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nickpatel

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  1. Or even the off-premises definition c will apply here too. a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; I am not sure what would be classed as 'immediately' Great to have this discussion by the way which I hadn't contemplated.
  2. No negotiations or discussions took place at the agent's premises - the only face-to-face contact was at my home when the agent came for initial introduction and appraisal of the property. Good question regards to the difference between the two. I guess the distance contract applies to sole online purchases whereas bullet (b) of off-premises contract applies to me as the agent's represented visited my home and the offer was made then for the services. “distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded; “off-premises contract” means a contract between a trader and a consumer which is any of these— (a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; (d) a contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;
  3. Manxman, I have highlighted the relevant bits in bold. The proportion of the services can only be charged if the express consent was given in a durable medium. (1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions— (a)regulation 34(3) (where enhanced delivery chosen by consumer); (b)regulation 34(9) (where value of goods diminished by consumer handling); (c)regulation 35(5) (where goods returned by consumer); (d)regulation 36(4) (where consumer requests early supply of service). (2) The cancellation period begins when the contract is entered into and ends in accordance with regulation 30 or 31. Cancellation period extended for breach of information requirement 31.—(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2. (2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information. (3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended under regulation 30. Supply of service in cancellation period 36.—(1) The trader must not begin the supply of a service before the end of the cancellation period provided for in regulation 30(1) unless the consumer— (a)has made an express request, and (b)in the case of an off-premises contract, has made the request on a durable medium. (4) Where the service is supplied in response to a request in accordance with paragraph (1), the consumer must (subject to paragraph (6)) pay to the trader an amount— (a)for the supply of the service for the period for which it is supplied, ending with the time when the trader is informed of the consumer's decision to cancel the contract, in accordance with regulation 32(2), and (b)which is in proportion to what has been supplied, in comparison with the full coverage of the contract. (6) The consumer bears no cost for supply of the service, in full or in part, in the cancellation period, if— (a)the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, or the information on payment of that cost required by paragraph (n) of that Schedule, in accordance with Part 2, or (b)the service is not supplied in response to a request in accordance with paragraph (1).
  4. Hi Manxman, Yes, the contract was signed on-line and I'm relying on s31 of CCR. I think what you are alluding to is the fact that if the contract started within the first 14days and if it was commenced with the expressed consent of the consumer (on a durable medium such as letter or email not phone call or webforms), then the consumer has to be pay for the portion of the services that was provided. Also, if the service has already been completed (which is not the case here as the service will be completed after 12months from the commencement of the tenancy which never commenced) then, full service fee is payable. In this case, no express consent was given - I have checked all my emails to them so they cannot charge for the portion of the services either i.e. arranging some viewings and finding a prospective tenant. In fact, I offered to pay for the reference check costs but they want it all. There was an implementing guidance on CCR2013 which categorically says that the regulation applies to letting agent's services - I have attached it here. At the end of the day, regulations are regulations and if anything, consumer is recognized as the weaker bargaining party as the contract was created by the business. Please google Robertson vs Swift - case prior to CCR 2013 came in where the supreme court ruled in favour of the consumer and went above and beyond what the regulation said at the time (although it derived some criticism). bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance (1).pdf
  5. Bankfodder, I don't understand why you think that I am trying to cheat them. It is in the best interest of the landlord to have a tenant occupying the property rather than having it vacant. But having it vacant is better than having a 'bad' tenant - there are plenty of horror stories. As a landlord, you don't have a lot to rely on before you let some occupy the property so how the tenant behaves leading up to signing the agreement is important. I have had other issues with the agent which I didn't want to elaborate here that led me to terminate the contract as soon as I rejected this tenant. But ultimately the law is law and if my interpretation regarding the 2013 Regulation is correct, this should be straightforward and we don't even need to rely on the other clauses. I'll see how it goes.
