Problems cancelling gym m/ship with Harlands

[muldy]

Hi there

 

hope someone can help.

 

I am having probs cancelling my m/ship with my gym - Riptide in Brighton. the management comp for them is Harlands of Haywards Heath.

 

The problem is i have tried cancelling the m/ship - but they (Harlands) are having none of it and say that I have got to pay the rest of my d/debits - or else!! They are threatening me with debt recovery if I dont!

 

Also - and I think this will be where they will come unstuck - is that there is basically no way of cancelling the contract until the expiry of the FULL year is up. they call it a renewal period!!

 

So, the only way to cancel WITHOUT incurring any further d/d's is to cancel in the "renewal period" - personally I find that clause is very consumer unfriendly...

 

I have checked out the wording against what the Unfair Terms in Consumer Contract Regs 1999 says - and it looks on the face of it that this clause would be deemed "unfair" - as it is totally geared towards the company and not the consumer...

 

I have now sent Harlands a letter which basically says that the cancellation clause is unfair and have quoted the UTCCR re this.

 

I have added a paragraph which informs them that Total Fitness Uk and Ashbourne Management Services Limited have both been under investigation by the OFT for their unfair terms in their m/ship contratcts.

 

have a read and tell me what you think - thoughts pls!!

 

"I refer to your letter dated 23 July 2010.

 

I would like to bring your attention to the fact that it is NOT common practice for Health and Fitness Clubs to have a fixed minimum period. My last gym was one such as this, and I paid on a monthly basis and could leave whenever I wished without incurring ANY penalties.

 

I would also like to point out that I was not made fully aware of the terms and conditions of the membership by the gym staff upon joining, and any cancellation rights if any. I was just asked to sign the back of the pink form for my reference. I was never told in detail by the gym staff that I basically didn’t have any cancellation rights. Also at the time I signed the form, there were no visible signs on display warning of the full impact of the terms and conditions of the contract and definitely no reference at all about how you cancel your membership. Which by law, should be visible to all.

 

The “contract” for want of a word, falls under the remit of Consumer Law between an individual (consumer) and a business, this “contract” falls under both the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contract Regulations 1999.

 

Under the second Act, it clearly states under Regulation 5 (1) “a term is unfair if, contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers”.

 

Your contract is worded in such a way that it makes it impossible for a member to leave during the term of the membership, and having to pay the rest of the membership fees without having use of the facilities, and is biased totally towards the company and not the consumer, myself being the consumer.

 

I would point out at this stage that the “contract” does not give any “member” the opportunity to cancel the membership during the duration of said membership, and therefore this would be seen as an “unfair term or clause” in the “contract”, under the Unfair Terms in Consumer Contract Regulations 1999.

 

As a point of fact, you might be interested to know that towards the end of last year,

Total Fitness UK has agreed to revise its membership agreements for customers, following intervention by the OFT due to the unfairness of its contract terms. The OFT also issued High Court proceedings THIS YEAR against Ashbourne Management Services Limited which draws up membership agreements for a number of gyms and then collects members' payments, because of concerns about its compliance with consumer credit law and the fairness of its contract terms. In much the same way that you operate, I think you would agree.

 

I am familiar with the ‘Office of Fair Trading Debt Collection Guidance’ which states that it is unfair to send demands for payment or to cite possible debt recovery processes to an individual when the consumer has already stated that they are not liable.

 

In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods. Furthermore, ignoring and/or disregarding claims that debts are disputed and continuing to make unjustified demands for payment or threats of debt recovery amounts to physical/psychological harassment, which is a reportable offence to the police.

 

I am also familiar with Section 40 of the Administration of Justice Act.

 

I would ask that no further contact be made concerning the above account, and if I hear further from you again regarding this matter, I will have no option but to make a formal complaint to my local Trading Standards office, and consider informing the OFT of your actions. I am sure that you would not like the OFT investigating the way in which you operate.

 

I await your written confirmation that this matter is now closed. I look forward to your prompt reply."

Edited July 28, 2010 by muldy
had html coding in txt

[slick132]

Hi Muldy,

 

We've seen many cases where gyms or their admin people are unreasonable about cancellation and make it difficult to cancel in various ways.

