Cottages4you holding onto LARGE deposits after cancellation

[Scattywooz]

My mother booked a cottage through Cottages4you for 6 of us in February but the next day my husband had his leave cancelled by his managing Director as there is an impending company court case which it is imperative that my husband is available for as he is a witness. We cancelled by 9am the next morning and were told that it would be subject to cancellation fees and the outstanding amount of deposit £378

At the time of booking my mother was not made aware that the contract was between herself and the owners of the property and didn't have sufficient time or understanding of the terms and conditions when the sales advisor read them out over the phone. And once you have paid for the low deposit then you are bound to these 'unintelligible' oral contracts which do not give you enough time to allow yourself to get fully acquainted with all the small print.

We could claim on the insurance but need a court summons letter...we sent paper work into them from solicitors advising of my husbands witness status...which the company lost but blame my mother for not sending recorded delivery, although looking at the cover notes which the company sent, at no point do they mention recorded delivery. Because we do not have the official court summons as yet we have had to pay the full deposit under the terms and conditions of £490

We have done so under protest but have stuck to the company's terms and conditions.

However am I right in thinking that this could be covered by Statutory Instrument 1999 No. 2083 The Unfair Terms in Consumer Contracts Regulations 1999? The company has made a profit from us not taking a holiday of nearly £500...this is not how much it would cost to cover their costs...incidentally they have gone onto resell part of the 2 weeks we had booked for!. Despite thinking that cancellation fees are too high, we understand that they do exist so have never had an issue with paying them...however we have a major issue with a company who operate when: (from OFT)

 

■ consumers unfairly losing prepayments if

the contract is cancelled

 

■ consumers being subject to unfair

penalties

 

When a contract is cancelled consumers should not generally end up paying for something they have not received. This is

especially true where the contract is ended by the supplier. Where the consumer causes the cancellation, prepayments should not be retained beyond what is needed to cover losses and costs which the business suffers as a direct result, and cannot reasonably reduce by, for instance, selling to someone else.

 

The Unfair Terms in Consumer Contracts Regulations 1999

Unfair Terms

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Schedule 2

 

© making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

Can anyone advise please...have tried to talk to consumer direct but have been given duff information on both occasions

 

I am currently waiting for Trading Standards to call me back but their first suggestion was for me to call consumer direct!!!

 

Has anyone heard of any success under this regulation?

 

Thanks Guys...this sort of thing makes me so mad and now I have seen so many other people going through this I'm even madder at the thought of all that 'free' money cottages4you and the hoseasons group must be 'winning'

[raydetinu]

IMO you are protected by the distance selling regulations as you would be in purchasing anything at a distance; online or phone.

You have 7 days from the conclusion of any contract ( offer and acceptance ) in which to cancel and get a full refund.

I would write to them and ask for the full refund under these regulations or you will take them to court.

Also if they have relet the property they must refund it ( cant get paid twice )!

[perplexity]

The right to cancel, as per section 10 of the Distance Selling Regulations would not normally apply to a booking which could not eventually be sold to somebody else, nor to a service that is already begun.

 

However, the crucial condition is then defined by Section 8(3):

 

Subject to regulation 9, prior to the conclusion of a contract for the supply of services, the supplier shall inform the consumer in writing or in another durable medium which is available and accessible to the consumer that, unless the parties agree otherwise, he will not be able to cancel the contract under regulation 10 once the performance of the services has begun with his agreement.

(Section 9 would not be relevant)

 

If the supplier did not in fact inform the consumer (except by way of the telephone, which fails to count), not only is the consumer entitled to cancel, the offence of omitting "any information requirement which applies in relation to a commercial communication as a result of a Community obligation" may be prosecuted as a strict liability criminal offence, as per Section 6 of The Consumer Protection from Unfair Trading Regulations 2008

 

In your position, Scattywooz, I would immediately report the facts of the matter to Trading Standards. It is their duty to enforce, or if they drag their feet it the usual right and the duty of a citizen, to lay information before a Magistrate, to arrange for a summons to be sent, to prosecute an offence.

 

Strict liability means that it falls to the defendant to show, at least, that he "took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control", so long as the omission is proved or admitted, as a matter of fact.

 

All you would get from The Unfair Terms in Consumer Contracts Regulations is the opportunity to argue about the interpretation.

[Scattywooz]

Thanks for taking the time to reply...unfortunately the Distant Selling Regulations don't cover holidays!!!

You can see the argument put forward by them that a lot of people could buy then cancel very close to the departure date HOWEVER it would be nice if there was some clause that covered this with maybe enforcing a time period of maybe 3 months before departure this would not be applicable?

I actually asked a very very nice chap from Trading Standards who the hell regulates the holiday companies as it seems at the moment they can make T&C's in their contracts which are loaded in favour of their comapny and unfairly treat the consumer...surprise surprise 'they are self-regulatory'!!!!!!!!

