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kaladorm

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Posts posted by kaladorm

  1. The TPO has written back to me and said that they will not be assessing the case, as they cover section 8a of the TPO code of practice that the agreement should be transparent to compy with the Unfair Terms in Consumer Contract Regulations 1999, not to assess whether a term actually *is* unfair, that that would be a matter for the courts to decide.

  2. That document from the OFT is brilliant thanks Damocles! I've decided to refer the issue to The Property Ombudsman for review but will keep you updated on any results. FYI here is the latest reply, note that half of these actions haven't been done (as there's no renewal) and they also imply that the tenant is responsible for some of their communications with the landlord - they also charge the landlord a similar fee however...

    Your tenancy moved in to a Statutory Periodic Tenancy from the 7th May 2013, as agreed between yourself and the Landlord. However in order to reach this agreement a number of steps had to be taken by ourselves as agents, which as you would appreciate takes the time and effort of our employees to complete. I have outlined the key stages below for your reference.

    · 75 Days prior to the tenancy end date a renewal invitation letter is sent to both parties within the agreement asking for confirmation on how they would like to proceed with the tenancy.

    · In between the period of invitation and actual renewal it may also be a requirement for the agent to liaise with both parties to negotiate a new agreement. Which would involve further time being spent sending communications all parties.

    · Should confirmation be received from both parties that the tenancy can continue for a further term on a fixed term agreement, an extension to an Assured Shorthold Tenancy document is produced and would require the signature of both Landlord and Tenant(s).

    · If a tenancy continued on a statutory periodic basis and although no extension document would be required the agent is still required to undertake additional work. In this instance instead of producing an extension document a letter confirming the change to a statutory periodic tenancy will be produced and sent to all parties. This was the process applied to your continuation of tenancy at the above address.

    · Furthermore our database has to be updated to reflect the change from a fixed term tenancy into a periodic tenancy, which again requires the specialist knowledge of our employees.

    At the commencement of your tenancy you agreed to the terms and conditions outlined in both the tenancy agreement and the charges for additional services document that clearly define the terms regarding renewal and the fees applicable. Therefore as discussed I feel that the fee for continuation of tenancy which has been invoiced to yourself is correct and will not be waived. It is also worth noting that upon moving into a periodic tenancy basis only the initial renewal fee would be due and that no further would be charged should your tenancy continue beyond the next year.

    I do hope that this allows clarification of the process undertaken and allows the matter to be brought to a satisfactory end.

  3. Spoke to the Head of Property Management today (also concerning some maintenance issues). Essentially relayed all my discussion points from the previous posts.

    He wasn't willing to accept my assertion, or confirm the previous email I have acknowledging the work required is minimal. He stated that the work involved was sending emails, contacting the landlord etc. and updating the system, even though no contract had been renewed. I pointed out that, should they have not done this work, the tenancy would be in the exact state it is in now.

    He also didn't seem to understand my point about the contract being between myself and the landlord, so even if the agent wanted to enforce the charge the landlord would have to sue for breach of contract.

    I am a little concerned that there is also a clause in the contract stating they can charge £25 for each letter sent for overdue moneys owed, so they may just start hurling charges left right and centre. There are also multiple other clauses in the contract for charges where they take £75 out of the deposit for checking out as well which we'll have to deal with when the time comes.

    I suspect I will be hearing from their lawyers soon however. I believe I have a very strong case, I just need to work out how much hassle my sense of justice can afford :)

  4. It's what I intend to do, as I'm fully confident that it cannot be upheld.

    I suspect what will happen is they will go quiet and seek to claim through the TDS, as there is a clause in the contract allowing them to subtract moneys owed under the deposit (and they will argue it is owed). Rather than take me to court for the money, it's far easier for them to wait until the end of the tenancy, make the claim, and require me to go to court to get it 'back'.

  5. Hello there

    We moved into our house on 30th March last year, and had agreed we would pay our deposit incrementally, with the last payment being 11th August last year. The total amount was £1900 deposit.

    This year, the landlord wanted to increase our rent from £950 to £1250, so I told him to forget it, and handed in my notice to terminate my tenancy. I have asked him several times to secure the deposit, via the estate agent. I was constantly fobbed off saying it would be done soon.

