Tenant breaking AST

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    #16
    Originally posted by Ruth Less View Post
    I meant what if the charge the agent made and wrote in the contract was inflated in the first place?

    .
    Well the argument to counter that point would be, in essence, "tough luck".

    I suppose there would come a point where, if the fee provided for by the contract was vastly different to the norm, then the tenant or the court would ask questions about whether there was some sort of collusion between the LL and the LA, However, we are getting into flights of fancy by considering that argument, which is not really a argument about the principles of damages for breach of contract, but more about the particular facts of a case.
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      #17
      Originally posted by agent46 View Post
      Well the argument to counter that point would be, in essence, "tough luck".

      I suppose there would come a point where, if the fee provided for by the contract was vastly different to the norm, then the tenant or the court would ask questions about whether there was some sort of collusion between the LL and the LA, However, we are getting into flights of fancy by considering that argument, which is not really a argument about the principles of damages for breach of contract, but more about the particular facts of a case.
      What I am saying is that 10% of 18 months rent for a let only service is extortionate. OK so there is the refund of the last six months if the landlord remains with the agent but frankly after their showing who would want to remain with them? I can't believe that is the norm!

      So it's the norm to charge a tenant find/let only service as a percentage of the rent for the whole contract including renewals then? In the OP's case that's 18 months!

      I thought a fee based on percentage of mothly rent for the whole contract was mainly for managed properties where the agent has to do work month on month so a monthly fee makes sense. Round here the typical agent's fee is 12.5% of monthly rent for fully managed. I do not think for a second that the management side, quarterly inspections, handling repairs, collecting and chasing rent, etc. is a mere 2.5% of that while the let only part is 10% of the whole!

      It needn't be collusion between the LL and LA, it could be the LL wasn't that picky what he signed up to or he could simply not have bothered to negioate.

      How can that fees structure be justified for a tenant find only which the OP's was?

      Why do landlords agree to such terms? Why isn't a tenant find a fixed fee regardless of eventual contract length? Do landlords not think such a charge for tenant find only is extortionate especially if a contract is renewed for several years?

      Even if it is the norm I still don't see why the tenant should be liable for a fee structure that isn't related to work done and that the tenant knew nothing of. It was the landlord's choice to sign such terms after all. As it's a percentage of rent the agent could easily write that detail into the AST that the tenant gets to close off any arguments. In fact it seems silly to leave it out giving the tenant an argument that they were not aware that the charge would be that big.
      ~~~~~

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        #18
        Originally posted by Ruth Less View Post
        What I am saying is that 10% of 18 months rent for a let only service is extortionate. OK so there is the refund of the last six months if the landlord remains with the agent but frankly after their showing who would want to remain with them? I can't believe that is the norm!

        So it's the norm to charge a tenant find/let only service as a percentage of the rent for the whole contract including renewals then? In the OP's case that's 18 months!

        I thought a fee based on percentage of mothly rent for the whole contract was mainly for managed properties where the agent has to do work month on month so a monthly fee makes sense. Round here the typical agent's fee is 12.5% of monthly rent for fully managed. I do not think for a second that the management side, quarterly inspections, handling repairs, collecting and chasing rent, etc. is a mere 2.5% of that while the let only part is 10% of the whole!

        It needn't be collusion between the LL and LA, it could be the LL wasn't that picky what he signed up to or he could simply not have bothered to negioate.

        How can that fees structure be justified for a tenant find only which the OP's was?

        Why do landlords agree to such terms? Why isn't a tenant find a fixed fee regardless of eventual contract length? Do landlords not think such a charge for tenant find only is extortionate especially if a contract is renewed for several years?

        Even if it is the norm I still don't see why the tenant should be liable for a fee structure that isn't related to work done and that the tenant knew nothing of. It was the landlord's choice to sign such terms after all. As it's a percentage of rent the agent could easily write that detail into the AST that the tenant gets to close off any arguments. In fact it seems silly to leave it out giving the tenant an argument that they were not aware that the charge would be that big.