Surely there should be some sort of legislation which creates a independent regulator for the travel industry? ABTA is paid for by the travel agency so obviously work in the interests of companies and not the little person such as myself.

This has now become a case where the money has almost become a side issue...it's fighting for fairness in these contracts. The contracts which you are tied to the moment you have heard the main terms without clarification, paid the deposit and then when you get a chance to read the main contract and see the small print you cannot get out of because by the very action of paying a deposit, albeit a low deposit or full deposit you have concluded the contract!!!!

A contract is a mutual agreement, one that all parties have understood fully, been given adequate time to consider and agree to all parts as fair...!

 

And don't even get me started on the fact that they have resold part of the booked period!!!!!!!!!!!!!!

[perplexity]

If that is what you were told by Trading Standards, that the Distance Selling Regulations don't cover holidays?

 

According to the OFT Guidance for Business Sellers:

 

Contracts to which only part of the DSRs apply (Regulation 6)

 

...

 

Contracts to provide accommodation, transport, catering or leisure

services (for example hotel accommodation; plane, train, or concert

tickets; car hire; or sporting events) where you agree to provide

the service on a specific date or within a specific period. However,

long-term residential hotel accommodation agreed under a distance

contract may be considered to be rented accommodation and

therefore subject to the DSRs.

and according to the Terms and Conditions published on www.cottages4you.co.uk,

it's a rental of property, not the provision of a holiday:

 

Before booking through us, please read these conditions carefully and all the other information relevant to your booking, including:

• the property rental conditions (which means all information in any specific conditions or restrictions set out in the brochure or website description of your chosen property or properties); and
  
• the "Important information" section of the brochure, the website or other publication we tell you about.
  

Here is Section 6:

 

http://www.legislation.gov.uk/uksi/2000/2334/regulation/6/made

 

Unless there's a change of sheets, a sweeping of the floor or whatever else, they're not accommodating, transporting or catering while the property is rented. Their service is the arrangement of the deal.

 

P.S. — N.B.

 

"Your binding contract with the owner will begin when we issue the written confirmation."

 

It is not therefore a cancellation of a deal to rent the cottage, just a cancellation of a contract to arrange a deal to rent a cottage that is yet to be concluded.

Edited June 28, 2011 by perplexity
P.S.

[raydetinu]

well I have found a number cottage let sites which specifically quote distance selling regs do appply and you have 7 days to cancel; maybe they are wrong.

I have looked at the terms and conditions and agree that to forfeit the full deposit is unfair,as most only charge an admin fee or a percentage of the deposit if over 90 days.

However they do vary a lot. Caveat emptor etc.

Would of been better not pay or offer some reduced amount and put the ball in their court to justify it.

Taking them to court would be risky.

[perplexity]

Risky for who?

Section 6 excepts

 

contracts for the provision of accommodation, transport, catering or leisure services, where the supplier undertakes, when the contract is concluded, to provide these services on a specific date or within a specific period.

The Terms and Conditions published by cottage4you.co.uk specifically disclaim a duty to provide such a service:

 

All bookings depend on the property being available.

...... As long as the property is available and we have received all the relevant payments, we will give you written confirmation (see below) as soon as reasonably possible ......

We, on behalf of the owner, have the right to refuse any booking before we send you your written confirmation.

It could hardly be clearer than that.

 

It is nowhere near so much as an undertaking to rent a cottage, just an undertaking to see if it might be possible to rent a cottage, if the fact of the matter is that the booker "was not made aware that the contract was between herself and the owners of the property". According to their own terms and conditions there is therefore no contract with the owner.

 

Throw the book at them, and at Trading Standards.

 

 

In the mean time, for as long as they reserve the right to refuse a booking, the same should apply to the consumer or it's an unfair term, as is indicated by Schedule 2(d) of The Unfair Terms in Consumer Contracts Regulations 1999

 

permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;

To my mind this is indisputably clear.

[Scattywooz]

Trust me, I did offer to pay a reduced amount but they refused to accept it, then offered to maybe transfer holiday to another date subject to more charges, but they would treat the original booking as cancelled and would need another deposit!!!

I did consider saying to them take me to court but I was advised to keep to the agreed terms and conditions and then report to Trading Standards, which I have and they are now investigating! I have also reported them to The Office of Fair Trading for their Terms and Conditions to be investigated under the Statutory Instrument 1999 No. 2083 The Unfair Terms in Consumer Contracts Regulations 1999...i guess if they are found to be trading unfairly then it will open the door to a lot of past customers reclaiming lost deposits!!

Would it be possible for you to advise of which cottage let companies talk about the distant selling regulations please? It just goes to show that this company is grossly unfair and not bothered about customers.

It beggars belief that someone can book a holiday a year in advance and then lose their deposit if cancelled within 'reasonable' time!

