Total Fitness will not let me cancel my contract

Anonperson

I have tried to cancel my contract with Total Fitness as I am moving and the closest TF gym is over 10 miles away.
Next month is my 12th month as a member and on the contract it states I have to give a 30 day notice. After giving my notice in i recieved the following response
"Good Afternoon 
Further to your recent email regarding your Total Fitness membership.
We are sorry to hear that you want to leave Total Fitness. 
We appreciate that the current circumstances have been out of your control. However due to the closure of our facilities, your membership has been extended for the months that we were closed. We confirm that the membership agreement still stands, therefore you are within the contracted period of your agreement and your membership cannot be cancelled until the twelfth and final payment has been made.
Should you wish to cancel your membership upon your annual renewal, please confirm this in writing to membership@totalfitness.co.uk allowing one full calendar months' notice.
We thank you for your cooperation in this matter."

So I signed an agreement but it has been closed for 7 months of the 12 due to the Pandemic. Obviously no one here is to blame but i'd like to know where i stand. In the agreement it states 
"2.1 The Agreement will be for a term not less than 12 months from the date of the membership agreement, if paying monthly installments you will be required to make a minimum of 12 full Direct Debits"
They decided to not take payments as a good will gesture but never mentioned that they will be extending the agreement on any of the emails they sent out.

Any advice on where I stand and what I can say to cancel the agreement with out penalty would be appreciated 

Aylesbury_Duck

This has come up here before, and I think the informed view was that they have breached their contract and cannot hold you to the contract extension, even though they didn't charge you for the closed period.  The agreement was for 12 months and the 12 months is up.  They can't hold you in it beyond then without your consent.

unholyangel

As above, they were in breach of contract by not providing access. They cannot make you liable for their breach by extending your minimum membership period. If they cannot provide services, they lose the right to charge for those services, they do not have any right to charge you for different months unless you have expressly (not implied) agreed to the change. 

It may not be within their control but neither is it in yours. 

Assuming you don't have a finance agreement, cancel any reoccurring payment to them and inform them of the above. They could try to take you to court but you'd have a defence that you terminated the agreement in response to their breach. If there is finance you need to be more careful as cancelling payment can result in a default on your credit history. 

Anonperson

unholyangel said:

As above, they were in breach of contract by not providing access. They cannot make you liable for their breach by extending your minimum membership period. If they cannot provide services, they lose the right to charge for those services, they do not have any right to charge you for different months unless you have expressly (not implied) agreed to the change. 

It may not be within their control but neither is it in yours. 

Assuming you don't have a finance agreement, cancel any reoccurring payment to them and inform them of the above. They could try to take you to court but you'd have a defence that you terminated the agreement in response to their breach. If there is finance you need to be more careful as cancelling payment can result in a default on your credit history. 

amaing, thank you for this. They actually took a month's payment too during a closure and told me they would roll it over so i didn't pay for the first month it opened. I'm assuming I am within my right to ask for a refund?

unholyangel

Anonperson said:

unholyangel said:

As above, they were in breach of contract by not providing access. They cannot make you liable for their breach by extending your minimum membership period. If they cannot provide services, they lose the right to charge for those services, they do not have any right to charge you for different months unless you have expressly (not implied) agreed to the change. 

It may not be within their control but neither is it in yours. 

Assuming you don't have a finance agreement, cancel any reoccurring payment to them and inform them of the above. They could try to take you to court but you'd have a defence that you terminated the agreement in response to their breach. If there is finance you need to be more careful as cancelling payment can result in a default on your credit history. 

amaing, thank you for this. They actually took a month's payment too during a closure and told me they would roll it over so i didn't pay for the first month it opened. I'm assuming I am within my right to ask for a refund?

Assuming you mean a month they didn't provide services then yes. 

I have reservations over the probability of them giving it though, since they apparently lack even a basic understanding of contract law and think they can just unilaterally vary your contract to their benefit and your detriment.

No harm in asking. Or if it's not worth the hassle, you can always wait and see if they try take you to court then inform them you'll be counter claiming for the refund. If your contract doesn't have a clause allowing them to suspend provision for circumstances beyond their control....you could also technically counterclaim for any costs incurred finding a replacement service, but in the circumstances (covid), I wouldn't. 

