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LettingFocus

Unbiased buy to let, property investment and letting coaching, mentoring, advice and seminars for landlords from top selling property author and media commentator.

Foxtons case & Letting Renewal Fees (Continued) by Letting Focus

Many people commented on last weeks’ post about Foxtons and repeat letting fees and asked for further advice about what to do now. But before I do that, let’s first be clear about what the case was all about.

Repeat Letting Fees – a Recap
The case was brought by the OFT against Foxtons and is about unfair terms in consumer contracts.
The High Court decided that certain terms in the Foxtons letting contracts with landlords were unfair in that renewal fees charged to landlords (when tenants stayed on) should have been highlighted more prominently, not only in the contract but in other sales literature too.
The OFT argued that these fees were found to be hidden and not properly bought to the landlords’ attention.
The court agreed that in the case of Foxtons, they were indeed buried and therefore were a “trap” for consumers. It was this “hiding of the renewal fee” whch was unfair.

Renewal Fees Will Continue
But landlords must understand that renewal or repeat letting fees have NOT BEEN RULED to be unfair in themselves.
What was wrong was the way they were hidden or rather, not highlighted properly.
Unfortunately, charging percentage based renewal fees where a property has been let to a tenant for a landlord on a “Let Only” basis will probably continue.
Both we at Letting Focus and the National Landlords Association (NLA) still say that repeat renewal commissions are “money for nothing” and should be stopped.
For my let properties, I have only ever paid an agent a one off fee for finding a tenant. I simply won’t entertain an agent who wants renewal fees.
When a tenancy comes to the end of its initial period - and if I like the tenant, I simply ask the tenant if he would like to stay on.
There is no actual work involved for the agent or for me apart from asking the tenants to send an email confirming they would like to stay on. That does not justify a fee of more than £20 – not in my view anyway.

New Sneaky Practices Likely to Emerge
Tessa Shepperson writing in LandlordLaw says she understands from her correspondents that some rogue agents are now trying to get tenants to close existing tenancy agreements at the end of a fixed term and telling them and their landlords that the tenant must sign a a new agreement.
That way the agent gets to charge a fee again! So watch out for this as this is nonsense.
A much better option would be to extend the tenancy in the way I have outlined above. That way, the tenancy continues from month to month on a “periodic basis” until the parties want to end it, at which point they have to give due notice.

What Should Landlords Do About Past Fees?
The ruling says that if both parties - the OFT and Foxtons - cannot agree on the consequences of the ruling, then another hearing will be needed for them to be determined.
It is also still possible for the ruling to be appealed. Let’s hope not (As I write this there is no sign of an appeal yet.)
If you have paid repeat renewal fees in the past, whether you can claim back may depend on whether you are a big or small landlord.
This is because the ruling made a rather weird distinction between “consumer landlords” (smaller landlords with a small number of properties for whom being a landlord is not their main source of income) and “business landlords” (larger or professional landlords with a greater number of properties some of whom operate as a limited company).
It is possible that “business landlords” won’t be considered as “consumers” and may not succeed in claiming back renewal fees.
Also, each claim would have to be judged in court on a case-by-case basis. And whether you win or not would depend on the nature of the contract and whether you were aware of the full implications of what you were signing.
According to the NLA, “The terms of relief following the judgment have not yet been resolved and it may be prudent to await this.”

If You Want to Claim Now….
The NLA advise that if you want to start claiming you could send a Letter of Claim to your letting agent.
This letter should give the letting agent 14 days to return the fees and it should be the first step on the claims process. If you don’t do this a judge may not be especially sympathetic in court, especially when it comes to apportioning costs of any court action. Ouch!
Of course, if the letting agent does not return the fees (which can go back for a maximum of six years), you could issue proceedings against them at your local court or on line at http://www.moneyclaim.gov.uk/
If there is an appeal by Foxtons the court could suspend any claim of course.
In summary, we would suggest you get legal advice on this and keep reading this blog and the rest of the press to see which way things are moving.

This blog post has attracted a lot of attention and questions, so thanks for that.
Judging by them, perhaps I just need to spell it out more clearly:
If a letting agent made it clear in a contract with a landlord (and did not hide it away in some hidden sub clause on another document somewhere) that, you the landlord would be charged repeat fees forever, and you signed up to that, then you are kind of stuck.
Put it down to experience - AND IN FUTURE, MAKE SURE YOU READ CONTRACTS BEFORE YOU SIGN!
If you don't like a clause request it be struck out. If the agent won't budge, go and find another lettting agent.
Click on the appropriate categories at the end of this post, if you want toread more on repeat or renewal fees that letting agents charge.

