Time - Contract for Supply or Service

TIME NEEDS TO BE OF THE ESSENCE

IN A CONTRACT FOR SUPPLY OR SERVICE

You know the classic scenario....you decide to get the builders in, and at the beginning of your relationship as you the “consumer” and the builder as the “service provider” everything is lovely. However as the works commence and continue, usually, and more often than not the relationship becomes strained or stressful due to things like delays in completing the works, increased costs or damage etc. So is it truly the case that the consumer just has to accept the situation or can you use the law to negotiate better timelines and costs from the service provider or even obtain compensation?   The answer is no - you simply don’t have to accept the situation.  Arm yourself with Supply of Goods and Services Act 1982 and try to negotiate and reason with your service provider.

So what can you do if the work is taking a long time:

 If they are taking longer than it was agreed for them to carry out the work then this falls under Section 14 of the Supply of Goods and Services Act – ‘Time and Performance’.  The Act states that the supplier will carry out the work within a reasonable time.  However, this is only the case  if a timeframe has not been agreed or forms part of your contract with your supplier.  This term is called making “time of the essence”.  If you have agreed a date for the works to be completed and it is not met then you are well within your rights to terminate the contract if that deadline is broken if you so wish. However,  If you have not agreed a deadline and the works elapse past what is considered to be a reasonable time,  you are not entitled to terminate the contract but you are now in a position to agree on a new date i.e. making time of the essence for the works to be completed by the supplier.  If this new date  is not met then and only then can you terminate the contract.

Consumers do agree a date with your supplier or service provider as it places you in a better position.

This published article may contain information of general interest about current legal issues, but does not give legal advice

Sub Standard Work in the Supply of Goods & Services

Sub Standard Work in the Supply of Goods & Services

The Supply of Goods and Services Act 1982 provide consumers with an avenue to make a claim if the supply of goods and services is well below the reasonable standards required by this Act.

But first it is important to establish whether a contract exist between you as the consumer and the supplier of the goods or services.  It is necessary for the courts to see that some form of contract exists preferably a written contract, an oral contract may be considered or perhaps your contract is created through a previous course of dealings with the supplier.

Next is to work out the expressed terms of the contract are and any implied times. These can take the form of the following:

- To provide goods/service is an express term.
- Delivery by a specific date is an express term
- Payment for the goods/service is an express term

Terms can also be implied into a contract by the Act and can form part of the relevant terms.  These can include:

- Section 4 which implies terms about quality or fitness
- Section 13 which implies terms about care and skill

When the terms of the contract have been established, you just need to work out which of these have been breached.  Once a breach has been established the consumer may have a stronger chance of seeking redress for the loss incurred as a result of the breach.

This published article may contain information of general interest about current legal issues, but does not give legal advice

Consumer’s are you aware of a trader’s (any person who in relation to a commercial practice is acting for purposes relating to his business and anyone acting in the name of or on behalf of a trader)  obligations under the Consumer Protection from Unfair Trading Regulations 2008

Under Paragraph 3 of The Consumer Protection from Unfair Trading Regulations 2008 it clearly sets out that there are five unfair commercial practices for which there is strict liability in the event that a trader engages in such practices.

There are five stated commercial practice which can be considered to be  unfair and in this article we will deal with a trader who takes undertakes a  misleading action.   It states in the regulations that an action is misleading if it contains false information and is therefore untruthful in relation to:-

a)     the existence or nature of the product;

b)     the main characteristics of the product (see these in below list)

c)     the extent of the trader’s commitments;

d)     the motives for the commercial practice;

e)     the nature of the sales process;

f)      any statement or symbol relating to direct or indirect sponsorship or approval of the trader

g)    or the product;

h)   the price or the manner in which the price is calculated;

i)     the existence of a specific price advantage;

j)      the need for a service, part, replacement or repair;

k)    the nature, attributes and rights of the trader (see these in paragraph below);

l)     the consumer’s rights or the risks he may face. 

m)  or if it or its overall presentation in any way deceives or is likely to.