  6. Hi there, The clause that the agent is relying on is as below (Termination Clause) This Agreement will end immediately if the Landlord withdraws their instruction before the Agent finds a Tenant. Once the Agent finds a tenant who meets the criteria agreed which was agreed with the Landlord, the Landlord must pay the Agent the agreed commission. The criteria wasn't agreed in writing but in general I wanted a trustworthy and a transparent tenant - when I rejected this tenant, I gave it in writing that I considered the tenant not to be transparent and therefore, the tenancy not to be granted. This is what the agreement states with regards to commission on the contract. The Initial Commission fee is payable on the commencement of the tenancy and charged as a percentage of the total annual rental amount of the agreed term as specified in the tenancy agreement There is no tenancy agreement so there is no annual rent amount. Sorry I can't upload the Claim form - please let me know if there is any information other than I have supplied already that would like to know. thanks, Bankfodder, on your earlier note about whether the consumers have to always be provided with the cancellation rights, yes they have to - this is what the Regulations 2013 imposed compared to 2008 regulations which did not. Even with the 2008 regulations, not providing a cancellation rights is not a route to escape - please see the case precedence below. https://www.walkermorris.co.uk/publications/brief-october-2014/consumers-cancellation-rights-are-unaffected-by-failure-to-give-notice/ I have to disagree with you on your point about Section 6c being applied here - that again is likely to be applicable to tenancy agreement (with the tenant) certainly doesn't apply to the agency agreement. My agreement with the agent is to provide services.
  7. At the end of the day, the landlord can reject the tenant for any reason but the agent cannot charge for simply introducing a tenant as if the tenant has occupied the property for whole one year. The claim form simply says the invoice date and the amount only ( served through MCOL) and no further particulars of the claim served
  8. The tenant wanted to do a third viewing of the property on the day that he was meant to sign the agreement, having wasted good part of two weeks and having had two viewings already. I considered him to be non- transparent and rejected him. Thanks again
  9. Hi Bankfodder, Many thanks for your elaborative and helpful reply. Section 6c or 6d doesn't apply here- section 6d refers to a tenancy agreement. My contract with the agent is for providing services and it is not precluded by this statute. With regards to the fee, there is no breakdown- they're trying to charge me a full year of finding and managing the property as if that tenant has lived there for the whole one year. In fact the contract says that the % commission is calculated based on the rent on the tenancy agreement but there's no tenancy agreement so the rent is 0. Any percentage of 0 is 0?
  10. Hi all, I'm new to this forum and hope you can help. Wanted to check my understanding of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 with regards to failure of a letting agent to provide the right to cancel as part of the contract (I am a landlord). To provide you some background, the I appointed the agent for a period of 2 months to let our principal residence last year (before we moved abroad). I ended up sacking him as I was unhappy with the services (in finding the right tenant) and his transparency. Just before I sacked him, he found me a tenant whom I agreed to start the referencing procedures - the references came back OK but I had other suspicions about this prospective tenant so I declined the tenant and at the same time sacked the agent. Agent is convinced that I am contractually obliged to pay him the whole year of letting and management fee despite the fact that neither party even signed the agreement so no tenancy - this is close to 3000GBP. There was no 'right to cancel' within the first 14days clause within the contract but there is a clause for termination. From reading the statute, it appears that if the right to cancel and the cancellation period (14 days) is not provided, then the cancellation period is 12months (or 14days from the day that information is provided) - Section 31 of the Act. It went onto say that, The consumer bears no cost for supply of the service, in full or in part, in the cancellation period, if— (a)the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, or the information on payment of that cost required by paragraph (n) of that Schedule, in accordance with Part 2, or (b)the service is not supplied in response to a request in accordance with paragraph (1). I wonder if this can serve as a defence? Secondly, I am using the unfair terms within the Consumer Act 2015 which might make this unenforceable: A term which has the object or effect of requiring that, where the consumer decides not to conclude or perform the contract, the consumer must pay the trader a disproportionately high sum in compensation or for services which have not been supplied.' The consumer laws apply to me; I am not a professional landlord; the property we are letting is our main home before we moved abroad. The agent has started the proceedings and I am preparing the defence, there are several technical issues with the service too- despite explicitly asking him to serve me at my address abroad, he served me at my previous residence (luckily I had the redirect on) using Thomas 'shitty' Hig**** solicitors etc. Should I simply apply for a strike-out? I appreciate your advice Nick
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