ABOUT LETTINGFOCUS.COM and DAVID LAWRENSON
I’m David Lawrenson of LettingFocus.com - the landlord experts. Read Property Articles.
I’m the author of “Successful Property Letting” which for the last 3 years has been the UK’s top selling property book - buy Property Investment Book. The new edition is for accidental and experienced landlords and is fully up to date with all the recent changes to tenancy deposit schemes, landlord registration and capital gains taxes.
I’m a property expert and property speaker - and I run the well known property blog that you are reading now.
I contribute to newspapers and a host of property websites, write a number of columns in the press and I provide general advice on property letting to anyone looking to buy property for themselves or to let.
What’s unique about lettingfocus.com is that we offer independent unbiased advice on letting property because unlike most people in the buy to let and property “advice” business we are not linked to a property company, developer, agent or bridging loan financier.
For landlords' insurance products such as rent guarantee cover and property insurance click on Ukinsurancenet. Don't forget to quote our reference code, LFOC, to get the best rates from them too. And find out about OTHER great deals we have arranged at our Property Affiliate page.
More will be added over the next month, once we have checked them out.
Copyright: David Lawrenson 2009. This blog is updated roughly once a week.
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Foxtons letting agent renewal fee case - Latest from Lawrenson of LettingFocus

Do you remember the seemingly never ending case of unfair letting agency repeat renewal fees imposed on landlords by letting agents?
Well, landlord law guru Tessa Shepperon recently sent me an update on the ongoing case.
The background to the case that the Office of Fair Trading (OFT) has against Foxtons Ltd (the letting agents) is about their refusal to agree that certain terms in their letting agency contracts with landlords are unfair under the Unfair Terms in Consumer Contracts Regulations 1999.
One of these terms relates to repeat fees imposed on landlords where the initial fixed term in the original tenancy has come to an end.
Many a landlord (who never bothered to read the contract they signed with their letting agent properly) has suddenly woken up to the fact that their letting agent is trying to hit them for a further set of fees long after the initial job of finding the tenant has been completed.
One side issue in the case was whether any injunction brought against Foxtons could affect current letting agency contracts as well as future ones.
Initially, the first Judge had accepted Foxtons’ argument that any injunction about unfair terms could only apply to future contracts. Bad news for landlords!
But, we now had some good news because the Court of Appeal (bless their cotton socks) has now overturned this initial ruling, thus confirming the OFT's view that it can take enforcement action under the legislation to protect consumers in relation to existing contracts too.
Indeed, the Court of Appeal stated that the unfair terms legislation’s aim was to protect ALL consumers, never mind when the contract was signed.
LETTING AGENCY RENEWAL FEES AND LANDLORDS
What this means is that if you are a landlord with a letting agency contract with Foxtons, they should not now levy any charges under the disputed clauses on you until after the main action has been heard.
And, as you asked, the main action - i.e. on whether the terms in question are actually unfair or not under the regs – should be heard by the High Court in the week commencing 27 April.
You should be following this case if any letting agency has tried to impose renewal charges on you for finding a tenant long after the tenant’s initial term has ended.
Hundreds of thousands of landlords could be affected and letting agencies could face huge claims and loss of fuure cash flows if the landlords win this one.
We will keep you posted.
Update 10/7/9 - Foxtons has lost the case. Please go to: http://www.lettingfocus.com/2009/07/foxtons-loses-unfair-letting-renewal.html to read more.
ABOUT LETTINGFOCUS.COM and DAVID LAWRENSON
I’m David Lawrenson of LettingFocus.com - the property letting experts. Read Property Letting Articles.
I’m the author of “Successful Property Letting” which for the last 3 years has been the UK’s top selling property book - buy Landlords Book.
The new edition is for accidental and experienced landlords and is fully up to date with all the recent changes to tenancy deposit schemes, HMOs, licensing, capital gains taxes and it has new sections on Letting Agents and Company Lets
I’m an expert property writer and property speaker - and I run the well known landlords blog that you are reading now.
I contribute to newspapers and a host of property websites, write a number of columns in the press and I provide general advice on property letting and consulting to anyone looking to buy property for themselves or to let out. I can help private individuals with any aspect of buying property or buy to let.
What’s unique about lettingfocus.com is that we are independent property investment advisors because unlike most people in the buy to let and property “advice” business we are not linked to a property company, developer, agent or bridging loan financier and do not receive commissions from these sources.
We simply give one to one unbiased advice and are often asked to evaluate other property investments.
Find out about some great deals we have arranged at our Landlords Links page.
Copyright: David Lawrenson 2009. This blog is updated roughly once a week.
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Are Letting Agency Renewal Fees Fair asks David Lawrenson of Letting Focus. We look at the Foxtons case.