    So yesterday, I contacted the estate agent saying that I had been in touch with all 3 deposit agencies (I know there are 4 now, but there were only 3 when he should have secured it) and had been advised it wasn't secure.

    He finally told me that in the end, the landlord held the money, and that I would get it back within 10-14 days of leaving the property.

    I requested he return it immediately, reminding him of the legal consequences, including the fine of 1-3 times the deposit. He point blank refused and said I would have to wait until after we move out.

    I was advised by shelter that the best course of action would be to fill in an N208 and start proceedings that way. I was also advised that even if he did return the deposit, I could still take him to court for non compliance.

    So I have a couple of questions really.

    1) Does the fact that the deposit was paid over half a year affect this?

    2) Can I still claim for non-compliance if he returns the deposit after I leave?

    3) If I do start proceedings with an N208, what are the real costs for the hearing? I've read a lot of conflicting information regarding this on this internet.

    Any help would be much appreciated.

    Thanks

    My understanding:

    1. No it shouldn't matter, though you'll need records to show it has been paid (when and how much)

    2. Some time ago you could, there was a case where it was ruled that you couldn't however. If you get your deposit back I wouldn't risk it and try to claim anyway.

    3. The submission fee a few years ago was around £220 or so. It may have gone up since then but it's around that number and that's about it. If unsuccessful you could be responsible for legal fees of the landlord - these are expected to be reasonable for a small claims court but could still be costly. If successful the judgement will include your costs as well as basic interest from the time the deposit was due back.

  6. Today's response from me:

    As I have previously stated, I do not believe the charges can be levied as they fulfill the criteria within The Unfair Terms in Consumer Contracts Regulations 1999.

    I would like to resolve this matter as reasonably as possible, and have kindly requested that a breakdown of the charges is provided so that we can come to some agreement. If you do not believe that this is possible, do you think it would be prudent to instead refer the issue to the Consumer's Association and the Office of Fair Trading to investigate further, as they have some experience of this matter?

  7. Updates

    Me:

    A contract becoming a statutory periodic tenancy is a statutory requirement, under Section 5 of the Housing Act 1988 and requires no intervention or service on behalf of the letting agent. As no work is required by the letting agent for this to occur, it is not a service that can be charged for.

    I would also like to draw your attention to The Unfair Terms in Consumer Contracts Regulations 1999, which covers the clause in the contract, indicating it will have no binding effect on the consumer as it satisfies the necessary criteria within. If you would like to review this further, there is the case of the Office of Fair Trading vs Foxtons estate agents, where the case was brought against the letting agent under this regulation specifically against renewal and other fees.

    Them:

    Hope you are well.

    I have looked into this matter and unfortunately no renewal fees can be wavered. Even though there was no renewal agreement the fees goes into all of the administration processes and the time into ascertaining if a renewal is required or not.

    Even though there is minimal work in a statutory periodic tenancy compared to a 6/12 month contract we charge the fee to stay within the property after the initial fixed term agreement. This fee will only be charged once now you have gone periodic.

    I apologise I could not be of any help however the contract and the charges for the additional services been signed by yourself and states:

    "Should you remain in the property beyond the fixed term whether the Tenancy has been renewed or it becomes a Statutory Periodic Tenancy an administration fee of £89.50 plus VAT is payable

    Me:

    Thank you for looking into this. As you have acknowledged that the work required for a statutory periodic tenancy is minimal, surely it cannot be that the same amount is charged as to prepare and renew a a fixed term contract. Are you able to provide a breakdown of exactly what the charges cover?

    Them:

    As you can understand our procedures, to renew a contract whether for 6/12 months or periodic a charge of £89.50 + VAT is required.

    You have signed the contract and the charges for additional services. Please pay the renewal fees as soon as possible otherwise you will be breached.

  8. As an update I got my money in full 5 mins after posting my last message. Must have put the wind up them!

    I'm still thinking of filing an n208 but I don't have a copy of my tenancy agreement, and the agent say they have not kept a copy.

    Thanks for the replys, I guess my thought process is one of morals, guilt and also lack of tenancy agreement so unsure!

