, the penny is starting to drop with you I think!! Lawdoctor.
  11. Under discussion was is the sec. 21 notice valid it is not you were clearly wrong go on be a man admit it. This is what I said on a post in march of this year. "I was wrong you did not post on that thread,silly me. I must need reprograming"!!! See a true man says when he is wrong Lawdoctor
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