A reader of this blog recently contacted me with a query which I’m seeing all too often right now. She had rented out a flat for the last four years to a tenant who was found by a big London Letting Agency. The landlord managed the tenancy herself.
The landlady paid the agent 10% for the first year of the tenancy and unfortunately had signed a contract to pay 8% for each year of renewal thereafter. (As you will know from other blogs posts my advice is to pay a generous up front fee and strike out any clauses requiring you to pay renewal fees where the tenancy is simply extended to become a “monthly periodic” tenancy because in these cases the agent does no real work to extend the tenancy!)
In this particular case, the tenant is now buying the flat – a result of a private agreement between the landlady and the tenant.
However, when the landlady informed the agent of this, they pointed out a clause in the tenancy contract which says, “In the event that a tenant or a third party connected with the tenant introduced by us, subsequently purchases the property, we will be entitled to a fee of 1.5% of the purchase price plus VAT.”
The landlady wanted to know if there was any way she could get out of paying this fee, or at least some of it.
She was shocked that it’s so much when they have done nothing apart from securing the tenant four years ago.

LITIGATION
The answer lies in litigation which is ongoing at present.
In the case of Foxtons Ltd v Pelkey Bicknell this year, the Court of Appeal said that it is not sufficient for an agent to introduce a purchaser to earn a sales commission. The agent has to be the effective cause of the sale.
The Office of Fair Trading (OFT) is also challenging, in the High Court, the agency, Foxtons' standard terms and conditions for letting properties.
The OFT believes that the Unfair Terms in Consumer Contract Regulations 1999 mean that some charges made by the agent are actually unlawful.
The case mainly involves the right for the agent to claim a renewal fee from the landlord if a tenant renews at end of the original letting period. But the challenge also covers commissions payable where a tenant buys the property.
This case seems to have been pending for ages and the outcome of the trial and any appeals may not be known for some time yet.
Some solicitors in the north west of England have issued county court claims for landlords for repayment of fees paid to agents in similar cases.
It may also be possible to issue proceedings in court for repayment of cash previously paid unlawfully on these grounds and claim interest from the agent too.
However, it may be better to wait until the result of the OFT case is known and don’t forget that you have up to six years to issue any claim in court.
According to my friend and legal expert Tessa Shepperson at the website LandlordLaw, another option could be to draw the letting agency’s attention to the Foxtons case and offer to pay any monies in dispute into a separate interest paying account to show good faith. Then, if Foxtons wins the test case then the money would then be paid out to them. If they lose, you get to keep it.
Please note we are not lawyers and this is a rough guide of the situation only and should not be relied on as definitive advice. We advise you to always take legal advice from a solicitor experienced in these matters.
Click here to read another short article by me about letting agency fees

ABOUT LETTINGFOCUS.COM and DAVID LAWRENSON
I’m David Lawrenson of LettingFocus.com - the landlord experts.
I’m the author of “Successful Property Letting” which for the last 3 years has been the UK’s top selling property title - Buy Successful Property Letting - How to Make Money in Buy to Let.
The new edition is fully up to date with all the recent changes to tenancy deposit schemes, HMOs, licensing, capital gains taxes and it has new sections on sale and rent back.
I’m an expert freelance property writer, property speaker and a well known buy to let blogger
I contribute to newspapers and a host of property websites, write a number of columns in the press and I provide general property letting advice for anyone looking to buy property for themselves or to let out.
In my work as a consultant I help private individuals with any aspect of buying property or buy to let. What’s unique about lettingfocus.com is that we are independent property mentors because unlike most people in the buy to let and property “advice” business we are not linked to a property company, developer, agent or bridging loan financier and do not receive commissions from any of these sources.
We simply give one to one unbiased advice and are often asked to evaluate other property investments.
In my corporate consulting role, I also advise banks, building societies, housing associations and web portals with their buy to let and property products and services.
You can read more of my blog & find details of my networking, advice and property training programme at my website.Copyright: David Lawrenson 2008. This blog is updated once a week. WANT TO BE KEPT UPDATED WITH OUR LATEST BLOGS?
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Finding Tenants and Selling Property? You Need the Internet and the Big Portals

The internet has become ever more important as a resource for landlords looking for tenants, especially given the fact that the big property portals exclude landlords advertising directly (i.e. not through an agent)
So, if you go down the high street to find a letting agent to market your property, one of the first things you must ask today is which portal are they linked to.
Indeed, it is reported in today’s news that 90% of house sales are advertised on the RightMove site (they also appear on others too, but it looks like RightMove is now the biggest) and it is thought that around 70 per cent of tenants now restrict their search entirely to the internet.
Christian Harper of Oliver Finn, an estate agency in Chiswick says “Many agents talk about marketing strategies (for letting property) but for many it just comes down to putting a property up on the big portals.”