    I wouldn't bother chasing it, getting the money back is the key thing. Given there were some recent rulings which didn't go in favour of the tenant because the deposit had already been returned, I think you'll be risking some time/money for something that's not guaranteed

  9. I agree with everyone else that the provision in the contract is likely to be declared an unfair term. However, the following argument is also available:

    Should the Tenant remain in the property beyond the fixed term, whether this Assured Shorthold Tenancy Agreement has been renewed or if the Tenancy becomes a statutory Periodic Tenancy, a renewal fee of £89.50 + VAT is payable immediately by the Tenant to the Landlord‟s Agent.

    Call the words in italics "the clause", the original tenancy "T1" and the SPT "T2".

    The clause is contained in the agreement which created T1. The terms of T1 only apply to T1 and are unenforceable once T1 ends except to the extent that they were not complied with during T1. The clause could not apply to T1 while it continued because it only purported to come into effect after T1 ended. There can therefore be no possibility of there being a breach of the clause during T1. The terms of T1 cannot therefore be invoked to require payment.

    What about the terms of T2 given that the same terms apply to T2 as to T1? The clause is incorporated as it stands and, just as it could not apply during T1, so it cannot apply during T2. The clause makes little sense anyway when applied to an SPT. Even if T2 were a new fixed term tenancy with the clause incorporated it would have to apply to the future and not to T2.

    I understand your logic here but not sure if that is actually the case. Wouldn't that imply that the other clauses of the tenancy agreement also do not apply, in which case I can start lighting small fires, making excessive noise, subletting and bringing in pets all with impunity?

  10. The only requirement I can see is that it is written into the contract. I did quote this on another thread but for reference:

    4.1.7 Should the Tenant remain in the property beyond the fixed term, whether this Assured Shorthold Tenancy

    Agreement has been renewed or if the Tenancy becomes a Statutory Periodic Tenancy, a renewal fee of

    £89.50 + VAT is payable immediately by the Tenant to the Landlord‟s Agent.

  11. Just ignore them. Moving onto a SPT is a statutory requirement, not an extra service you need to pay for.

    I don't intend to pay it and will be informing them as such. I'm looking for something a bit more formal I can use though rather than just telling them to get stuffed.

  12. I believe I asked this question a little while back and got the expected answer. I'm hoping now someone can help me with finding some some direct evidence or regulation I can quote to confirm that, should the contract move onto a statutory periodic tenancy, that a renewal fee cannot be charged.

    For reference when I challenged why the letting agent sent me a renewal invoice charge of £100 for a contract I am not renewing, I received the following response:

    As per your contract the renewal fee is due as in line with your tenancy.

     

    Whether proceeding on a SPT or a 6/12 month contract renewal fees are always required as you will be staying within the

    Any advice welcomed

  13. I think your questions have been answered pretty well by the other guys already! I don't believe you have to notify the landlady that you are taking action as by filing a claim she will be notified that that has happened. Having said that, a stern letter than states your intentions and exactly what part of the law she is in breach of (and what the penalties are) may prompt her into returning the full deposit. In our case our LL's had the deadly combination of both ignorance and arrogance which led to things progressing so far, sounds like your LL is fairly ignorant of the law so you just need to find out where she stands on the arrogance ;)

    Whilst getting 3xdeposit plus costs etc. is a nice goal, ultimately you want your money back with the minimum of fuss. I would have been happy to have my original deposit back plus the costs it took me to get it back, the fact that it took nearly a year to get the 3x deposit was a lot of work, and there were certainly many steps that could have been made a lot harder or even fallen through completely.

  14. Your landlord is in deep do do. The situation is slighty different to the original poster though, but if you take him to court you'll get your deposit back and up to 3 times it as a fine:

    http://www.housepricecrash.co.uk/forum/index.php?showtopic=178771

    I'd recommend spelling it out to the landlord exactly what situation he is in (even quote directly from the housing act) as he may just be trying to bully you out of the deposit. Explain that if he doesn't return the deposit in full that you'll begin court proceedings. You may even have to file the claim before he takes note which will cost somewhere in the region of £100 (I forget exactly), however given you were considering making deductions anyway this should be a reasonable cost if he backs down. And if he doesn't, well you get your costs back when you win :)

  15. Sign it!

    I doubt their mistake will stand though, the landlord will likely notice it before they sign it themselves. If they do however they won't be able to raise your rent again for a year, but they can always just give you 2 months notice....