In Paragraph (b) above, the “main characteristics of the product” include

a)   availability of the product;

b)   benefits of the product;

c)   risks of the product;

d)   execution of the product;

e)    composition of the product;

f)     accessories of the product;

g)    after-sale customer assistance concerning the product;

h)   the handling of complaints about the product;

i)     the method and date of manufacture of the product;

j)      the method and date of provision of the product;

k)    delivery of the product;

l)     fitness for purpose of the product;

m)  usage of the product;

n)   quantity of the product;

o)    specification of the product;

p)    geographical or commercial origin of the product;

q)    results to be expected from use of the product; and

r)     results and material features of tests or checks carried out on the product.

s)    any of the matters

In paragraph (4)(j), the “nature, attributes and rights” as far as concern the trader include the

trader’s:-

(a) identity;

(b) assets;

(c) qualifications;

(d) status;

(e) approval;

(f) affiliations or connections;

(g) ownership of industrial, commercial or intellectual property rights;

To avoid problems with potential claims in regard of placing the tenant's deposits in a Tenant's Deposit Scheme.

1. Include the letting agent as a party if they took the deposit.

2. Ensure that the Tenant's deposit is protected in a Tenancy Deposit Scheme within 30 days of receipt.

3. Ensure that the prescribed form is served within 30 days.

4. If you have not protected the tenant's deposit you cannot serve a valid  Section 21 Notice of Quit.

5. If you have placed the deposit monies in a Tenancy Deposit Scheme but have not served the Presribed form this can be done afterwards.   This will enable you to serve a Section 21 Notice to Quit, however, the tenant can then make a claim against the Landlord.

6. All relevant parties should be served with the prescribed form to include possible credit card companies through whom the deposit may have been paid.

7. Relevant parties can include anyone who paid the deposit on the tenant's behalf i.e parents of tenants etc.

8. If you are 1 day late placing the deposit in a Tenancy Deposit Scheme a tenant can still make a claim against you.


This published article may contain information of general interest about current legal issues, but does not give legal advice

Trader's obligations under the Consumer Protection from Unfair Trading Regulations 2008

Consumer’s are you aware of a trader’s (any person who in relation to a commercial practice is acting for purposes relating to his business and anyone acting in the name of or on behalf of a trader)  obligations under the Consumer Protection from Unfair Trading Regulations 2008

Under Paragraph 3 of The Consumer Protection from Unfair Trading Regulations 2008 it clearly states that unfair commercial practices.  .

There are five stated commercial practice which can be considered to be  unfair and in this article we will deal with a trader who takes undertakes a  misleading action.   It states in the regulations that an action is misleading if it contains false information and is therefore untruthful in relation to:-

a)     the existence or nature of the product;

b)     the main characteristics of the product (see these in below list)

c)     the extent of the trader’s commitments;

d)     the motives for the commercial practice;

e)     the nature of the sales process;

f)      any statement or symbol relating to direct or indirect sponsorship or approval of the trader

g)    or the product;

h)   the price or the manner in which the price is calculated;

i)     the existence of a specific price advantage;

j)      the need for a service, part, replacement or repair;

k)    the nature, attributes and rights of the trader (see these in paragraph below);

l)     the consumer’s rights or the risks he may face. 

m)  or if it or its overall presentation in any way deceives or is likely to.

In Paragraph (b) above, the “main characteristics of the product” include

 a)   availability of the product;

b)   benefits of the product;

c)   risks of the product;

d)   execution of the product;

e)    composition of the product;

f)     accessories of the product;

g)    after-sale customer assistance concerning the product;

h)   the handling of complaints about the product;

i)     the method and date of manufacture of the product;

j)      the method and date of provision of the product;

k)    delivery of the product;

l)     fitness for purpose of the product;

m)  usage of the product;

n)   quantity of the product;

o)    specification of the product;

p)    geographical or commercial origin of the product;

q)    results to be expected from use of the product; and

r)     results and material features of tests or checks carried out on the product.

s)    any of the matters

In paragraph (4)(j), the “nature, attributes and rights” as far as concern the trader include the

trader’s:-

(a) identity;

(b) assets;

(c) qualifications;

(d) status;

(e) approval;

(f) affiliations or connections;

(g) ownership of industrial, commercial or intellectual property rights;