The Biggest Portals and How You Can Find a Tenant Using One for Not Much Money!
The biggest portals are FindaProperty, Prime Location and Right Move.
In fact if you find a local letting agent that is not linked into at least one of these, you should seriously question why.
Others that have a significant presence are PropertyFinder and Fish4Homes.
PrimeLocation and RightMove have now become hugely successful businesses as their stock market ratings amply testify and any agent not on them is bound to struggle. But they are not cheap - typically they charge around £300 per month per branch per agent.
The bad news is that landlords cannot access most portals because they only accept ads from professional agents.
Some portals say this is to do with the restrictions imposed by the Property Misdescriptions Act which places an onus on the agent to have actually seen the property they are advertising to sell.

Getting Your Ad Up There
However, this is all a bit misleading because the act doesn’t apply to property lettings at all (only property sales.)
The real truth is it’s because most portals have been built up by estate and letting agents (and in some cases owned by them) and they do not want to damage their own pitch.
The really good news is that there are lots of "on line letting agents" where landlords advertising direct can place their properties.
And these all have links through to the big portals.
Using them is simple.
Take a few photos of the property you want to let and write a description and then load it up to one of these on line letting agents and they will upload it straight onto all the big portals for a fee of typically less than £60 - and it can stay on there as long as you like.
Indeed we have links and special offers for two of them at our Landlords Resources Page.
Click Here: Services and Products for Landlords

ABOUT LETTINGFOCUS.COM and DAVID LAWRENSON
We are LettingFocus.com - the landlords’ expert and I’m David Lawrenson, the author of “Successful Property Letting” - the UK’s top selling property and buy to let book for the last 3 years.
I have been a landlord and property investor myself for over 25 years.
At LettingFocus we offer independent unbiased
advice for landlords and property investors on a one to one mentoring and coaching basis as well as occasional group seminars.
Unlike many in the still largely unregulated buy to let and property “advice” business I am not linked to a property company, developer, estate agency or bridging loan provider.
As such I am able to give unbiased independent advice on where to buy (which areas), what type of property to buy, when to buy and how to buy property at a low price. I can also explain how to reduce the risk of getting a bad tenant.
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Letting Agents - Should I Use a Letting Agent to Let my Property? Should I Pay Renewal Fees Every Time The Tenancy Is Renewed?

If you use a letting agent, their fees are not set in stone so look carefully at the rates they quote in their contract.
Be prepared to negotiate (or remove altogether) any clauses in their contract covering payments of fees that you feel are unjustified or excessive.
For example, if a fixed term assured tenancy becomes a rolling or “monthly periodic tenancy” after 6 months then the workload for the agent should be minimal.
In these circumstances, all that might happen is an exchange of emails between your tenant and your agent to say they wish to stay on - the tenancy becoming a monthly rolling or periodic one. This type of situation does not justify a hefty renewal fee.
So make sure you don’t sign a contract which gives the agent the right to charge a fee on renewal of each tenancy. If you do, you’ll be paying a fee for as long as the tenants stay.
Neither is a big fee justified for producing a tenancy agreement. These are available from the internet or from landlords associations or in my book “Successful Property Letting – How to Make Money in Buy to Let” at little or no cost.

Don't Be Mean
But don’t be mean.
Good letting agents are worth their fees and work hard and do unsocial hours on your behalf - so be prepared to pay for the work that the agency does when they do it. In many cases this will mean 7 to 10% for finding a tenant and at between 3 and 5% for managing them.
But just make sure you don’t sign up to pay renewal fees where little or no work is done by the agent.

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ABOUT US

LettingFocus.com are the experts on landlord issues and I’m David Lawrenson, the author of “Successful Property Letting” – which has been the UK’s top selling property and buy to let book for the last 3 years.

We help landlords and property investors make money in property by coaching them in ways that work, that are ethical and which involve minimal risk.
I have been a landlord and property investor myself for over 25 years.

At LettingFocus we offer independent unbiased buy to let advice for property buyers and landlords both on a one to one mentoring and coaching basis as well as through occasional group seminars.

Property syndicates and property advice in the UK is still largely unregulated and what counts as “advice” is too often more about making the promoter money than giving useful information to the investor.

With no link to property firms, developers or bridging loan providers, at LettingFocus, we aim to give unbiased independent advice on where and what type of property to buy for investment, when to buy and how to buy property at a low price.

We also show you how to manage tenants properly and in ways that take up as little of your time as possible.