        You may think the fee isn't justified, but it is well within the norm. Unless it is well outside the range of reasonability, the Court will not concern itself with that factor, nor will it take into consideration the fact that the LL could have obtained better terms elsewhere. There is a contract for fees, it looks ok to me and issues you raise amounting to "couldawouldashoulda", "I think/thought" and "round here" are wholly irrelevant to the issue.

        Fees payable by LL to LA are foreseeable (and in fact are actually made express terms of the AST), and although the exact % is not express, there would be an implied term that those fees will be reasonable (by reference to customary trade practice). IME, the fees charged by the LL, whilst on the high side, are within the range of reasonability by reference to trade practice and as I've already said, once damage of a certain type is foreseeable, the law will allow recovery of the full extent of the damage. If the tenant is lucky, the court may knock a couple of % off at most, but (if it becomes an issue) as he signed express terms with the LA, OP will not benefit from the same indugence.

        I think I've answered the same question in several different ways now.

        As for your other question - I don't know why a LL would agree to pay a fee of 10% for the contract term etc - my crystal ball is a bit murky today. Not that it is relevant to the outcome of this case, but perhaps OP or some other LLs will answer for himself/themselves.
        Health Warning


        I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

        All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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          #19
          Originally posted by Ruth Less View Post
          It needn't be collusion between the LL and LA, it could be the LL wasn't that picky what he signed up to or he could simply not have bothered to negioate.

          How can that fees structure be justified for a tenant find only which the OP's was?

          Why do landlords agree to such terms? Why isn't a tenant find a fixed fee regardless of eventual contract length? Do landlords not think such a charge for tenant find only is extortionate especially if a contract is renewed for several years?
          The standard Let only fee in London Docklands is 9-11% + VAT. I agree that this is a rip off but unfortunately I did not have time to advertise, answer call, arrange viewings, sort contracts, perform inventories, check-in, arrange transfer of utilities etc. etc. etc.

          I agree that a fixed fee would make more sense. If anyone can recommend a good agent in London Docklands then I will take my business to them.

          Comment


            #20
            Originally posted by agent46 View Post
            You may think the fee isn't justified, but it is well within the norm. Unless it is well outside the range of reasonability, the Court will not concern itself with that factor, nor will it take into consideration the fact that the LL could have obtained better terms elsewhere. There is a contract for fees, it looks ok to me and issues you raise amounting to "couldawouldashoulda", "I think/thought" and "round here" are wholly irrelevant to the issue.

            Fees payable by LL to LA are foreseeable (and in fact are actually made express terms of the AST), and although the exact % is not express, there would be an implied term that those fees will be reasonable (by reference to customary trade practice). IME, the fees charged by the LL, whilst on the high side, are within the range of reasonability by reference to trade practice and as I've already said, once damage of a certain type is foreseeable, the law will allow recovery of the full extent of the damage. If the tenant is lucky, the court may knock a couple of % off at most, but (if it becomes an issue) as he signed express terms with the LA, OP will not benefit from the same indugence..
            Sorry agent46, but why would anyone expect a tenant to know the terms of business agreed by agent and landlord? What may be the norm to those two parties isn't known by tenants. Do you explain the LA/LL fee structure to tenants as a rule? With such an open AST like the OP's the tenant would not have a clue what they'd signed up to in agent's fees. Put the detail in the AST and I would see your point. In fact as the detail is known it could so easily go into the AST...
            ~~~~~

            Comment


              #21
              Originally posted by Ruth Less View Post
              Sorry agent46, but why would anyone expect a tenant to know the terms of business agreed by agent and landlord? What may be the norm to those two parties isn't known by tenants. Do you explain the LA/LL fee structure to tenants as a rule? With such an open AST like the OP's the tenant would not have a clue what they'd signed up to in agent's fees. Put the detail in the AST and I would see your point. In fact as the detail is known it could so easily go into the AST...

              Sorry Ruth Less, as I've explained 4 or 5 times now - the actual fees do not have to be known to the tenant, it is sufficient for the LL's liability to pay fees to the LA to be reasonably foreseeable. That is not just my opinion, it is the position at common law, so arguing with me, or repeatedly telling me what terms you think should or could have gone into the AST is not going to change either my mind or the law.

