Unfair contract terms in proposed tenancy agreement

Reply to the comment left by "DC " at "07/02/2014 - 17:20":

Hmm!
One lives and learns.

Great link; a good read.

Thanks.

Reply to the comment left by "Industry Observer " at "07/02/2014 - 15:36":

Having read DCs link, I stand corrected (and that is the joy of this web site).

The Noise term certainly falls foul of the Plain English rule. I guess I was considering the intent rather than the expression.
However, the DC link does say that if it is a covenant in the landlord's lease or deeds, then it would not be deemed unfair.

Glass: yes, all external glass is landlord's responsibility.

Repairs: yes, whilst the sentiments are reasonable the wording is not.

Reply to the comment left by "Mark Alexander" at "07/02/2014 - 15:36":

OK. You win 🙂

I've been reading too many leasehold and freehold agreements, which make the term seem reasonable.

The clauses about noise etc have a caveat...so as not to disturb etc. I agree its a bit early (9pm to 9am) but most apartment leases have this in restrictive covenants. So if the property is an apartment then the agent may have lifted it from the lease or tried to and made a pigs ear of it. Like they seem to have done with the others. In any case breaches of the tenancy agreement and leases on noise are notoriously difficult to enforce and usually involve environmental health.

'DC' thank you for posting that link, very interesting to read....

...quite an eye-opener...I've only got to page 37 so far (out of 127 !!)
But I do read everything very carefully!

So, when one of the big high street letting agents take a holding deposit of £200 per person before they reference/credit check a tenant, the agent is only allowed to retain a "reasonable amount" for their costs if the tenant fails the check, not all of it !!
- They told me the tenant doesn't get a refund, and so "only serious tenants will apply" !
- So that's an unfair term - Interesting !
Ref: Para 3.41/3.42

Just to pull out some points from the document to which 'DC' has posted the link:
These paragraphs are pertinent to Maggie's situation, IMO:

Group 9: Binding consumers to hidden terms28 - paragraph 1(i) of Schedule 2

3.79 Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract.

3.80 We consider terms that bind tenants to unseen obligations unfair. It is a basic requirement of contractual fairness that consumers should always have an opportunity to read and understand terms before becoming bound by them (see Chapter 5, Group 19).

Pre-contract deposits
3.85 If the landlord or agents take a non-refundable pre-contract deposit, they may in effect bind the prospective tenant to accept terms 'sight unseen'. We are likely to consider a non-refundable deposit to be unfair in any case (see Group 4), and it is particularly open to challenge where tenants become bound before they have the chance to become acquainted with the terms of the tenancy agreement.

These Paras, coupled with Paras 3.41 and 3.42, referred to above, give Maggie a good basis to claim back most of her £500 fees (£150 each credit check+£200 property holding fee), less reasonable expenses, back from the agent, if she wishes to do so.

All posted is IMO only - I am not a financial advisor - any person should take their own legal advice.

Reply to the comment left by "Jeremy Smith" at "08/02/2014 - 01:03":

Hi Jeremy

I totally agree, hence my reason for first comment and subsequently following it up with this link.

UTCCR also applies to all of the residential mortgage borrowers affected by the BoI scandal, hence we are supremely confident of a win on that case if we can raise enough money to fight it.

Sadly, whilst the OFT vs Foxtons case acknowledged that a landlord can also benefit from the protection of UTCCR it did not establish when a landlord ceases to be a consumer. That's probably why West Brom have created their arbitrary ruling for increasing tracker rate margins for people with 3 or more properties. Nevertheless, the implementation was a complete dogs dinner as the UTCCR rules would be applied at the commencement of the contract and not in September 2013 which is the date that West Brom arbitrarily decided to choose.
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Reply to the comment left by "Jeremy Smith" at "07/02/2014 - 20:03":

Thanks Jeremy that's a really interesting point. I would love to meet the landlord, as I'm sure he'she isn't aware of what the letting agency agreements look like, but perhaps I'm wrong. I wasn't sure if the letting agency would look kindly to that or not, but it's worth asking I suppose.

Thank you so much to everyone for the comments. This is really helpful and I am hugely grateful. I am now armed with some decent, legal documents and a much better understanding. I am fully supportive of the tenancy agreement being fair. I don't intend to cause any disturbance or damage to the property. I am just wary of signing a legal document which could end up costing me a lot of money and stress.

I plan to ask the letting agency to remove these points and replace them with something deemed to be a "fair" representation of the intention. I'm not sure what the response will be. I'll keep you posted.

I do want the apartment, though I am wary of letting agencies - I've been looking for somewhere to live for months now, the last place I found in December, but it was advertised by 2 letting agencies, and one had let it without informing the other agency, so even though I thought we had got it, we hadn't. Unfortunately there's almost nothing being advertised in this area with private landlords.

Many thanks!

Two points

First if as Mark says the terms only become binding when the contract is signed then the references quoted by Jeremy may not stack up. If Maggie hadn't seen the contract before commencement day that would be very different. What has happened here is she has paid fees then not liked the clauses in the contract.

Second no way on this planet Maggie is the agent going to let you talk to the Landlord and probably no way the Landlord would be prepared to meet you anyway.

Sad but true