See this related article from our Articles pages: http://www.lettingfocus.com/pages/myarticles_ChoosingaLettingAgency.html

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Letting Agents Check Those Letting Agencies Contracts Carefully

Lots of estate agents are now busy telling people they will do a HIP for you for free. However, as Elaine Moore points out in last Saturday’s ever informative FT, there is a big catch.
She says, “If you are selling a house where the estate agent provides you with a Hip, it belongs to them - not to you.”
So, if you later to to sell it with another agent, or take it off the market completely you’ll probably be hit with a pulling out fee.
As I have said before, you need to carefully check all clauses in any contract you sign with agents – be they letting agents or estate agents.
If I had a pound for every landlord who suddenly finds to his surprise that 6 months down the line his letting agent wants a fee because the tenant has renewed, I would be a richer man. (If the original tenancy contract is just renewed, there should be little if anything for the agent to do – and certainly nothing that justifies a 5% or higher fee.)
Back to main site; www.lettingfocus.com
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At LettingFocus we give independent advice to landlords and property investors.
We also provide consultancy to banks, property websites and public sector bodies, helping them with their buy to let and landlord facing products.

THE HOME PAGE OF THIS BLOG click here: Blog
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NEXT SEMINAR AND NETWORKING EVENT for Landlords and Property Investors:
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Letting Agency Fees - Negotiate on Them

If you use a letting agent, their fees are not set in stone so look carefully at their rates.
My advice is to look at the contract they present and be prepared to negotiate (or remove altogether) any clauses fees that you might feel are unjustified or excessive.
For example, if a fixed term assured tenancy becomes a periodic tenancy after 6 months then the workload for the agent should be minimal at the 6 month point.
In these circumstances, all that might happen is an exchange of emails between your tenant and your agent to say they wish to stay on. This type of situation would hardly justify a hefty renewal fee.
Neither is a big fee justified for producing a tenancy agreement. These are available from the internet or from landlords associations at little or no cost.
But don’t be mean.
Good letting agents are well worth their fees and will work hard and do unsocial hours on your behalf so be prepared to pay for the work that the agency does when they do it.
In many cases this will mean at least 10% for finding a tenant and at between 3 and 5% for managing them.

MORE ABOUT LETTINGFOCUS AND WHAT WE DO

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I’m David Lawrenson, a landlord and property investor myself for over 25 years and author of “Successful Property Letting” – the UK’s top selling commercially published property book for the last 3 years.

Services to Businesses and the Public Sector

Primarily I am a consultant to banks, local authorities, social housing providers and other organisations – helping them with their landlord facing or buy to let product strategies and services.

For example, I help banks improve their buy to let mortgage lending practices and I help housing association / local authorities find private landlords (private rented access schemes, local letting agency models etc.)
I also write for property websites and am regularly quoted by the broadcast media.

Services for Private Landlords

We also find some spare time to help landlords and property investors by coaching them in how to make money in the private rented sector using ways that work, which are ethical, fair to tenants and which involve minimal risk to the investor.
We pride ourselves on giving independent unbiased buy to let advice on either a one-to-one mentoring / coaching basis or through our occasional group seminars. With no links to property firms, developers or bridging loan providers we can advise on where and what type of property to buy for investment and when to buy it. We also show you how to manage tenants properly.

AT OUR WEBSITE LETTINGFOCUS.COM:

THE HOME PAGE OF THIS BLOG click here: Blog

THE HOME PAGE OF OUR MAIN SITE click here: LettingFocus Home Page


For general info on our CONSULTING click here: Consultancy and Seminars


ONE TO ONE PRIVATE CONSULTANCY click here: Property Mentoring


NEXT SEMINAR AND NETWORKING EVENT for Landlords and Property Investors:
Next Property Investment Seminar and Networking Event

We have OFFERS on a range of services and products for landlords too; click here including landlords insurance, tenant referencing, tenancy agreements and more: Services and Products for Landlords

TO READ CLIENT TESTIMONIALS – both commercial and private click here: Testimonials

BUY “SUCCESSFUL PROPERTY LETTING” click here: Buy the Book at Amazon plus anything else you fancy at Amazon.co.uk

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simply send an email to [email protected] - Please note we WILL NOT send spam or sell our mailing list to advertisers!

IF YOU HAVE A SITE WHY NOT LINK TO THIS BLOG OR TO OUR WEBSITE?

IF YOU SELL SERVICES TO LANDLORDS, YOU COULD BE A PARTNER ON OUR AFFILIATE PROGRAMME.

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Copyright of Blog:
David Lawrenson 2009. This blog is updated roughly once a week usually on a Monday or Tuesday.

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