This published article may contain information of general interest about current legal issues, but does not give legal advice

Southwark London Borough Council - Case Law

A RECENT CASE REGARDING HOMELESSNESS

Complaint against Southwark LBC [2012] Complaint No 10 000 20
22 May 2012

In April 2009 her landlord served a valid Housing Act 1988 section 21 notice requiring her to leave and later began proceedings for possession. She approached the council to make a homeless application but was told to "come back when the court had made an order for possession". The court made an order to take effect on 10 September 2009. She went back to the council without success. A council officer admitted that some of its caseworkers "may advise applicants that nothing can be done for them until they have an eviction date" i.e. a bailiff's appointment. The council also decided that the complainant was not eligible for homelessness assistance as she was not a 'worker'. She sought a review and asked for accommodation pending review. The council then provided accommodation and on 30 November 2009 notice was given that the review had succeeded. The ombudsman found extensive maladministration by the council in its handling of the homeless application including: failure to keep proper records; failure to decide whether it was obliged to provide interim accommodation prior to its decision on the application; failure to properly investigate the application; and excessive delay in handling complaints about its poor service. The council agreed to provide additional training to homelessness staff on taking homeless applications, conducting homeless enquiries and offering interim accommodation. It also agreed to pay substantial compensation.

This article is taken from http://www.gardencourtchambers.co.uk/bulletins/category/bulletin_detail.cfm?iBulletinID=742

This published article may contain information of general interest about current legal issues, but does not give legal advice

Are the streets the only option if you are about to become homeless

Are the Streets the Only Option if You Are About to Become Homeless?

The Homeless Act 2002 allows all UK residents who are about to find themselves homeless or are currently homeless rights to accommodation even if this is only temporary providing you are eligible.

Sections 1 to 3 of The Homeless Act 2002 imposes a duty upon all local housing authorities to review homelessness, prevent homelessness, secure accommodation for those who are or may be made homeless and to provide support for homeless victims.

Do you know everyone is eligible for assistance except if you are subject to immigration control i.e. not British Citizens and EEA Nationals that are habitually resident in the UK.  Refugees that are officially recognised as refugees can also be eligible.   As long as you are eligible the council must offer you accommodation whilst they look into your situation.  If you are not homeless yet but could become homeless in the next 60 days, your local council must give you advice and do all that the can to help you keep your home.

If you also match any of the following circumstances:-

·         You are pregnant or you are living with your girlfriend, partner or husband who is pregnant

·         You live with dependent children or children are expected to live with you

·         You are vulnerable due to old age, mental illness, disabled or expected to reside with someone who is vulnerable

·         You are threatened with homelessness as a result of an emergency such as a flood, fire, or other disaster

·         You are 16 or 17

·         You are under 21

Then you could be considered to be a Priority Need for Accommodation which further strengthens your case with the council for accommodation.

At this point, it is also important to note that if you satisfy the conditions above and you have not made yourself Intentionally Homeless which is defined in the 2002 Act as

Providing you have not intentionally made yourself homeless then your local council will provide permanent accommodation.  You may be housed in temporary accommodation for a short while until something permanent becomes available but you will not find yourself on the streets.

 “A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy”

Councils will consider your local connection.  That is things such as where you were living, where you currently work and any family or relatives you have in the area.

You may be wondering what you must do to get the council to act for you or whether you need to make or complete application forms.  Well the good news is you just need to go along to your local council and the councils duty to you is triggered upon YOUR request for assistance.

You can get further information form Shelter a dedicated organisation that helps homeless people.  Please see their website http://www.shelter.org.uk/

This published article may contain information of general interest about current legal issues, but does not give legal advice

Penalties Landlords Face If Deposit Not Placed in TDS Scheme

What are the penalities if a Landlord fails to place the tenants money in a Tenancy Deposit Scheme within 30 days.


Under the Localism Act 2011 if the tenancy is still ongoing the Court must order that the whole of the  deposit be  paid to tenant or into a  custodial TDS scheme.


If however the tenancy is over the Court may order the deposit to be paid in full to the client or alternatively the deposit may be ordered to be used by the Landlord for unpaid rent, or to offset damage to the property etc


The actual penalty that will be payable is variable and will be anything between 1 and 3 x the amount of the deposit.

