Estate Agent is taking me to court

baz111_2

I rented the property via an estate agent in Nov 2012. As soon as we moved in the landlord approached us saying that once this tenancy agreement is over he would like to rent privately in order not to pay agent fees, I agreed as he said he would lower the rent.

Around a month ago the estate agent sends a parcel (in order for us to sign for it) with just a letter inside it saying that we owe them £1400 odd, as we signed a new tenancy agreement directly with the landlord, enclosed was a copy of a paper i signed stating that we will not sign directly with landlord. The landlord also got a similar letter. We ignored it thinking he just wants to spook us.

But sure enough i received a claim form from the court.
Do i have a case as we did not sign a new tenancy agreement directly when the previous one expired.

If anyone knows anything, please reply.
Thank you

tom9980

What does it say on the "paper you signed" with the agent? we have no idea what has been written on that document. More specifically what does it say exactly if you do not comply?

princeofpounds

Don't worry, but if there is to be a court hearing you will need to defend it.

I think it is highly unlikely you will suffer from this anything more than inconvenience.

You likely never had a contract with the agent. Your landlord did, so he may have an issue, but this is not your problem.

Can you please give more detail on the statement you signed. What exactly does it say? Where did it appear? It is almost certainly unenforceable but detail will help.

Finally your actions have caused no loss or damage to the agent. Only the landlord has, as he stopped paying them. So even if you had a contract with the agent (which you probably didn't) and that was an enforceable term (which it isn't most likely) then there are no damages to compensate.

G_M

As above. More info needed.

But my instinct is that a court is unlikely to find in favour of the EA.

1) do you have a contract with said agent? I doubt it.

2) Is this an unfair term? Probobly.

But whatever, if the EA has started court action, you will need to enter a defense.

The landlord, I suspect, is much more likely to be vulnerable. He does (or did) have a contract with the EA.

But the Foxtons case may be relevant (for the LL):

http://oft.gov.uk/news-and-updates/press/2011/82-11

baz111_2

On the paper i signed it stated that if i wish to continue to reside there and renew the tenancy agreement i would have to contact the EA 1 month prior to the expiration and cannot contact the LL directly in regards to renewal as those are the terms of the agency and if i do i will be liable to pay 6% + VAT of the annual rent.

I signed it without reading it as i was in need of a property compatible with my family.

I believe he also contacted the landlord asking him for similar amount of money. Which means he will be making more than had we renewed with him!

TrixA

You said the landlord approached you and not vice versa, so I don't see how you've breached the terms of the paper you signed.

They may have a case against the landlord given that they could argue that they put in the work and expense to find you as a tenant, and therefore would have a reasonable expectation of an ongoing revenue stream if you were happy and stayed in the property. In much the same way that someone selling a house can't just decide to sell privately to someone the agent has introduced.

Contacting both you and the landlord seems typical of the mindset of letting agents, thinking they can double dip and charge both tenant and landlord for the same service.

princeofpounds

It's not even a well-drafted clause.

First thing you need to do is contact the court, make sure you understand when the hearing is, how it is being conducted, how to file a defence and so on. Court clerks can give you basic procedural information. I assume this is a simple small claims court job.

Then decide whether you want to get legal advice or not. This will help you compile a defence, but it will cost money and you won't be able to recover much costs like this in small claims (neither would you ever typically have to pay significant costs of the other side thankfully - there is a small fixed limit). If you spend time on research, you probably don't need it but the option is always there.

If it is a normal small claims court case, you don't really need to worry too much about defending yourself as long as you have enough money to pay if you lose, as any CCJ will only go on your credit record after a brief period of non-payment (~10 days IIRC). Small claims is also designed to be defended in person, with the judge helping with procedure and in a relatively less formal setting.

So, then I would think about a framework for defence. Try to think about is systematically. I would start from something like this:

- You had no contract with the agent (e.g. there has been no exchange of consideration, the paper was signed under duress)

- Even if you did, the clause is not enforceable ( read all of the following link, especially the principles of unfair terms: http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf)

- Even if it was enforceable, it doesn't apply due to details in the wording. (I can think of a few things here... look at the specific wording)

- Even if it did, your actions caused no loss or damage to the agent (the compensation they are looking for is an unlawful penalty not a genuine pre-estimate of loss http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Food/Developments_in_the_law_to_penalty_clauses_300311
and their loss from your actions is zero anyway)

I mean I could slice this up a hundred different ways with a few hours research... you just need to work on this. Consumer action forums might be able to help with this now I think of it.

http://www.adviceguide.org.uk/wales/law_w/law_legal_system_e/law_taking_legal_action_e/small_claims.htm
http://www.courtroomadvice.co.uk/small-claims-court-defendant.html
and many other links from google...

ging84

assuming you even did have a contract with the agent some other things to think about are,
Was this financially onerous clause made clear to you when you signed the contact.

Why is this penalty being applied to both you and the landlord, assuming the landlord was being charged a 6%+vat fee, but your were just paying standard rent, if you both paid up, they would end up with double what they would have ended up with, so the claim for damages would well exceed the loss suffered due to the breaches of contracts.

thequant

princeofpounds wrote: »

It's not even a well-drafted clause.

First thing you need to do is contact the court, make sure you understand when the hearing is, how it is being conducted, how to file a defence and so on. Court clerks can give you basic procedural information. I assume this is a simple small claims court job.

Then decide whether you want to get legal advice or not. This will help you compile a defence, but it will cost money and you won't be able to recover much costs like this in small claims (neither would you ever typically have to pay significant costs of the other side thankfully - there is a small fixed limit). If you spend time on research, you probably don't need it but the option is always there.

If it is a normal small claims court case, you don't really need to worry too much about defending yourself as long as you have enough money to pay if you lose, as any CCJ will only go on your credit record after a brief period of non-payment (~10 days IIRC). Small claims is also designed to be defended in person, with the judge helping with procedure and in a relatively less formal setting.

So, then I would think about a framework for defence. Try to think about is systematically. I would start from something like this:

- You had no contract with the agent (e.g. there has been no exchange of consideration, the paper was signed under duress)

- Even if you did, the clause is not enforceable ( read all of the following link, especially the principles of unfair terms: http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf)

- Even if it was enforceable, it doesn't apply due to details in the wording. (I can think of a few things here... look at the specific wording)

- Even if it did, your actions caused no loss or damage to the agent (the compensation they are looking for is an unlawful penalty not a genuine pre-estimate of loss http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Food/Developments_in_the_law_to_penalty_clauses_300311
and their loss from your actions is zero anyway)

I mean I could slice this up a hundred different ways with a few hours research... you just need to work on this. Consumer action forums might be able to help with this now I think of it.

http://www.adviceguide.org.uk/wales/law_w/law_legal_system_e/law_taking_legal_action_e/small_claims.htm
http://www.courtroomadvice.co.uk/small-claims-court-defendant.html
and many other links from google...

great post, just one small correction. The period of being able to pay without the judgement being recorded against you is 4 weeks or a month (cant remember exactly which).

Also the judgement does go immediatly on your record however it is removed if payment is made within the proscribed timescales.

princeofpounds

and many other links from google...great post, just one small correction. The period of being able to pay without the judgement being recorded against you is 4 weeks or a month (cant remember exactly which).

Also the judgement does go immediatly on your record however it is removed if payment is made within the proscribed timescales.

Thanks, I tried to caveat my recollection!

thequant

Just one thing to add from myself, is that from your openign post it sounds like your claimant is well versed in using the court system. So please follow all timescales and instructions from the court to the letter or otherwise you will probably find him applying for a summary judgementas quick as you know it