Cancelling a Builders Contract - 7 day cooling period?

browneyedbazzi

MrsJNair wrote: »

Or have I completely misread it?

No, you haven't. The fact that you invited him to your home isn't relevant in this situation.

Also, either he has taken advice from a solicitor who has no idea what they're talking about or he's fabricated the 'advice' because no solicitor who knows anything about the regs would tell someone they are exempt because they are a sole trader.

ETA Iif he's knowingly failed to give cancellation rights when he should have (ie if he's ever received advice from TS about cancellation rights in the past) then his failure to provide you with the notification is a S3 Fraud, and demanding an unlawful cancellation fee is a straightforward S2 Fraud.

mo786uk

the regulatiosn apply to 'traders' so whetehr they are ltd or sole traders is irrelevant

if you havent paid any money then just send him a written cancelaltion notice and forget it

if he is a sole trader and is trading as anything other than his name then he should have his name on the contract

arcon5

Op -- this company are speaking out of the !!!!.

It's applicable to business' irrespective of the business format (sole trader ,ltd company ect).

They are clearly going to try every trick in the book to detain your money. Make sure you send your cancellation request in writing, send by registered post, retain proof of delivery! Or send them an email and make sure you get confirmation they received their email. Otherwise after the cancellation period passes they are likely to deny you cancelled the contract leaving it your word against theirs.

http://www.legislation.gov.uk/uksi/2008/1816/pdfs/uksi_20081816_en.pdf

MrsJNair

Thank you for all your responses.

My husband spoke to them today to try and reach a middle ground and settle things for a mutually agreeable amount for costs incurred so far since even if we have to go through lawyers, it will still cost money.

Interestingly, this time they did not bring up the 'Sole Trader' point again.

But are now arguing that all the terms and conditions were understood before they came to my residence to sign the contract. But isn't the contract concluded at the signing of the papers? Or have I got it wrong here? I think this is what makes or breaks the case.

Also, they said that they have already procured materials (the work was supposed to start only on 7th of November) over £1,000 and that they have bills to prove it. And that if we go to the court, then we will end up loosing more than £1,000.
(In the contract, the 1st payment schedule is for materials and that is not until 1st of November..... so I don't know why they procured the materials already)

They have also sent us a letter from their lawyer demanding the payment of the cancellation fee within 7 days. This will reach us tomorrow. I presume this must be the pre-action protocol for court action.

A question.... may sound a bit silly..... Does getting such a letter have any impact on my credit history?

mo786uk

Firstly - how much is the total cost for the job?
What type of work is it?
Are they claiming to have already bought materials for this specific job?
Have you already handed over the materials?

The Doorstep Regs kick in
1) in certain situations
2) when the contract is agreed

so..

1) the most likely situation is that you agreed the contract whilst the trader was in your home - can you confirm?

2) contracts can be agreed verbally and you may well have agreed the contract before you signed the paperwork (which I presume is a written document) - it will be hard for him say the contract was agreed verbally at another time if he got you to sign a contract.

It is also a criminal offence for him to fail to supply a correct cancellation - presuming he had to in the first place.

Remember though - the regulaitons do not apply if you agreed to the contract whilst he was not in your home - for exmaple he came, gave you a quote, and you agreed to it later on the phone.

Letter will not affect your credit rating.

Let us know what the letter says.

I would be inclined to call back Consuemr Direct and update - your local Trading Standards (will get the data from CD) may assit if they feel it is necessary based on what you said to CD.

MrsJNair

The total cost of the job is £3,510.

The work is to refurbish the kitchen except painting and decorating - removing the existing kitchen, tiles and fitting the new kitchen and tiles with electrics and plumbing. etc

Yes, they are claiming to have brought materials for this job.

Remember though - the regulaitons do not apply if you agreed to the contract whilst he was not in your home - for exmaple he came, gave you a quote, and you agreed to it later on the phone.

This is exactly what my worry is.
The trader & I had conversed over the phone and emails. I was provided the quote in the email. I emailed them to let them know that we are happy to go ahead with them for the work and when they can come over to sign the contract.
When they came home, we discussed a few more points before we signed the contract.
I believe I had the chance to say no to the work before I signed the contract even when they were at home.

However when I spoke to Consumer Direct they had told me that what matters is where the contract was concluded.