 

What was the initial contract period that you signed up for.

 

On what basis do you want to cancel, if it's within the initial contract period.

 

[muldy]

Hi there

 

thanks for your reply.

 

It was for a year but I was under the impression that I cld cancel at "any time" as that it said the direct debit g/tee...

 

in fact the terms misleading and contradictory....

 

in one part it says that you cannot cancel the contract under any circumstance - yet on the SAME page it says you can cancel at any time!

 

thoughts pls!!

 

cheers

[slick132]

Hi Muldy,

 

Whilst you may have THOUGHT you could cancel at any time, I'm sure the contract will say you cannot cancel during the intitial contract period and, to cancel after the ICP, you have to do so in a certain way.

 

Can you confirm if the ICP is for a year, or for longer. We've seen contracts that specify up to 3 years !!

 

How far into the contract are you.

 

Why do you want to cancel.

 

 

How far into the

[muldy]

Hi there

 

yes the contract is for 1 year...but then rolls on if you dont cancel in the renewal period...

 

I joined up abt Oct last year...

 

I want to leave as:

 

a) im finding the monthly subs a bit high - im on a low wage

b) iv found a cheaper gym - where the m/ship fee is only 9.99 and I can leave at ANY time!!

 

Im near enough towards the end of the contratc - but I dont see why I should pay any more to these guys...

 

why should I pay for something that im not using??

 

[muldy]

here is a copy of the contract on this link:

 

http://www.consumeractiongroup.co.uk/forum/gyms-health-clubs/191751-gym-contract.html

[slick132]

Hi Muldy,

 

why should I pay for something that im not using??

Because you signed a contract agreeing to do so.

 

I've seen the contract on the thread that you linked above but it doesn't show anything about how you can cancel.

 

Please confirm what your contract says about cancelling.

 

[muldy]

hi there...

 

On that link I gave you...if you carry scrolling down on that page. You will see both part of the front page of the "contract" and the back page.

 

The cancellation "option" is only viewable under the "Renewal" terms

 

Doesnt exactly stand out does it?? or very prominent....

 

so unless you actually read the contract from beg to end - you could actually miss the clause...and thats my point...

 

Its not v consumer-friendly...

 

It says "you cannot cancel under any circumstance" on the front page...

 

then on the back in normal text says you can only cancel AFTER the minimum one year period is up and then ONLY in the renewal period...

 

not exactly clear is it...?

 

[slick132]

It says "you cannot cancel under any circumstance" on the front page...

It actually says the agreement itself cannot be cancelled. That is not the same as saying your membership cannot be cancelled.

 

I've looked at the Renewal terms and can't see any reference to how you can terminate the agreement after the initial contract period is up.

 

So what does it say on the back about cancelling in the renewal period. This is what you'll have to do to end the contract.

 

[muldy]

hi there slick

 

Theres two clauses which I think are pertinent....

 

Front Page

 

By signing this agreement you warrant, declare and acknowledge that:

 

4. Irrespective of attendance or change in personal circumstances, this agrement cannot be cancelled.

 

RENEWAL

 

10. In order to extend your membership after completing the minimum number of direct debit payments, we will automatically continue collecting the direct debit payment amount every month. Your membership will be extended by one month each payment. Each payment made is non refundable under any circumstances. This renewal direct debit payment amount may only be amended if we advise you in writing giving 30 days notice. Please note - if your membership included the benefit of a free period then we will stop making collections during that free period and recommence making collections on the renewal date.

 

During this renewal period the only way to cancel your membership is by cancelling your direct debit mandate directly with your bank.

 

As you can see there is NO obvious cancellation clause - and thats my point!!

 

It is not obvious to the average consumer...also there is no option to give notice either. Something which is in most contracts. i.e. contract of employment. This contract is totally geared towards the company and NOT the consumer. The gym works on the basis that "most" new members will stop going to the gym within the 1st 3 - 6 mnths, so therefore will "make" on this assumption more or less each time...

