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Buachaill
Buachaill, Barrister
Category: UK Property Law
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Experience:  Barrister 17 years experience
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I have a small claim against an lettings agent. They made a

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I have a small claim against an lettings agent. They made a serious mistake when referencing the tenants.

In their Defence document sent to me and the court they quoted from the following term in my contract with them.

"....xxxx cannot give any warranty or guarantee regarding the quality, fitness for purpose or otherwise of a Tenant or for services provided by a third party and xxxx cannot accept liability for any failure on their part."

However they omitted the first line of this term which stated: "xxxx Services will be provided using diligence and care. "

As its clear that they didn't provide "diligence and care" is it very bad of them to omit this line from the same point of their defence or just naughty?

Thanks!

Could it also be assumed this is an "unfair term"?
Submitted: 10 months ago.
Category: UK Property Law
Expert:  Buachaill replied 10 months ago.
1. Pleadings are merely designed to allow each side put forward their side of the case. The pleadings are not intended that each side put forward both sides of the case. So it is up to you in court to make reference to the remainder of this clause. However, the botXXXXX XXXXXne is that it is not "naughty" not to refer to the remainder of the clause. This is just one side putting their version of the case forward.
2. Secondly, the term can be considered to be an "unfair term" if it extinguished the obligations under the service contract to a minimum. In this case, the clause is very close to the line, as one relies upon a lettings agency to introduce a tenant and if the lettings agency removes liability for this, then what is the benefit of the service they are providing. As against this, a lettings agent cannot be held liable for all acts of the tenant. So my final view is that this clause is not unfair, but you should certainly argue the point in court if it arises.
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Customer: replied 10 months ago.

Thanks!

 

Two more small questions;

 

Before I signed the contract the agent gave me ther lettings document with the contract.It talked a out their "expert staff" who are "highly trained and receive regular refresher courses in training" and are "trained to the highest standards" etc.

 

1. Prior to contract signature they detailed "specific performance" in this document that their staff would perform. Can I therefore expect that this is the level of service I should have received?

 

This is in light that a staff member made the mistake when conducting the referencing. They claim it was "just an admistrative error".

 

My expectations from the document they presented to me that their staff should have been highly trained and either not made the mistake, or at least remedied it at the time. Is this a correct assumption in the eyes or the law?

 

2. If I wanted to ask questions from the defendant with a statement of truth - am I free to do so in writing? This is prior to trial. Should I expect a response and are they obligated to do so?

Expert:  Buachaill replied 10 months ago.
3. Yes, you are able to expect the level of professionalism warranted by the lettings agency in their terms & conditions. It is not a lawful excuse in law to say something occurred due to "administrative error". This sort of excuse does not avoid liability in law. Secondly, there is no such thing as pre-trial "Questions of truth" in the Small Claims court. These are left to the hearing of the action and the hearing of the evidence. then you will have an opportunity to put your case to each witness from the lettings agency and to cross-examine them as well. Otherwise, the Small Claims court has a very simply procedure and does not allow for pre-trial motions.
Please RATE the answer positively so that I may get paid
Buachaill, Barrister
Category: UK Property Law
Satisfied Customers: 8294
Experience: Barrister 17 years experience
Buachaill and 5 other UK Property Law Specialists are ready to help you
Customer: replied 10 months ago.
Thank-you. Good information.
Customer: replied 10 months ago.


Hello - Could I ask one more small question?

Expert:  Buachaill replied 10 months ago.
Go ahead
Buachaill, Barrister
Category: UK Property Law
Satisfied Customers: 8294
Experience: Barrister 17 years experience
Buachaill and 5 other UK Property Law Specialists are ready to help you
Customer: replied 10 months ago.


Thanks!


 


Same topic. If the agent made a rather large error on the referencing and prior to this occurring they sent me the offer from the tenants with the following statement “SUBJECT TO CONTRACT & SATISFACTORY REFERENCES”.



How do I legally interpret “satisfactory references” – would that mean the tenants have “satisfactory” references or that the agent provides “satisfactory” references (i.e. without error) or both?

Expert:  Buachaill replied 10 months ago.
1. Here it means that the tenants have satisfactory references, not the landlord. The letting contract is with the tenants.
Customer: replied 10 months ago.

So not that the agent provides the references in a satisfactory manner? ie no mistakes.

Expert:  Buachaill replied 10 months ago.
no
Buachaill, Barrister
Category: UK Property Law
Satisfied Customers: 8294
Experience: Barrister 17 years experience
Buachaill and 5 other UK Property Law Specialists are ready to help you
Customer: replied 10 months ago.

Thanks again.

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