This published article may contain information of general interest about current legal issues, but does not give legal advice

What happens if a Landlord has not protected the tenant's deposit and he serves a Section 21 Notice

If a Landlord has not protected the tenant's deposit and he serves a Section 21 Notice, the Notice will be considered to be invalid

If the Landlord has protected the deposit within the 30 days period but has not served the prescribed information, the Landlord can serve the prescribed information late which will allow him to serve the Section 21 Notice however the Tenant can still make a claim against him.

If the landlord has not protected the deposit at all there are three things that a Landlord can do:-

1.   Return the deposit in full immediately

2.   Agree with the tenant what deduction should be made in respect of damage etc to property (if a tenancy is ongoing this might be in impractical solution)

3.   If they have already been sued then the Court will  make the appropriate order or the Landlord can return the deposit and provide a monetary sum in full and final settlement of the claim, however if this is done outside the Court's jurisdiction the Landlord needs to ensure that such an agreement is documented and signed

The above relates to all tenancy created after the 6th April 2012

This published article may contain information of general interest about current legal issues, but does not give legal advice

Who is owed an obligation under the Tenancy Deposit Scheme

In The Housing Act 2004 Section 212 9(a)  it states "references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies,"

This potentially means letting agents could be liable for breaching the obligations under the Tenancy Deposit Scheme The leading case in this matter is Draycott v Hannells Letting Limited 2010 full details of which can be located at http://www.bailii.org/ew/cases/EWHC/QB/2010/217.html

This published article may contain information of general interest about current legal issues, but does not give legal advice

Who does the Tenancy Deposit Scheme protect and who can make a claim under the Tenants Deposit Schemes

The Scheme is there to protect theTenant, however this mean that where joint tenants provide a deposit those same joint tenants must all make a claim, if one of the joint tenants does not or cannot agree to make a claim then the other tenants may be at a disadvantage.

Further to the Housing Act 2004 Section 23.10 the other people who are protected under the scheme are relevant parties who have paid the deposit on behalf of the tenant.  In many instances this will be the tenant's parents, however in some instances letting agents take deposits from tenants by credit card and this is a loan.

Therefore it could be considered that the credit card company may be a relevant party  and as such the both the parents/party who paid the deposit on behalf of the tenant/or credit card company may be able to bring a claim if the deposited is unprotected or incorrectly served in the prescribed format (Housing Act 2004 Section 213 -5 & 6)

So Landlords need to be aware that it may be necessary for you to serve not just the Tenant but also any relevant party with details of the authorised scheme applying to the deposit within 30 days of receipt of the deposit monies in the prescribed form.

This published article may contain information of general interest about current legal issues, but does not give legal advice

What obligation do Landlords have to Tenants in regard to Deposits.

Tenants are you aware that under the Housing (Tenancy Deposits) (Prescribed Information) Order 2007  not only is it necessary for your deposit to be placed in a protected scheme and for you to be informed of the way in which the scheme works but you must also be provided with details of the Landlord's

Name
Address
Telephone
E-mail
Fax
Details of the amount of deposit taken
The Start an finish date of the tenancy agreement
Who holds the deposit
and your details should also be noted

An obligation of a landlord that is frequently overlooked is the  requirement that you are informed by reference to the tenancy agreement in what situations deductions can be taken from your deposit.

Further you must be provided with Certification from the Landlord that this information is correct.

This published article may contain information of general interest about current legal issues, but does not give legal advice

Where should you place your tenant's deposit monies

When deciding where to place tenant's deposit monies Landlords may be interested to know that under the Government's Custodial Scheme there is a statutory process which can be followed when Tenants disappear.

If a landlord has made attempts to locate and inform the missing tenants of the consequences of their actions they can approach a Solicitor and sign an Oath confirming that they have made such attempts to locate the missing tenants and providing details of any deductions they have incurred and thereafter they are allowed to release the deposit monies.

Neither of the two insured schemes have this facility and their view will be that since the tenant's monies are held by the Landlord or the letting agent, if usuccessful efforts have been made to find the tenants and the landlord/letting agents has written to them informing them of the consequences of their actions then there would appear to be no dispute. 

