Villa owner not refunding deposit - despite it being in T&Cs

scaredm

Ok, a brief timeline before I get to the nitty gritty...

September 2019 (pre pandemic): I booked a villa in Orlando for the Summer of 2021.  Paid a deposit.
September 2020 (mid pandemic): the villa owner got in touch to say she was selling her villa, so cancelled our booking and refunded our deposit.
September 2020: I used the refunded deposit to book ANOTHER villa, direct with the owner.  Deposit paid by bank transfer (for goods/services).

Now, this is where it gets interesting.  Before booking the second villa, and being mid-pandemic, I cautiously asked the villa owner what his T&Cs were in regards to refunding deposits if the USA borders don't reopen and flights don't depart.  He agreed (and I have this in writing in more than one email) that if the FCO advised against travel to the USA at the time of my booking and flights weren't departing, as was the case last September, he would refund my deposit.  He put a small paragraph on the booking form that I returned when paying the deposit to confirm this.

Last week, our flights got cancelled for our holiday that was due to start in three weeks time.  There are still flying restrictions and the USA borders remain closed.  Basically ticking every box that he and I agreed on.  I have emailed him politely asking if he could refund my deposit and he hasn't replied.  At what point do I take further action - AND what further action can I take other than TRY to make an insurance claim?  Hardly seems fair that I will have to pay an excess to claim on insurance (if they'll even pay out!) and he keeps a hefty sum of money that he agreed to refund if we found ourselves under the current circumstances.

Sandtree

scaredm said:

He agreed (and I have this in writing in more than one email) that if the FCO advised against travel to the USA at the time of my booking and flights weren't departing

This is a problem for you

There are lots of flights departing for the USA still and so if you have written it as an "and" rather than an "or" clause your conditions for a refund haven't been met. Secondly, the US borders are not closed, you cannot enter them if you have been to certain countries within the last 14 days unless you are a US Citizen or on a list of other exceptions. You could go to a third country for two weeks and then go to the US without border issues there.

You can try to make an insurance claim but your odds arent good given at the time of booking the US border was in the same situation as it is now.

Unless specified otherwise, the agreement will be governed by the law of Florida so you would need to check what consumer protection you have there and any possibility of taking action there but unless its a very significant sum the effort for an international law suit probably isnt worth it.

scaredm

Ok, I hear you - but what he said was "basically the same as things are now" (back in September).  Things are exactly the same now as then.  I'm gobsmacked it might come to this when, at the end of the day, he is morally obliged to refund it.  We agreed!  We can all move goalposts. 

Sandtree

The law has little to do with morals, and even less so in countries like the USA where consumer protection is much weaker.

The most important thing will be the word for word what was written on the booking form... as noted above the careless use of an "and" can make a material difference in the outcome.

Upsidedownandaround

Other than an insurance claim there is probably nothing else you can do.

Even if it was a clear cut breach of contract which as Sandpost points out it is vague at best your only option would be to take the person to court in Florida without knowing whether even if you won any value would even be able to be recovered which is obviously a non starter.

Contact your travel insurer.

I’m gobsmacked that your gobsmacked you didn’t foresee problems in getting your deposit back when you made a private rental booking abroad by bank transfer mid pandemic.

scaredm

The villa owner is British, not American. 

scaredm

…and lives in the UK.

Upsidedownandaround

And what is the governing law of the contract?

Upsidedownandaround

Obviously you appear to be considering court action as an avenue. If your insurance doesn’t cover it then that is something to consider. 

It’s certainly not clear cut in any way whether that would lead to you getting your money back.
This isn’t the same as making a small claim against a UK company. 

From the sounds of it you would be making a claim against a private individual in the UK for breach of contract relating to a property based in a foreign country. You would be relying on a reasonably vague amendment to the initial contract and even if you won they may not pay or have any assets because you won’t be sending bailiffs to Florida to the apartment and they are no longer responding to you.

Obviously it’s up to you whether you take those risk but personally if they don’t reply I’d be dealing with my insurer first. Only losing an excess sounds a good result for the situation you find yourself in.