Anonperson

unholyangel said:

Anonperson said:

unholyangel said:

As above, they were in breach of contract by not providing access. They cannot make you liable for their breach by extending your minimum membership period. If they cannot provide services, they lose the right to charge for those services, they do not have any right to charge you for different months unless you have expressly (not implied) agreed to the change. 

It may not be within their control but neither is it in yours. 

Assuming you don't have a finance agreement, cancel any reoccurring payment to them and inform them of the above. They could try to take you to court but you'd have a defence that you terminated the agreement in response to their breach. If there is finance you need to be more careful as cancelling payment can result in a default on your credit history. 

amaing, thank you for this. They actually took a month's payment too during a closure and told me they would roll it over so i didn't pay for the first month it opened. I'm assuming I am within my right to ask for a refund?

Assuming you mean a month they didn't provide services then yes. 

I have reservations over the probability of them giving it though, since they apparently lack even a basic understanding of contract law and think they can just unilaterally vary your contract to their benefit and your detriment.

No harm in asking. Or if it's not worth the hassle, you can always wait and see if they try take you to court then inform them you'll be counter claiming for the refund. If your contract doesn't have a clause allowing them to suspend provision for circumstances beyond their control....you could also technically counterclaim for any costs incurred finding a replacement service, but in the circumstances (covid), I wouldn't. 

Thank you.

i had the resonse "Dear Dale, Thank you for getting in touch! We can confirm that we have only received 5 instalments so far in your contract. As we have previously advised you have signed into an agreement which states that we require twelve full instalments to complete the contractual agreement. As with a lot of businesses in March 2020 we had to close our doors in line with government guidelines. To avoid collecting payments during this time, when the facilities were out of use, we made the decision to freeze all membership subscriptions. I am sure you will agree this was the right thing to do. This meant as per our terms and conditions any months frozen were added on to the end of the subscription. Whilst we appreciate you did not formally request to freeze your membership, we would not expect payment for a period where our facilities were not available for your use. If you are wishing to make a payment for the months the gym has been closed please let us know and we will update this on your account. The January 2021 payment was collected from your nominated bank account, as we were unable to stop the payment going through when the current restrictions were announced. An email was sent to all our members explaining this, on the 30th of December, after the government announcement was made. I can confirm that your membership has been automatically frozen and you do not need to do anything. We'll make sure your payment is adjusted when we reopen, to reflect the recent payment you have made. If you require the funds back immediately you can contact your bank and ask for an “indemnity claim”. Rest assured, well be ready to open as soon as permitted by the Government and we will confirm via email once we know a date. If you have any further queries please let us know Kind Regards"

to which i replied: 

"As mentioned. You have breeches contract as you have been unable to give me access. Further to this, there is nowhere in the terms and conditions which stipulate that closure due to unforeseen circumstances results in an extension of the agreement. May I also remind you that a membership agreement has to agreed by both parties. I have never agreed to any form of extension on our agreement. As a reminder, you have been unable to fulfil your agreement of allowing me access to your gym during the agreed term. Irrespective of government guidelines you have failed to uphold your legal obligations set out in the agreement. Therefore breeched the contract on your part. In the eyes of the law I am entitled to cancel my agreement with yourself. 
Further to this, there is nothing in your terms and conditions that state you voluntarily freezing my membership due to government guidelines means that the months will be added to my subscription.
Additionally, after reading my agreement with regards to clause 7. Cancellation and freezing membership Clause 7.2 states “members may request to freeze their membership...any frozen months Will be added to the end of the current membership term” This means that the membership months will added if the member requests the freeze. There is nothing that stipulates the months will be added on if Total Fitness voluntary freeze my membership. As this is the case in this scenario where you voluntary froze membership and I haven’t explicitly asked to have the membership frozen then again the contract breech has been on your side. If I do not get a response I will assume you are in agreement and the cancellation will be upheld"

Am I right in this response or would you have gone about it another way?

Jlc1

Hi, what response did you receive from Total Fitness please? We are having a similar issue.