    Done and done. £407.40 saved in rent and fees. Not a bad morning's work ;)

  16. Just received a standard format letter from them which requires me to sign an extension to the assured shorthold tenancy agreement. The extension includes amendments to the break clauses.

    *This* is how they get to charge a fee, by essentially signing you up to a contract that is functionally identical to an SPT but is in fact an extension of the original contract. Clever little f*ers :)

    I'm not too bothered though as though they said there'd be a rent increase the letter states it'll be at the old rental. Admin fail = tenant win :)

  17. I almost certain this is absolutely unenforceable. To charge a fee they actually have to provide something (even if it's just a paperclip) To try and charge you for NOT doing any work (ie a renewal) is ludicrous.

    I'm a bit confused though. You want to renew so why not just renew (and they'll charge no fee)? They can increase the rent whether you renew or go onto a STP.

    If you do go STP and they try and to charge the fee, don't bother arguing, just laugh in their face. No court in the land will award them their £89.50.

    Maybe it wasn't clear, the option they have given is to go onto STP and pay £90 or to sign for a fixed term 12 month contract (i.e. a new contract, cannot cancel or give notice within first 12 months...) and waive the fee. I'm taking the option of going onto STP (just nice to have 2 months notice as an option) and not paying the fee - win win for LL and I, not so much for the letting agency ;)

  18. I do believe they mean 1988 unless it is a typo on your part, but if that is what it says it is unenfoceible even if it were enforcible as no such act exists but you go SPT as that is what the law says.

    I think if it went to court I'd feel uncomfortable basing my case on the grounds of a typo ;). It was well worth going to court for the case mentioned above but I've had enough of it for the short term :)

    At any rate it's not a big deal, I've not yet accepted the revised fixed term agreement and given they seem to be fairly useless at keeping on top of paperwork I'm inclined to leave it until they decide to make an issue of it. I'm confident I can back my corner.

    Only £80 but hey, keep fighting the good fight. Don't want to let you guys down ;)

  19. Oh ho, hidden towards the back of the tenancy agreement ;)

    'Should the tenant remain in the property beyond the dixed term, whether this Assured Shorthold Tenancy Agreement has been renewed or if the Tenancy becomes a Stautory Periodic Tenancy, a renewal fee of £89.50 + VAT is payable immediately by the Tenant to the Landlord's Agent'

    Still not convinced, despite it being in the contract, that this is legal though I know its shaky ground.

  20. Forgot to add - I believe from everything I've read so far the STP can't be subject to a renewal fee, before I confuse any other readers. I was looking for confirmation (or a more direct reference outside the Foxtons vs OFT case) that this is true :)

  21. Hi guys, you might remember me from the post above with the saga of the unprotected deposit. I'm back and have a question for the community ;)

    We're renting and it's the time of year when our contract is due to be renewed. The letter we received was worded rather strangely though, I'm paraphrasing:

    Your contract is due for renewal, subject to a £90+vat charge. If you wish to take out a fixed term contract of 12 months we will waive this charge.

    We're happy to stay another year so agreed to the renewal, however they then came back after the agreement and said the rent would increase. Again no problem as the place is a bargain and we're happy here :) However I challenged them on whether we would remain on our original contract (and rent) if we didn't renew - £90 is cheaper than the increase after a few months. They didn't seem to understand the question, I think people normally just suck it up and pay what they say. Anyway as I understand it the LL is perfectly entitled to increase the rent so again, no real issues here.

    My question however, on looking into it further, is this. The agency is offering to waive the fee if we take out a fixed term contract of 12 months. If we don't take out the fixed term contract however, we would automatically end up with an Statutory Periodic Tenancy (SPT). So how can the agent charge a renewal fee of £90 if we choose not to sign? I have checked the rental agreement and specifically 'If the tenant remains in the property beyond the initial fixed term and no new fixed term tenancy comes into being then the Tenant will have a Stautory periodic Tenancy by virtue of Section 5 of the Housing Act 1998', so not worried about it rolling into a CPT.

    Thoughts? :)

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