Another point is that, when they came over, they gave me a copy of their terms and conditions. This is different to the terms and conditions they gave me at the time of signing the contract at home. Eg: Their cancellation fee amount is different, the late payment fee is different etc

MrsJNair

Remember though - the regulaitons do not apply if you agreed to the contract whilst he was not in your home - for exmaple he came, gave you a quote, and you agreed to it later on the phone.

The contract says....'Before we start ANY job there must be a written contract with the customer where XXX Builders and customer......'

arcon5

If he has purchased parts already (ie before the end of your cancellation period) this still gives you the right to cancel.... however, the regulation states the following

(2) Where the consumer cancels a specified contract in accordance with regulation 8 he shall be under a duty to pay in accordance with the reasonable requirements of the cancelled contract for goods or services that were supplied before the cancellation.

If he has purchased goods he can charge you for them -- he must also supply you with the goods purchased. So for example, if you cancel and he has purchased £500 of materials, he would need to reimburse you £500 + supply you with the goods. If they are unable to do this, they will struggle to justify not returning the whole deposit in full.

This may also be of use to you:

5. These Regulations apply to a contract, including a consumer credit agreement, between a consumer and a trader which is for the supply of goods or services to the consumer by a trader and which is made—
(a)during a visit by the trader to the consumer’s home or place of work, or to the home of another individual;
(b)during an excursion organised by the trader away from his business premises; or
(c)after an offer made by the consumer during such a visit or excursion.

The fact you emailed them and confirmed afterwards is irrelevant. They visited you at your home, made their offer, you later acceped as in 5(c).

arcon5

MrsJNair wrote: »

Thank you for all your responses.

My husband spoke to them today to try and reach a middle ground and settle things for a mutually agreeable amount for costs incurred so far since even if we have to go through lawyers, it will still cost money.

Your doing to right thing by trying to sort it amicably. However, you will not need a solicitor. You have an undisputable right to cancel within 7 days and are liable for any materials purchased (which they should also supply to you -- otherwise you can easily argue they have suffered no loss).

Interestingly, this time they did not bring up the 'Sole Trader' point again.

Because it's a ridiculous argument. They are acting in a business capacity and not exempt from the law.

But are now arguing that all the terms and conditions were understood before they came to my residence to sign the contract.

Irrelevant, you cannot contract out statutory rights for B2C transactions.

But isn't the contract concluded at the signing of the papers? Or have I got it wrong here? I think this is what makes or breaks the case.

If by concluded you mean legally binding, then yes it is.... you have a contract with them -- but as part of that contract is a right to cancel. A statutory right which irrespective of whether it is stated or not, is implied.

Also, they said that they have already procured materials (the work was supposed to start only on 7th of November) over £1,000 and that they have bills to prove it. And that if we go to the court, then we will end up loosing more than £1,000.

(In the contract, the 1st payment schedule is for materials and that is not until 1st of November..... so I don't know why they procured the materials already)

Challenge them on this. It's unlikely they have, they are looking for a way to keep you in the contract by the sounds of it.

They have also sent us a letter from their lawyer demanding the payment of the cancellation fee within 7 days. This will reach us tomorrow. I presume this must be the pre-action protocol for court action.


A question.... may sound a bit silly..... Does getting such a letter have any impact on my credit history?

No. Because a letter from a solicitor isn't a form of credit. Don't be intimidated by a solicitors letter!!

This sounds to me like stalling tactics or bully boy tactics or both.

I'm sure they can provide invocies for materials -- they will have hundreds of invoices for materials for hundreds of jobs. If they phone you and say come and collect your materials and we wan't our money then they will be in a stronger position.

Remember also, they would have to mitigate their losses. Which for example could mean them sending the materials back to the manufacturer, incurring restocking fees then passing the bill on to you (which is lawful). Although some manufacturers won't accept returns, in which case the above is applicable.

Sorry the information is all over the place, but there's alot of 'if this' 'if that' to your situation.

Don't be intimidated or allow them to confuse you with legal jargon, threats, ect ect.
In reality, they are unlikely to use a solicitor in court --- it would be the small claims track for which they wouldn't be able to reclaim their fees. Infact the whole small claims process is very user-friendly and can be quite lengthy if you reach hearing stage.

arcon5

NCISROCKS wrote: »

Personally I'd ignore arcon5's advice. They tend to speed read and frequently post wrong replies. Because of that and to their credit they usually apologise...ect?...Etc surely?

Do you care to point out which bit of advice was wrong and offer the correct advice?

Strange that you haven't offered any advice yet, maybe because you don't have anything with any substance to add other than ridiculous comments................

:rotfl::rotfl: