Tweet
I would appreciate some opinions on this case. Haart have filed against me, I have submitted a skeleton defence, it has been allocated to Small Claims track, I have had it relocated to my local court, and i am yet to be given a hearing date. I'd like to flesh my defence out a bit in time for the hearing.
______________
The estate agent Haart are trying to sting us for a £180 "termination fee" after (what we thought was) the end of a contract.
This has been covered on various sites as a scam, e.g. http://www.allagents.co.uk/haart/
It may well be that they have us over a barrel, but considering what they did (n't do) for us during the contract, there is no way i am giving them a penny, and will fight it to the bitter end even if i have little chance.
Basically, the contract was for 16 weeks, which expired in September 2011. We contacted them to check they had stopped marketing the property, but they said they still required written notice even though the contract was up. This written notice triggered a £180 fee.
In regards to the fee, when we signed up the conversation with the agent was as so:
Me: So we only pay you if you sell the house right?
Haart: Yes
Me: And the contract's for 16 weeks?
Haart: Yes
Me: What's this £180 fee?
Haart: That's for if you terminate the contract.
Now, it turns out that how they scam you is that after the 16 week period, the contract continues on a rolling basis. They will ALWAYS sting you for a termination fee at some point! Needless to say, we would never have agreed had this been clear.
-Yes, estate agents are dodgy and yes the above statements were verbal only
-Yes, we should have read the contract. We did, and asked questions to clear things up.
I would say that their charge is possibly validated by the contract, but i would also say that it is massively onerous and misleading.
"Initial Period" is stated on the front of the contract as 16 weeks, starting 23/05/11
A few responses that have been raised by friends:
Then the plot thickens:
After sending me a NIP with completely wrong information written in Estuary English syntax, i replied again stating that i would not be paying the "fee" and require them to submit a claim in the county court within 28 days. This was in November (although their letter is not actually dated!)
I figured they must have crawled back in their holel but then i received another NIP in January, to which i replied again stating that in good faith i would give them a further 14 days to submit their claim. Both my communications were by registered post.
They have actually filed a claim now, and i am partly annoyed because i have plenty of other things to be doing, but partly pleased to have a chance to stand up to these bullies to hopefully create a precedent for all the other people who have been/are being scammed by them.
To recap:
-The contract is above, in my initial post
-The agent stated that it was a "standard 16-week contract" and that we would only pay the fee "if we cancelled the contract". This was stated in words though, although there were two of us that can attest to this.
-The service was terrible - they brought us less than 1 viewing per week, and never returned our many calls to try and get feedback
-The only reason we didn't ditch them after the first 2 months was because we wanted to see out the contract and not be charged the fee.
-After the 16 weeks were up we stated that we didn't want to extend it. They stated that there was a 2-week cancellation period, so we would still be tied for another 2 weeks
-After these 2 weeks they sent a letter stating that we had cancelled the contract and were liable for the "marketing fee"
My grievances are:
1) If the fee became payable on signing of the contract, but is just waived as long as we are with them, this should have been made clear from the start.
2) They were useless!
3) We did see out the 16-week contract but there is a dodgy clause stating that after the 16 weeks, it will keep rolling - i.e. it is actually impossible to leave without "cancelling" and becoming liable for this fee. It is the eternal contract - sorry, i didn't realise you were the Devil!
My possible routes of defence are:
1) Any non-sale marketing fee is unusual and contrary to what anyone would reasonably expect - none of the other estate agents on this high street have a "marketing fee" and i can prove this if neccesary
2) They didn't fulfil their obligations properly (possibly hard to prove)
3) We were not made aware that liability for this fee is creating on signing the contract
4) A contract that is stated as being for a fixed period, but actually contains a clause to make it eternal, is unusual and unreasonable.
5) They have handled the whole dispute procedure unprofessionally (gibberish NIP, not responding within timescales, possibly wrong interest period on claim form?)
Some documents:
Moronic NIP
(was received in November 2011)
1) The name is stated as "Mr" (my wife's initial) (our surname).
2) a) On 27/06 you "was" sent a letter - no we weren't - we were only a few weeks into our contract at that point, and no dispute was even conceived of!
b) "you 'was' sent a letter"? FFS, can this cretin actually write proper English on a legal doc?
c) On 7th July another letter? Erm no - see a).
3) They are going to issue a claim within 7 days are they? Perhaps they meant 7 months, as that's what they took! Are they allowed to threaten these things and then not actually see it through?
Claim Form
Points:
1) they're claiming interest from the 27th of June? The invoice for this "fee" was not even sent until October, when the fee, if ever, supposedly became payable. What are they on about?
2) I resent them saying "despite chasing for payment". I made it absolutely clear from the start that i wanted this to go to court, and advised them of this by registered post on two occasions.
Anyway, this will most likely focus on UTCCR, so here are the points i will most likely be raising in respect of UTCCR:
So, it definitely CAN apply, as it was a pre-formulated standard contract.