 

You might like to note that when the OFT had Total Fitness UK amend their contracts recently, this is what a spokesman said:

 

Mike Haley, OFT Director of Consumer Protection, said:

 

'Gym agreements, like any other consumer contract, must be balanced, fair and understandable. We have worked closely with Total Fitness to secure these changes and we believe that consumers will find the new membership agreements much clearer and fairer.'

 

What do u think??

 

Muldy

[slick132]

During this renewal period the only way to cancel your membership is by cancelling your direct debit mandate directly with your bank.

This is what confused me as it didn't appear in the contract document you linked us to.

 

Does your contract specify what the Renewal Period is.

 

I agree that the contract is almost certainly flawed for several reasons. Have you read the Sticky here, which includes mike Haley's statement - http://www.consumeractiongroup.co.uk/forum/gyms-health-clubs/183091-oft-statement-gym-membership.html#post1972947

 

My advice to you would be to pay the 12 months' DD's which you signed up to. If you don't do this, they'll be chasing you for payments and will have reasonable grounds to do so.

 

Give them written notice by Rec'd Del'y to their Head Office, on the date of the 12th and final DD payment, that you hereby give them notice that you cancel membership as from xxdate (the anniversary renewal date).

 

Confirm that you will not pay any further amount and will not enter into any communication about this matter because you understand that their contract is flawed and you have heard about gyms causing problems when members want to leave.

 

[muldy]

Hi there Slick

 

Now you see why Im having probs with these guys - the contract is difficult to understand- and contradictory.

 

My contract is EXACTLY the same as the one iv already mentioned - as it comes from the SAME company - Harlands....

 

Your quite right tho - the contract is not exactly "consumer friendly" and there is no actual clause saying "Cancellation" or "Your right to Cancel" - like there is to "Renew" the agreement...funny that!!

 

its "hidden" away under the "Renewal" term - and thats my point. I "think" there should be - in my opinion - a clause giving you the option to cancel the agreement - or at least the option to give 1 months notice.

 

For the "average consumer" - i think they wld have probs understanding this contract. I dont like the fact that Harlands dont make it "obvious" about how to cancel the agreement...

 

The OFT have said that 1 months notice from either party would be a "reasonable" period.

 

The renewal period is the month when I signed the direct debit mandate - thats how I read it anyway...

 

Its NOT clear!!

 

I dont see why I shld pay these guys any more money for something im not using - as far as Im concerned I only signed a Direct Debit mandate - which under the d/d g/tee you can cancel at ANY time....

 

I have already given them notice to quit - and pointed out that as far as I was concerned I was up to date wiuth my payments - as you pay in advance - and therefore owe them no more money...

 

What do you think??

 

Muldy

[slick132]

My contract is EXACTLY the same as the one iv already mentioned - as it comes from the SAME company - Harlands....

 

This is what confused me as the copy you linked us to does not show that paragraph about cancelling and DD's.

 

In any event, the contract is pretty rubbish.

 

The only reason I suggest you pay to the end of the initial contract period is that is is very clear that you signed up for this, regardless of how unclear the cancellation process is.

 

If you stop paying early, you'll have hassle from their Admin dep't and then their DCA.

 

However, I get the feeling you're up for the battle and will stop paying them now anyway.

 

Keep us posted on progress.

[muldy]

Hi there Slick

 

Yes I agree the agreement is rubbish and tats what im basing this dispute on...

 

have emailed the OFT but the reply I got back wasnt v helpful - in fact they were of the opinion - that like u said - i wld haver to pay the remaining pymnts....

 

but I DID point out to them that they have taken both Total Fitness UK and Ashbourne Mngmnt Ltd to task re the issue abt their "unfair terms"

 

...and thats whats this is all about...

 

I have emailed BBC Watchdog today....

 

Muldy

[fatdog]

Sorry guys but this one is not as clear cut as the Ashbourne cases I am very familiar with.

 

Firstly you are getting confused about cancellation. It states you must make a minimum of 12 direct debit payments, after which time the contract will roll forward on a monthly basis. If you cancel the direct debit after the 12th payment has been collected then the contract terminates. That is very clear in the terms and is to referred to as the 'renewal period'.

