Abode Lettings scam

[sezchwarn]

Plea to anyone who knows about consumer rights regarding services, false pretenses and letting agents:

 

Responding to a rightmove ad for a flat, we phoned 'Abode lettings' in Bristol. We handed over £250 to secure the flat, whilst references were checked. At this point we were told the sum was refundable if any problems arose preventing us from taking the flat.

 

A few days later, they phoned and told us my girlfriend's work reference wasnt valid because she was not continuing the work throughout the tenancy (kind of obvious seeing as we were moving 60 miles away). The next day, they told us the Landlord had added an extra stipulation, that we provide 3 months rent upfront.

We couldnt meet these conditions and were refused tenancy as well as our money back. They said they needed it to cover service expenses- the receipt does say 'service fee' in small writing, though there was no mention of exactly what services we were supposed to be buying. We wrote several times, without response.

 

My complaint is that

a) they didnt provide a full service (eg writing up the contract-all they did was send two letters) and £250 is excessive for this.

b) mainly that we were told several times that the fee would be refundable if any problems arose, hense the whole affair was under false pretenses.

c) the only problems were from their side, ie additional stipulations- we did everything asked for.

 

Now im pretty sure that if you ask what it reasonable, we should get our money back. But what I would like to know is if you ask what are the legalities of the situation, would a small claims court be favourable?

We have a reciept for the money and a form saying the necessary reference is a 'work reference' with no mention of it having to be a continuing work reference and no mention of the 3 months upfront.

Oh, and this was about 5 months ago- too late?

[sezchwarn]

anyone any ideas at all??

[Esio Trot]

anyone any ideas at all??

 

The company will be entitled to some recompense, but you are talking of £250. This does not relate to the work done. Though not tested in law, the Office of Fair Trading would no doubt class this as an unfair term.

 

If you want to dispute this, then you need to be prepared at the outset to take court action if necessary.

 

Go onto the OFT site. Look up their Tenancy Unfair Terms book (100 odd pages). You will then need to write to the agency demanding your money back and follow through if needed.

[MrShed]

Esio, not sure if that is applicable - there was no tenancy ever in place.

[sezchwarn]

Well, i think if i did take them to court, it would be with regards to the service, rather on anything to do with the tenancy- like false pretenses or something. i just wish this country had some sort of free legal advice, other than the useless cab.

[sezchwarn]

come on, Mr Shed. you know lots about the law, what do you think? can i av em on verbal false pretenses (about it being refundable)?

[MrShed]

Well...I think the problem is your word against theirs. You have nothing in writing. Do you have a receipt for the deposit? What does it say on the receipt?

[Ed999]

Esio, not sure if that is applicable - there was no tenancy ever in place.

 

 

It is not capable of being "a term of the tenancy", because no tenancy agreement was signed.

 

In the absence of express provision in the contract as to the amount of the fee, the agency would be entitled to charge on a "quantum meruit" basis. In practice this means that the Court would assess what a fair charge is, based upon factors that would include the amount of work done and the exact wording of the contract.

 

You might sue for return of the sum paid, on the basis of breach of contract (if the agency did not comply with the trms of the contract), or misrepresentation (if the agency made a misrepresentation of fact, before the formation of the contract, which induced you to enter into the contract), or negligence (if the agency was negligent in the performance of its duties under the contract).

 

You might try suing, in the alternative, for total failure of consideration if the agency did not perform the contract at all.

 

This would be a small claim in the County Court. No legal costs are normally awarded in a small claim case, win or lose.

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[sezchwarn]

hey, thats great help, thanks.

 

Though there was no "wording of the contract", because there was no written contract really- nothing was signed by anyone. i mean, what counts as a contract? Because all those grounds for suing you mentioned require reference to a contract.

 

I do have two things in writing. I could show the court a receipt and a sheet of paper listing what we need to give them ie the references required along with our names, the adress of the property and when we need to give the deposit by etc- but its not signed.

The receipt basically says that we gave them £250. It doesnt say exactly what for, but has the words agency fee scribbled on in small print. One small point though- the receipt refers to us only by our first names.

All I could prove to the court is that I gave them £250 and what they have done on my behalf (post two standard letters/forms).

 

Yes it would be my word against theirs with regard to them saying it was refundable. Will the fact that they have not stated its non- refundable have any relevance?

 

So i guess my only ground for suing would be that the charge is way excessive for the work done (provable) and i could claim that i was duped into it anyway (my word against theirs), right?

Would the court still do this 'fair amount' assessment, in the absence of a written contract?

thanks in advance.

[Ed999]

A contract exists if an agreement was made, namely an offer on their part which you accepted ("offer and acceptance"), supported by a payment made by you ("consideration").

 

The contract can be verbal or written. Although there is no requirement for it to be in writing, any written evidence of the terms agreed will help you as a matter of evidence if it goes to court.

 

If you agreed with the agency for them to provide you with certain services, in return for a fee, which you paid, then that fulfills the requirements for the formation of a contract.