Which specific aspects can i cite?
b) They were crap, and failed to get many viewings or return our many calls. But how do i prove "inadequate performance"?
c) I'm not quite sure i understand this one - it is a bit confusingly stated - but it seems like it could apply.
e) Not sure about this one, as it's a "fee" not compensation, and who says what's unreasonable?
f) They give themselves the right to cancel with no negative connotations, whereas cancelling makes us liable for this fee, even after completion of the initial stated period.
h) I think it applies, do you?
And just to reinforce this point, as it seems particularly inept:
they're claiming interest from the 27th of June? The invoice for this "fee" was not even sent until October, when the fee, if ever, supposedly became payable. We were still happily in contract and expecting them to sell our house on this date! What are they on about?
______________
The estate agent Haart are trying to sting us for a £180 "termination fee" after (what we thought was) the end of a contract.
This has been covered on various sites as a scam, e.g. http://www.allagents.co.uk/haart/
It may well be that they have us over a barrel, but considering what they did (n't do) for us during the contract, there is no way i am giving them a penny, and will fight it to the bitter end even if i have little chance.
Basically, the contract was for 16 weeks, which expired in September 2011. We contacted them to check they had stopped marketing the property, but they said they still required written notice even though the contract was up. This written notice triggered a £180 fee.
In regards to the fee, when we signed up the conversation with the agent was as so:
Me: So we only pay you if you sell the house right?
Haart: Yes
Me: And the contract's for 16 weeks?
Haart: Yes
Me: What's this £180 fee?
Haart: That's for if you terminate the contract.
Now, it turns out that how they scam you is that after the 16 week period, the contract continues on a rolling basis. They will ALWAYS sting you for a termination fee at some point! Needless to say, we would never have agreed had this been clear.
-Yes, estate agents are dodgy and yes the above statements were verbal only
-Yes, we should have read the contract. We did, and asked questions to clear things up.
I would say that their charge is possibly validated by the contract, but i would also say that it is massively onerous and misleading.
"Initial Period" is stated on the front of the contract as 16 weeks, starting 23/05/11
A few responses that have been raised by friends:
If the £180 does apply as a termination penalty when providing 16 days notice, then why have the 16 week initial period?
If that's the intention of the £180 then why not just say there's a £180 charge? Dressing it up as a "termination fee" in this way is clearly confusing and looks like an attempt to hide it. How many estate agents charge a "non-success" fee?
That The Office of Fair Trading v Foxtons Ltd [2009] EWHC 1681 (Ch) (10 July 2009) may be relevant
http://www.bailii.org/ew/cases/EWHC/Ch/2009/1681.html
“This is not the sort of clause a consumer landlord would expect when he goes to a letting agent to get a tenant for his property. He is not thinking about selling the property, whether to the tenant or to anyone else. He has agreed to pay a commission to Foxtons for their services in getting him his tenant. In Lord Millett's terms, I think that the typical consumer would not merely be surprised by it if it were pointed out before he signed up; he would be astonished. It is so far from what he would expect in a document whose opening words thank him "for instructing Foxtons to act on your behalf in marketing your property for rental", and which thereafter is solely concerned with the consequences and effect of rental, that he would think it had nothing to do with the transaction at all. If invoked against him he would, entirely understandably, think he had been ambushed. It is plainly unfair for the purposes of the Regulations.”
http://www.bailii.org/ew/cases/EWHC/Ch/2009/1681.html
“This is not the sort of clause a consumer landlord would expect when he goes to a letting agent to get a tenant for his property. He is not thinking about selling the property, whether to the tenant or to anyone else. He has agreed to pay a commission to Foxtons for their services in getting him his tenant. In Lord Millett's terms, I think that the typical consumer would not merely be surprised by it if it were pointed out before he signed up; he would be astonished. It is so far from what he would expect in a document whose opening words thank him "for instructing Foxtons to act on your behalf in marketing your property for rental", and which thereafter is solely concerned with the consequences and effect of rental, that he would think it had nothing to do with the transaction at all. If invoked against him he would, entirely understandably, think he had been ambushed. It is plainly unfair for the purposes of the Regulations.”
say Haart did nothing, and the property was unsold 100 years later, the fee would still be payable.
It is really a signing fee that is rebated if Haart earn commission on a sale. By dressing it up as a termination fee Haart are being unfair and misleading,
It is really a signing fee that is rebated if Haart earn commission on a sale. By dressing it up as a termination fee Haart are being unfair and misleading,
Then the plot thickens:
After sending me a NIP with completely wrong information written in Estuary English syntax, i replied again stating that i would not be paying the "fee" and require them to submit a claim in the county court within 28 days. This was in November (although their letter is not actually dated!)
I figured they must have crawled back in their holel but then i received another NIP in January, to which i replied again stating that in good faith i would give them a further 14 days to submit their claim. Both my communications were by registered post.
They have actually filed a claim now, and i am partly annoyed because i have plenty of other things to be doing, but partly pleased to have a chance to stand up to these bullies to hopefully create a precedent for all the other people who have been/are being scammed by them.