The Landlord/letting agent must therefore make their own decision as to whether they release the deposit but if they do and the tenant returns within 6 years then the insurers will expect the money to be returned to them for adjudication.

This published article may contain information of general interest about current legal issues, but does not give legal advice

Is your Landlord responsible for undertaking  repairs at  your leased premises.

Your Landlord will be obligated to repair your premises when:-

a) there is disrepair;

b) if your landlord has an obligation to repair your premises and has been informed of the disrepairs

The law has a strict definition of the word "disrepair" and for a condition of disrepair to exist two points must be satisfied:-

a)  there has to be some deterioration of a section of your premises from its original better condition

b) the responsibility must be on the person who is accountable as a result of either an expressed or implied agreement.

In the event  that there is a disrepair, no liability can arise under a repairing covenant unless your Landlord is aware of the need for repair, you can inform him orally or in writing but make sure that you make a note of the times of any conversations you have with him/her regarding the repairs and keep a copy of your correspondence,   In the event that he/she does not respond to you then you should forward a standard protocol letter to your Landlord, prior to issuing proceeding.

For further information or assistance please telephone us on 0203 005 3284 or contact us at enquiries@affordablelawforyou.co.uk

This published article may contain information of general interest about current legal issues, but does not give legal advice

Is Your Landlord Complying with the New Tenancy Deposit Scheme?

Since 2007 all landlords that take on new tenants are meant to comply with the new Government approved Tenancy Deposit Scheme (TDS).  But since May 6^th this year, Landlords now have 30 days to place the deposit into a TDS.   Landlords are required to pay tenant deposits into a TDS and their tenants must receive information about the scheme.  Landlords must deposit the funds into the scheme within 30 days from the date of receipt.  There are only 3 organisations authorised to run these schemes and they are:

·         The Dispute Service (The TDS)

·         My Deposits (TDSL)

·         The Deposit Protection Service (DPS) the only custodial scheme

Landlords are required to hold deposits in one of these schemes for the life of the tenancy.

So what effect does this have on you as a landlord or tenant if it is not complied with? 

Well landlords who do not pay the deposit into a TDS or are late doing so may be prevented from repossessing the property as they will not be able to serve a valid Section 21 ‘notice to quit’ on the tenant in question.  So as a tenant, you should check you received the information about the scheme.  If the landlord definitely has not used the scheme he/she will only be able to evict you using Section 21 if one of these 2 conditions has been achieved: 

1) any claim brought by the tenant for not complying with the scheme has been resolved.
2) the landlord refunds all of the deposit money to the tenant or comes to an agreement with the tenant especially in circumstances where there has been damage to the property or the tenant owes an outstanding sum of rent to the landlord.   Tenants please be aware that as soon as the landlord has resolved or refunded your deposit YOU CAN BE EVICTED!

Furthermore, you should note that tenants can make an application to the court for the deposit to be paid into a TDS or returned to him/her and the tenant can also ask the court that the landlord pay him/her an amount anywhere between 1 and 3 times the amount of the deposit known as a penalty.  Landlords you need to be aware that tenants do have up to 6 years after the tenancy has ended to make an application with the court regarding their deposit.  The reason for this is that often it is not until the tenancy has ended that tenants become aware that the landlord had not complied with the scheme.

This published article may contain information of general interest about current legal issues, but does not give legal advice

Holidays, Accident Claims and Rome ii

Part II

Having considered the Rome ii  European regulation many British Lawyers consider that this document is inadequately drafted and that in respect of  personal injury awards the amounts granted will not reasonably cover British costs for rehabilitation and medical care if you require these due to an accident in the European Union. 

So is there are any way you can protect your position, Yes in part,  Parties may avoid the possible negative effects of Rome ii by agreeing to offer non contractual obligations to the law of their choice. This can be done:

• By a negotiated agreement where all the  parties involved are participating in a commercial activity, or  
• By an agreement entered into after the event that gave rise to the damage which occurred

This choice will need to be clearly specified in respect of the circumstances of the incident.

To obtain a full copy of the Roman ii Regulations go to http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0040:0049:EN:PDF