And what makes it particularly goading is the fact that their T&C's allow them to keep your deposit but should they have to cancel your holiday through forces beyond their control (no doubt they could argue anything is beyond their control as they are only agents!) they do not have to recompense you!!!!!!!!!!!!!!!! Now if that bit had been read out in the oral contract, the cottage would never have been booked in the first place.

This company is one where the T&C's are loaded in favour of the company and therefore there is an unfair imbalance in the contract!

[ihateyes]

their t&c's are pants!! i just looked.... if you cancel more than 70days before your booking you lose the full deposit, plus ae subject to a £36 admin fee for each week..... as if losing the deposit isnt enough

[raydetinu]

here:

http://www.vtcitaly.com/terms.htm

 

and

http://www.tarnhouseholidays.co.uk/smallprint.html

 

As said these may have got it wrong as I may have.

 

However, if they subsequently let the property, they should refund all your monies, less an administration fee. They cant get paid twice or treat it as punitive damages.

That is why I said you should not have paid; If they went to court they would have to prove that the costs were justified and not just punitive and fair! ( not)

and certainly as you cancelled within 24hrs the incomvenience to them would be minor.

So if you acn establish that the cottage was or is relet you may have a good case for a refund of your depposit.

[ihateyes]

here:

http://www.vtcitaly.com/terms.htm

 

and

http://www.tarnhouseholidays.co.uk/smallprint.html

 

As said these may have got it wrong as I may have.

 

However, if they subsequently let the property, they should refund all your monies, less an administration fee. They cant get paid twice or treat it as punitive damages.

That is why I said you should not have paid; If they went to court they would have to prove that the costs were justified and not just punitive and fair! ( not)

and certainly as you cancelled within 24hrs the incomvenience to them would be minor.

So if you acn establish that the cottage was or is relet you may have a good case for a refund of your depposit.

 

 

The t&c's are between cottages4u and the person buying http://www.cottages4you.co.uk

 

booking conditions at bottom of page...... doesnt create a new link so cant post the link.

 

dont know what thoso t&c's are about

[perplexity]

To view the Booking Terms as a separate page, all you have to do is copy the link from the home page and open a new one. According to the actual terms, a link to which I provided before:

 

We arrange bookings as agent of the owners of the accommodation ("owner"). When you book a property with us acting as agent for the owner, you are actually entering into a contract with the owner.

As we act as agents when taking your booking, we accept no legal responsibility for any contract you enter into for accommodation or for the acts or neglect of any owner or other person connected with your booking.

....

If you do not pay any payment due in relation to your booking by the appropriate date we, on behalf of the owner, are entitled to assume that you want to cancel your booking. In this case, we will be entitled to keep all deposits paid or due at that date and pay them to the owner.

N.B. "and pay them to the owner".

 

What worries me then is the incongruity of this from the OP:

 

... We cancelled by 9am the next morning and were told that it would be subject to cancellation fees and the outstanding amount of deposit £378. At the time of booking my mother was not made aware that the contract was between herself and the owners of the property and didn't have sufficient time or understanding of the terms and conditions when the sales advisor read them out over the phone. And once you have paid for the low deposit then you are bound to these 'unintelligible' oral contracts which do not give you enough time to allow yourself to get fully acquainted with all the small print.

....

We have done so under protest but have stuck to the company's terms and conditions.

...

The company has made a profit from us not taking a holiday of nearly £500...

 

Before an opinion is formed, the need is to know exactly what took place.

 

Have you discussed the matter with the owner of the cottage, since the event? Did the owner so much as know that a booking was made, before the announcement of intention to cancel, so soon?

 

If the fact of the matter turns out to be that the company purports to act of behalf of the owner, who was not so much as aware of the booking, but then proceeds to pocket a deposit, never mind the owner that is tantamount to fraud, a criminal offence.

 

Otherwise I want to know how the owner would have known so soon, what exactly the situation was with regard to

 

Your binding contract with the owner will begin when we issue the written confirmation.

 

According to that, if there was no written confirmation, it follows that there was no contract for the Booking Conditions to apply to. The appropriate conditions would rather be prescribed by the Distance Selling Regulations.

 

P.S.

 

If you rather concede that there was such a contract, you have shot yourself in both feet, so to speak.

Edited June 30, 2011 by perplexity
P.S.

[Scattywooz]

Result...full deposit paid back!!!!!! I guess the old adage of only a squeaking door gets oiled!!!!

[raydetinu]

well done; why did they concede in the end?

[Scattywooz]

I spoke to a very sympathetic woman in the company and explained that I really didn't want to waste time going to court although being a stay at home mum I had plenty of time to do so so ...! I told her all the relevant points of the legislation...48hrs on and they had relented and given me a full refund!!! I did advise the that I had informed TS and OFT! It just goes to show never ever let anyone tell you that becuase you had agreed to their terms and conditions you are bound to an unfair contract!

[raydetinu]

yep, never give up:wink: