Is my contract with the holiday cottage "frustrated"?

greensalad

My cousin was due to marry in Devon this April. We had booked out two cottages side by side at a large venue for our family to stay, 16 of us in total. We booked and paid a non-refundable deposit of 25%.

My cousin decided to cancel the wedding last month so I spoke to the holiday rental about cancelling the cottages. They've agreed to cancel in terms of the 75% due, but say they will need to retain the 25% unless the cottages are booked by someone else, or if the venue was closed/locked down. At the time I accepted this based on the contract we had (which was 25% retained if we cancelled up to 6 weeks in advance) and crossed my fingers that someone would book the cottages if holiday plans were improving. 

However, now with the news that Matt Hancock has said that people absolutely should not be booking holidays for summer it seems that getting new bookings for April is slim. I understand people may not be stopped as it's only a guideline but I feel like it's really cut our chances of getting anyone else to book the dates we reserved so seems very unlikely. 

I have been reading the CMA "Statement on coronavirus (COVID-19), consumer contracts, cancellation and refunds", particularly the "Non-refundable payments and fees" section. I understand this is not law, but it seems to be very strong guidance against holding our non-refundable deposit in this situation. I wanted to get some advice on whether we might have a right to appeal for the return of our non-refundable deposit based on the present situation.

https://www.gov.uk/government/publications/cma-to-investigate-concerns-about-cancellation-policies-during-the-coronavirus-covid-19-pandemic/the-coronavirus-covid-19-pandemic-consumer-contracts-cancellation-and-refunds

"Where lockdown laws make it reasonably likely that the contract will not be able to be performed at the time agreed, it is likely that the contract will be ’frustrated’ under the law at the point this becomes clear. As a result the contract will come to an end and consumers should be entitled to receive a refund."

Current lockdown laws make it reasonably likely that we won't be able to attend. However, as it's April, maybe it will be open. But what happens if lockdown laws do open up by only, say, a week before our booking? It would mean a very short amount of time for anyone to rebook, but the cottage would remain open.

Just looking for any thoughts or suggestions on whether I can get this 25% returned. I'm sure you can imagine a 16 person property is quite expensive even if it is only 25%.

[Deleted User]

It's highly unlikely, if the property is still open and available.

You just have to hope that someone else takes up the booking.

FaceHead

You have every right to contact the provider and ask them to refund the deposit, which you might as well do. 

The contract you have with them is that they will make the property available to you and your party, and you will pay them the money. Your actual turning up, e.g. if you were in a local lockdown, is (I'm sorry to say) not relevant to the contract. They may choose to refund you anyway.

Are each of the two cottages to be stayed in by people from multiple households? If so, then on that basis the property won't be made properly available if the law continues to prevent multiple households mixing, and you'd be due a refund. You'd have to wait and see what the situation is at the time.

Thrugelmir

If the venue is still closed, which is highly likely. Then appears that a refund of the deposit will be made.  

The reopening of schools is likely to be monitored closely. With no rush decisions to allow mass movement within the country.  

Jilly888

I am supposed to be staying in a large house that sleeps 10 at the end of February 2021 in the UK. It was booked through an agency. It has been difficult to contact the owner but after several attempts she got in contact to say that she would only offer a 50% refund, as it will be illegal for both parties for us to travel and occupy the property. The owner has been quite keen for us to cancel the booking though we are aware that there was a non-refundable policy in place when we booked. We feel that she wants us to state that we are cancelling as then our chance of being compensated is lost. I have spoken to the agency but they insist that we have entered into a contract with the owner and all they can do is contact her to suggest she allows us to change the date. They have said that she will receive the total fee, including a considerable damage deposit, the day after we should have arrived. She has now taken the property off the agency website which does not fill us with confidence about future communication, as this has already been difficult.

We have expressed a desire to occupy the property (if we were able) and are keen and totally flexible in terms of getting rearranged dates. Failing that, we are currently seeking a full refund as we are not cancelling-the contract has been frustrated. I feel that it is unfair to expect us to pay half  towards a holiday that will now not happen, as well as contributing towards a cleaning fee and damage deposit when we haven't even entered the property. The booking was made a year ago so the owner and the agency have benefitted from our payment being made well in advance. The property sleeps ten so the overall cost is quite considerable. The agency's own website encourages owners to roll over holiday dates into 2022, without extra cost, or provide a refund. I have seen that the CMA are also stating that:

In particular, for most consumer contracts, the CMA would expect a consumer to be offered a full refund where:

·         a business has cancelled a contract without providing any of the promised goods or services

·         no goods or services are provided by a business because this is prevented by the lockdown laws

The agency's website reiterates this message:

We are asking partners to offer a full credit for flexible stay dates within the next year (at no additional cost). If the guest is unwilling or unable to accept the credit, we advise working with our partner on an acceptable refund, and we have incentivised our partners to go above and beyond their standard policies.

I would welcome other forum members' views on this, I appreciate that covid is an unprecedented event but I wondered whether there is any existing recent case law that clarifies a case like ours. We also realise that our last resort may have to be a legal pursuit, via the small claims court. Again, I would welcome any advice re this, as well as whether it would be a case likely to succeed. One potential obstacle, I imagine, is that the courts are likely to be clogged for a long time, due to covid delays and a backlog of similar cases.

Thanks for your help, this is my first post on here so I don't mind people speaking plainly but please be kind as this has been very stressful! 

 

Upsidedownandaround

When did you book?

sheramber

At the moment hospitality is closed so unless Boris changes anything on 22 February- unlikely- she will have to cancel as she is not allowed to let you stay. 

CKhalvashi

If booked after approximately March 10, there will be no chance of using 'Frustration of contract' as an excuse, as Coronavirus became a known event. If the venue is closed, then you will have a right to a full refund (although actually enforcing that right may be difficult and take a long time), however if the venue is open, you will be able to choose from the options that are presented to you by the venue or their agent.

April is too far to plan ahead for right now, and for definite information we will need to wait at least a few weeks for the government to begin planning for revisions in the current lockdown. This is scheduled to begin on 22 February and may be subject to change again.

If your cousin wishes to use the venue/properties in the future, it may be possible to negotiate a bespoke voucher arrangement to ensure that the cost doesn't rise. This may naturally be beneficial to both of you, as many properties are increasing their prices significantly at present, so the saving will be the difference between the price paid and the price if new dates are booked now.

@Jilly888 , please post this in your own thread and I will answer (hopefully @silvercar or another guide can move it for you). Your question is not within the remit of this thread and I don't want to complicate things for the OP here.

Thrugelmir

 Jilly888 said:

I am supposed to be staying in a large house that sleeps 10 at the end of February 2021 in the UK. It was booked through an agency. It has been difficult to contact the owner but after several attempts she got in contact to say that she would only offer a 50% refund, as it will be illegal for both parties for us to travel and occupy the property. The owner has been quite keen for us to cancel the booking though we are aware that there was a non-refundable policy in place when we booked. We feel that she wants us to state that we are cancelling as then our chance of being compensated is lost. I have spoken to the agency but they insist that we have entered into a contract with the owner and all they can do is contact her to suggest she allows us to change the date. They have said that she will receive the total fee, including a considerable damage deposit, the day after we should have arrived. She has now taken the property off the agency website which does not fill us with confidence about future communication, as this has already been difficult.

We have expressed a desire to occupy the property (if we were able) and are keen and totally flexible in terms of getting rearranged dates. Failing that, we are currently seeking a full refund as we are not cancelling-the contract has been frustrated. I feel that it is unfair to expect us to pay half  towards a holiday that will now not happen, as well as contributing towards a cleaning fee and damage deposit when we haven't even entered the property. The booking was made a year ago so the owner and the agency have benefitted from our payment being made well in advance. The property sleeps ten so the overall cost is quite considerable. The agency's own website encourages owners to roll over holiday dates into 2022, without extra cost, or provide a refund. I have seen that the CMA are also stating that:

In particular, for most consumer contracts, the CMA would expect a consumer to be offered a full refund where:

·         a business has cancelled a contract without providing any of the promised goods or services

·         no goods or services are provided by a business because this is prevented by the lockdown laws

The agency's website reiterates this message:

We are asking partners to offer a full credit for flexible stay dates within the next year (at no additional cost). If the guest is unwilling or unable to accept the credit, we advise working with our partner on an acceptable refund, and we have incentivised our partners to go above and beyond their standard policies.

I would welcome other forum members' views on this, I appreciate that covid is an unprecedented event but I wondered whether there is any existing recent case law that clarifies a case like ours. We also realise that our last resort may have to be a legal pursuit, via the small claims court. Again, I would welcome any advice re this, as well as whether it would be a case likely to succeed. One potential obstacle, I imagine, is that the courts are likely to be clogged for a long time, due to covid delays and a backlog of similar cases.

Thanks for your help, this is my first post on here so I don't mind people speaking plainly but please be kind as this has been very stressful! 

 

What does the contract say with regards to cancellation of the booking by the provider? 

silvercar

CKhalvashi said:

@Jilly888 , please post this in your own thread and I will answer (hopefully @silvercar or another guide can move it for you). Your question is not within the remit of this thread and I don't want to complicate things for the OP here.

Sorry, I can’t split a post out to be a thread on its own.

CKhalvashi

silvercar said:

CKhalvashi said:

@Jilly888 , please post this in your own thread and I will answer (hopefully @silvercar or another guide can move it for you). Your question is not within the remit of this thread and I don't want to complicate things for the OP here.

Sorry, I can’t split a post out to be a thread on its own.

Thanks Silver, apologies for tagging you, you were the only board guide I could think of to hand.