 

I'm not familar with Harlands. Are they the gym itself or the payment collector on behalf of the gym?

 

What has been established is that Ashbourne is not a gym and does not own any part of a gym. They are payment collectors who have a relationship with the gym to act on their behalf. Note the wording there!

 

When the gym accepts one of the members can/should not longer be a member they should tell Ashbourne (the payment collector) the relationship has ended. What Ashbourne do is try to convince people that the contract is not with the gym but between the gym user and Ashbourne directly. This is not the case and is not legal on the basis that Ashbourne are not provding anything in return for the consideration (membership fee) paid. So the 'contract' is unenforceable and essentially void.

 

If Harlands do the same as the above then they don't really have a contract with you. However if Harlands are (or own the gym) then I'm afraid the 12 month contract looks fairly solid on my very quick look through it. Like you say it ends in about 6-8 weeks time. As soon as you've made your 12th DD payment then get on the bank and cancel it and the contract falls away.

 

Let me know what Harlands role in all this is and perhaps I can look a little deeper for you.

[fatdog]

Right having had a look at this again on the basis that muldy has said Harlands are indeed a payment collector, just like Ashbourne, then these are my comments:

 

On the posting that shows a part copy of the contract:

On the first picture (assuming front page of the contract showing the start date, monthly amounts etc):

1. "On joining The Club" .... so 'The Club' has to be Harlands or owned by Harlands for this contract to be enforceable by Harlands. Otherwise they are not a party to this contract. If you pay Harlands for something they need to give you something for that money - ie access to their gym.

2. Point 4 regarding cancellation is clearly an unfair term. All contracts should have a cooling off period, usually 7-14 days.

3. Point 5 sums this contract up. "This contract will become binding upon both parties once it is countersigned". So Harlands are suggesting here they own or manage the gym. This is not the case, so they once again are 'acting on behalf' of the gym - which this paper should specify.

Interestingly the date of the "Club" signature is before yours. That could just be an error/confusion of the date at the time.

Incidentally who's signature is this - someone employed by the Gym or Harlands? That could be a big factor as to whether they were 'authorised' to do so. By this I mean if the gym are signing contracts on behalf of Harlands then there should be a contract allowing them to do so, and visa versa. This would demonstrate Harlands are merely an agency acting on behalf (and under the instruction of) the gym.

What I can't see is the top of the page to see who the parties are.

 

On the reverse of the page (the terms and conditions):

Nothing here is stupidly written in such that it would be worth bring up at court. However point 15 is the best paragraph I have seen in a while. The agreement (as mentioned on the front page) is non-cancellable. This would imply on all parties to the contract.

However this paragraph says they can terminate on you if you break the rules and will not expect any further money from you. This is a very interesting paragraph. I'm surprised it's been put in if they want to grab your money. I would have thought termination on their part would mean full payment of any outstanding DD payments!

 

At the end of the day, what does the gym itself say about your membership? If they don't mind you not being a member anymore then get them to tell Harlands to stop chasing you.

 

In my opinion this contract is worthless and totally unenforceable. At the end of the day, the gym has control of who uses their gym. They ask someone to manage the admin side of their business and these companies are trying to take over the members and break the relationship. The gyms agree with the agents as they see them as "experts" and it takes away extra work from them. Unfortunately these agents are getting a very bad name, to the cost of the gyms who use them, but as soon as it is make 100% clear to these agents that whilst they may have authorisation to collect money on a gyms behalf, they have no right to undertake default registrations etc without the express written permission/instruction from the gym.

 

I hope that answers your question. In regards to what to do next .... go to court.

[zenmaster2010]

Hi there, having similar problems with Harlands, so have cross posted, if anyone wants to follow http://www.consumeractiongroup.co.uk...on#post3108772

[muldy]

Hi there

 

thought wld update my posting with my letters that I sent Harlands...

 

Hope ppl find them useful

 

Muldy

Harlands_followup&disp_pdf.pdf

harlands_followup_pdf.pdf

[zenmaster2010]

At what stage is it at now then muldy ? Are you waiting for a reply to the last letter you sent ?