To recap:
-The contract is above, in my initial post
-The agent stated that it was a "standard 16-week contract" and that we would only pay the fee "if we cancelled the contract". This was stated in words though, although there were two of us that can attest to this.
-The service was terrible - they brought us less than 1 viewing per week, and never returned our many calls to try and get feedback
-The only reason we didn't ditch them after the first 2 months was because we wanted to see out the contract and not be charged the fee.
-After the 16 weeks were up we stated that we didn't want to extend it. They stated that there was a 2-week cancellation period, so we would still be tied for another 2 weeks
-After these 2 weeks they sent a letter stating that we had cancelled the contract and were liable for the "marketing fee"
My grievances are:
1) If the fee became payable on signing of the contract, but is just waived as long as we are with them, this should have been made clear from the start.
2) They were useless!
3) We did see out the 16-week contract but there is a dodgy clause stating that after the 16 weeks, it will keep rolling - i.e. it is actually impossible to leave without "cancelling" and becoming liable for this fee. It is the eternal contract - sorry, i didn't realise you were the Devil!
My possible routes of defence are:
1) Any non-sale marketing fee is unusual and contrary to what anyone would reasonably expect - none of the other estate agents on this high street have a "marketing fee" and i can prove this if neccesary
2) They didn't fulfil their obligations properly (possibly hard to prove)
3) We were not made aware that liability for this fee is creating on signing the contract
4) A contract that is stated as being for a fixed period, but actually contains a clause to make it eternal, is unusual and unreasonable.
5) They have handled the whole dispute procedure unprofessionally (gibberish NIP, not responding within timescales, possibly wrong interest period on claim form?)
Some documents:
Moronic NIP
(was received in November 2011)
1) The name is stated as "Mr" (my wife's initial) (our surname).
2) a) On 27/06 you "was" sent a letter - no we weren't - we were only a few weeks into our contract at that point, and no dispute was even conceived of!
b) "you 'was' sent a letter"? FFS, can this cretin actually write proper English on a legal doc?
c) On 7th July another letter? Erm no - see a).
3) They are going to issue a claim within 7 days are they? Perhaps they meant 7 months, as that's what they took! Are they allowed to threaten these things and then not actually see it through?
Claim Form
Points:
1) they're claiming interest from the 27th of June? The invoice for this "fee" was not even sent until October, when the fee, if ever, supposedly became payable. What are they on about?
2) I resent them saying "despite chasing for payment". I made it absolutely clear from the start that i wanted this to go to court, and advised them of this by registered post on two occasions.
Anyway, this will most likely focus on UTCCR, so here are the points i will most likely be raising in respect of UTCCR:
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.
(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.
Which specific aspects can i cite?
(5) Schedule 2 to these Regulations contains an indicative and
non-exhaustive list of the terms which may be regarded as unfair.
SCHEDULE 2
(b) inappropriately
excluding or limiting the legal rights of the consumer vis-à-vis the seller or
supplier or another party in the event of total or partial non-performance or
inadequate performance by the seller or supplier of any of the contractual
obligations, including the option of offsetting a debt owed to the seller or
supplier against any claim which the consumer may have against him;
(c)
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;
(f)authorising
the seller or supplier to dissolve the contract on a discretionary basis where
the same facility is not granted to the consumer, or permitting the seller or
supplier to retain the sums paid for services not yet supplied by him where it
is the seller or supplier himself who dissolves the contract;
(h)automatically
extending a contract of fixed duration where the consumer does not indicate
otherwise, when the deadline fixed for the consumer to express his desire not
to extend the contract is unreasonably early;
non-exhaustive list of the terms which may be regarded as unfair.
SCHEDULE 2
(b) inappropriately
excluding or limiting the legal rights of the consumer vis-à-vis the seller or
supplier or another party in the event of total or partial non-performance or
inadequate performance by the seller or supplier of any of the contractual
obligations, including the option of offsetting a debt owed to the seller or
supplier against any claim which the consumer may have against him;
(c)
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;
(f)authorising
the seller or supplier to dissolve the contract on a discretionary basis where
the same facility is not granted to the consumer, or permitting the seller or
supplier to retain the sums paid for services not yet supplied by him where it
is the seller or supplier himself who dissolves the contract;
(h)automatically
extending a contract of fixed duration where the consumer does not indicate
otherwise, when the deadline fixed for the consumer to express his desire not
to extend the contract is unreasonably early;
c) I'm not quite sure i understand this one - it is a bit confusingly stated - but it seems like it could apply.
e) Not sure about this one, as it's a "fee" not compensation, and who says what's unreasonable?
f) They give themselves the right to cancel with no negative connotations, whereas cancelling makes us liable for this fee, even after completion of the initial stated period.
h) I think it applies, do you?
And just to reinforce this point, as it seems particularly inept:
they're claiming interest from the 27th of June? The invoice for this "fee" was not even sent until October, when the fee, if ever, supposedly became payable. We were still happily in contract and expecting them to sell our house on this date! What are they on about?
Comment