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The way that estate agents charge commission on residential lettings could be dramatically overhauled after the Office of Fair Trading (OFT) began a legal case against Foxtons, claiming that the agency's terms and conditions are unfair.
The OFT has asked the High Court to decide whether the way Foxtons continues to charge some landlords commission after a tenancy agreement has ended breached the Unfair Terms and Consumer Contract Regulations 1999, the same regulations that the watchdog is using to challenge high street banks' overdraft charges.
The regulator wants the court to issue an injunction, effectively ordering Foxtons to amend its terms and conditions.
The OFT believes that the practices used by Foxtons are “widespread” in the lettings industry.
If its case is successful, it said that it would pursue other agents that use the same terms.
The OFT has focused on Foxtons because it continues to charge commission on a property rental after a fixed tenancy period has ended, regardless of whether it helped to persuade the tenants to stay or is still actively involved with the property.
That means that if a landlord keeps the same tenants but switches to another estate agent to manage the property — or decides to do without an agent at all — he or she would still pay commission to Foxtons.
The exact amount of commission paid, and for how long it is paid, will depend on the specific contract, but the OFT said that the basic principle is unfair, even if landlords know about and agree to it upfront.
The regulator is also challenging the agent's requirement that a landlord pay commission if he or she sells a property to tenants originally introduced by Foxtons once the tenancy has finished, regardless of whether the agency was involved in negotiating the eventual sale.
Foxtons said it believed that the OFT was “fundamentally misconceived” but accepts that the issues raised are of relevance to the estate agency industry.
It added that it welcomed the opportunity to have a court clarify matters.
A spokesman for the Association of Residential Letting Agents (Arla), which represents more than 2,000 letting agencies, said: “It is up to individual landlords and letting agents to negotiate terms. We insist that the terms are upfront and transparent but it is not our place to tell agents how to run their businesses.”
The spokesman declined to comment on whether the terms and conditions used by Foxtons, which is not an Arla member, were “fair”.
Shilpa Lukka, a senior associate at the property consultancy King Sturge, defended the practice of charging after a fixed tenancy agreement has expired.
She said: “The landlord is benefiting from rent from an applicant that an agent has introduced to them for a duration the tenant stays in a property.”
The Unfair Terms and Consumer Contract Regulations, which were introduced in the UK in 1999 after a European Union directive, are designed to protect consumers when they enter into contracts with businesses.
Under European law, the OFT has the power to challenge what it claims are “unfair” terms and conditions.
That is defined as a term or condition that “causes a significant imbalance in the parties' rights ... to the detriment of consumers”.
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This ongoing commmission regime - a collusive cartel of agents - itself illegal -is unjust and shd be uneforecable.
In Sydney (NSW) & all states agents must be registered, qualified and are sticly regulated .There are no ongoing commissions predicated on term- 2 wks rent- thats it.
UK/barbarbaic
David Morris, London, UK
my estate/lettings agent justified their renewal commission fee by saying that the fee would have to be paid again anyway if the tenants left after one year and we had to advertise for new tenants. They also now charge each tenant on the contract over £100 for admin fees on top of the 10% I pay
Tish, london, uk
Has anyone ever challenged them and won. because they have bullied me around for years with this unfair commission fee. Its about time that they where taught a lesson
Ray, london, england
Yet more rubbish from tis government that treats us all like idiots.while they are trying to bring in more regulations and red tape for letting agents .They do nothing about the banks who commit day light robbery every day .In the us the fbi is arresting guilty bank execs .
nick, Highgate, u.k.
Letting Agents are key to my portfolio. My properties are never empty, most of them will guarantee my rent and legal fees as part of their fee. Just negotiate that on renewal you want a 50% reduction on any fees paid, with agents opening up on every corner they will never turn the business away. I tried to do it myself once and its more hassle than its worth, your property only has to be empty for a few weeks and you've lost more than the agents fee anyway.
Daniel Hanks, London, UK
What about the "admin fees" charged to tenants by letting agents? I still don't understand how agents can charge such a fee to a tenant even though they are supposed to be employed by the landlord. Isn't this just two bites of the cherry? If the OFT are going to sort out a 'significant imbalance,' what about this little money maker?
Ajas, Cumbria, UK
The clause is unfair, thats why after I have let my properties for a year and the tenants want to stay I just tell the agent im moving back in myself and split the savings with the tenant.
James, London,
More government interference. If you don't like the terms on offer, go elsewhere. Agents' business models are built taking account of this revenue. It's what pays for punters to be chaperoned in cars, marketing, websites etc.
A succesful action wil not benefit landlords anyway. Tennats will demand and get a rent reduction on lets that are covered by this. All new lets being agreed will have 5 year ters and relevant break clauses.
Populist nonsense from a government that treats citizens like children.
Cliff, Sevenoaks, Kent
I am a client of Foxtons, as a Tenant, they have done nothing in Renewal and why should I pay 100 pounds for it? they don't even managing the property? they already got 320 pounds for finding a flat, why should the tenant pay them again???
It should be fair!
Roman, London,
Read the small print and negotiate acceptable terms, if they take the Michael then go elsewhere, it's not as if there is a shortage or lack of competition between estate agents out there (although there may be soon, judging by the hysterically nervous way they are pulling their hair out these days).
C Park, Epsom,
This case is most welcome. IMHO Foxtons are a rip-off and sharks. I have never met anyone who is pleased with their service. Have you?
Tom, London,
Foxtons are in the right: if you introduce a buyer to a seller, you get paid. That's how estate agents get paid, and so if, as a letting agent, you introduce a tenant to a property which they fall in love with (and want to buy) you have introduced the buyer to the sell - same as estate agents. They would not be able to sell the property without the work the letting agent has done.
Then factor in that good property management by the letting agent often makes tenants feel 'at home' and makes their property seem easier to run than it actually is as the letting agent is doing all the repairs.
Jake Linklatter, London,
I have always used agents to let some of my properties and happy to pay renewal or yearly fees as Letting Agents mostly get higher rent than what i can get myself, which means they pay themselves. A property i always let myself for around stratford for £1000 per month, an agent found me tenants for £1300 per month. I had disputed this once and insisted on not paying, then gave notice to a perfectly good tenant to leave, big mistake, and never again. The house was empty for about 4 months, with loads of advertising by myself, loots, shop windows, internet websites e.t.c and nothing. An agent then called me one day (thru my ads) that they could find a suitable tenant for me at this price, and they did for more than i was advertising. i would rather pay agents for my tenant extending the contract, no empty periods, or having to go through finding another tenant.
Simi, London, UK.
Perhaps when the OFT has finished their review of the estate agents, they could go after the recruiters. They take a slice of your contract for the duration of the contract and if it's renewed, they continue to get paid.
The contract renewal has nothing to do with them so why should they receive a commission?
Rob, London,
It's about time this practice was stamped out. Agents also charge a high commission when a property is sold to a tenant they have initially found even when they have not actively managed the property for years. It's a complete rip off.
sk, East Sussex,
Agents have always over charged for letting. It has always been easy money for the industry.
I have let for the decades and whenever I have used agents have regretted it.
My advice - do it yourself.
It's not rocket science.
PG
peter griffiths, ammanford, uk