              If you think that the doctrine of remoteness of damage for breach of contract at common law is unfair then you can change the law by:

              (a) Writing to your MP.

              (b) Becoming an MP and then getting into a position of such influence that you can place a Bill before the House. This usually involves paying your dues in local politics beforehand and then climbing the greasy pole of Westminster politics for a number of years.

              (c) Becoming an appellate judge. This latter course would involve you taking a law degree (or a conversion course, if you have a non-law degree), then taking the BVC (the Bar exams), then undergoing a 1 year period of pupillage, then practising at the Bar for a fair while before applying to the Lord Chancellor for a position on the Bench. Then you would have to work your way up to become a judge in the Court of Appeal, or better still, a Lord of Appeal in Ordinary, which will qualify you to sit on the Judicial Committee of the House of Lords. You would, of course, then have to wait until a case came along where the point was in issue, and then try to convince the judges sitting with you to agree with your reasoning.


              HTH.
              Health Warning


              I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

              All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

              Comment


                #22
                Oh, Ruth, now see what you've done. You don't want to make him angry...
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

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                  #23
                  Originally posted by jeffrey View Post
                  Oh, Ruth, now see what you've done. You don't want to make him angry...
                  And you won't like me when I'm angry.

                  .......especially when I have homework to do. Speaking of which, have you answered my Ground 8 argument in the other thread yet?
                  Health Warning


                  I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                  All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                  Comment


                    #24
                    Originally posted by agent46 View Post
                    ...change the law by:

                    (a) Writing to your MP.

                    (b) Becoming an MP and then getting into a position of such influence that you can place a Bill before the House. This usually involves paying your dues in local politics beforehand and then climbing the greasy pole of Westminster politics for a number of years.

                    (c) Becoming an appellate judge. This latter course would involve you taking a law degree (or a conversion course, if you have a non-law degree), then taking the BVC (the Bar exams), then undergoing a 1 year period of pupillage, then practising at the Bar for a fair while before applying to the Lord Chancellor for a position on the Bench. Then you would have to work your way up to become a judge in the Court of Appeal, or better still, a Lord of Appeal in Ordinary, which will qualify you to sit on the Judicial Committee of the House of Lords. You would, of course, then have to wait until a case came along where the point was in issue, and then try to convince the judges sitting with you to agree with your reasoning.


                    HTH.
                    Or just pay New Labour £££ and become a Life Peer.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #25
                      Originally posted by agent46 View Post
                      And you won't like me when I'm angry. mad

                      .......especially when I have homework to do.


                      Hides behind settee. You aren't still at school are you Actually I was going to ask what your user name means, are you a letting agent and do you know all the legal stuff in a professional capacity?

                      One more thing, would the same apply if the T had gone early during a renewal? e.g. a let only renewal for 12 months and the T leaves after month 1. Are they due to pay the agent's fees for the whole 12 months or do they just owe the cost of finding a replacement T? Only sometimes the LL is able to get out of having to pay all the agent's fees on a let only renewal even if contracted to. And there is talk such fees may be unfair.
                      ~~~~~

                      Comment


                        #26
                        Originally posted by Ruth Less View Post
                        Actually I was going to ask what your user name means, are you a letting agent and do you know all the legal stuff in a professional capacity?
                        I'm a secret agent, and if I gave you any more information, then I'm afraid I would have to kill you


                        Re: renewal Qs - I think the same would apply. I don't believe renewal fees are unfair per se, but that's a whole different argument. It may be that the way they are drafted in Foxtons' T&Cs makes them unfair, but I haven't seen those T&Cs, so I can't comment.
                        Health Warning


                        I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                        All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                        Comment


                          #27
                          Thanks for all the advice.

                          I now awaiting a possession hearing at local CC for my property.

                          As for the letting agent, I have written a letter of complaint to the directors with a view to going to the Ombudsman if I am not satisfied with their response.

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