 

Where the terms are not set out in writing, you will have to prove what terms were actually agreed.

 

It is not a question of whether the fee is "refundable". It is a question of what fee is due, and whether that is less than the amount you paid.

 

If a specific fee was agreed, that is the agreed fee. If the agency provided the agreed services (it is up to you to prove what terms were agreed), they are entitled to the full fee; if they did not then they are not entitled to the full fee but may be entitled to a partial fee.

 

If no specific fee was agreed, the agency are entitled to payment on a quantum meruit basis. If they provided the agreed services the court will decide what a fair fee would be, for the work done. If they did not provide the agreed services, or only part of them, they may be entitled to a reduced fee.

 

In all cases it is up to you to prove what the agreed services were. Written evidence which you have may help you. The prospects of winning a court case are improved if you have written evidence of the essential terms that were agreed.

 

It will otherwise be your word against theirs as to what the terms of the contract were. Not merely as to whether the money was expressly agreed to be refundable, as nothing appears to have been agreed on that point before the contract was formed, but in general as to what the agreed services were to be.

 

Any statement that the fee would be refundable which was made after the contract was formed cannot be a term of the contract. Nor can it be a representation, since any such must also be made before the contract is entered into.

 

Accordingly, it is more pertinent to ask what were the services that they were to provide. That, it seems, is the key to any court action.

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[MrShed]

Cant really fault Eds post - he is spot on.

[sezchwarn]

Ok, well firstly, it was agreed in advance that the fee was refundable.

 

And as for the services agreed to, basically, there wernt any with regards to the sum paid- we thought of it as a holding deposit. So we didnt discuss what the sum was for really.

 

Though, on second thoughts, they did say they would secure the flat for us if we gave them the money- so i guess thats a service, one which they didnt fulfill. Would that do?

[Ed999]

Ok, well firstly, it was agreed in advance that the fee was refundable.

 

And as for the services agreed to, basically, there wernt any with regards to the sum paid- we thought of it as a holding deposit. So we didnt discuss what the sum was for really.

 

Though, on second thoughts, they did say they would secure the flat for us if we gave them the money- so i guess thats a service, one which they didnt fulfill. Would that do?

 

 

Warning #1: You must be able to prove in court - i.e. produce evidence - that the agent stated that he would refund your fee if he did not secure the flat for you.

 

Your word alone may be challenged. Can you produce a witness to the conversation in which that representation was allegedly made? Is there any written evidence that it was made? Can you provide independent evidence as to WHEN it was made?

 

If the landlord's agent made a representation, before the contract was entered into, that he would refund the fee if the tenancy was not granted, such a representation (which is usually a verbal statement only) can be a term of the contract - but ONLY if the unwritten statement can be proved by you to have actually been made! And ONLY if the statement was made BEFORE the contract was signed.

 

 

Warning #2: You have to prove not only that the representation was made, but also the terms of it.

 

A statement by you, in court, that "as for the services agreed to, basically, there weren't any with regards to the sum paid - we thought of it as a holding deposit, so we didn't discuss what the sum was for really" will certainly kill your claim.

 

You must prove that the agent said both (a) "he would secure the flat for you if you gave him the money", and (b) "he would refund the money otherwise". That is what you must prove.

 

Good luck.

 

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[sezchwarn]

Ok, thats really cleared things up. The state of affairs is such that I cant prove that representation.

 

One last question- given the little that I can prove (that I gave them some money and the little they have done), could I somehow at least make a claim that those services do not warrant the charge? ie that whatever the situation with refunds/ agreed services etc, the services provided do not warrant the fee given? - or could they just say "he agreed to pay £250 for us to send two letters" and that would be the end of my claim?

 

And thankyou very much for sharing your knowledge.

[Ed999]

Ok, thats really cleared things up. The state of affairs is such that I cant prove that representation.

 

One last question- given the little that I can prove (that I gave them some money and the little they have done), could I somehow at least make a claim that those services do not warrant the charge? ie that whatever the situation with refunds/ agreed services etc, the services provided do not warrant the fee given? - or could they just say "he agreed to pay £250 for us to send two letters" and that would be the end of my claim?

 

And thankyou very much for sharing your knowledge.

 

 

Without independent evidence, it is your word against theirs. Your prospects of success are not as good as they might have been if you had obtained independent supporting evidence, but you are still entitled to sue, and the claim might still succeed.

 

I have outlined only what you need to prove. Your own evidence, if accepted by the court, is capable of being sufficient. But there are no guarantees.

 

From your statements, I am going to make the entirely justified assumption that you didn't discuss how many letters they would write on your behalf, or what work they would actually do! If so, I don't see how you establish that they didn't do what they had agreed to do, if no specific details were agreed?

 

It now looks more straight forward: that you must show that they agreed to either obtain the tenancy for you or refund your money. If you can show that then either they secure the tenancy and thereby earn their fee, or they do not.