EasyLaw Consumer Law Workshop• Increases business costs •Those costs get passed on •Consumers...

EasyLawConsumer Law WorkshopDavid Smith

Anthony Gold Solicitors

Introduction

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Background

• PRS fairly lightly regulated by comparison with other consumer areas

• Eg financial sector

• Estate agency

• Barely considered at one stage

• Now a key part of any business process

• An increasing area of law

• With the likelihood of more

Why Consumer Law

• Do consumers need protecting at all?

• Increases business costs• Those costs get passed on

• Consumers are accepting of this

• Improves

• Confidence

• Investment

• Productivity

• Always a balance

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Sources

• Initially largely the EU

• Westminster more involved now• Consumers are voters!

• Devolved assemblies

• Some case law

• Professional bodies

• Fill in gaps

• Quangos

• CMA and ASA

• Guidance and commentary plays a role

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What Do We Mean?

• Slightly nebulous term

• Lots of other stuff protects consumers• Tenancy deposit protection

• Disrepair

• HMO licensing

• Usually thought to mean• Law focused on contractual enforceability, fees, and information

• Usually enforced by organs of the state (although less so now)

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Who Are The Enforcers?

• Local authorities• Trading standards

• EHOs

• Note different levels

• CMA

• ASA

• Individuals

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Initial Phases

Setting Up the Business

• A lot of the legislation impacts here

• Business processes are a key means of getting it right

• Good work here pays off later

• Good documents

• Well defined processes

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Consumer Redress

• Must join schemes• Three approved

• If you carry out• Letting work

• Management work

• Codes of conduct and complaints processes

• Enforcement

• Substantial powers• At all phases of the tenancy

• Gaps and flaws

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AML

• Money laundering not currently an issue• Estate agency only

• 4th AML Directive passed in June 2015

• Must be brought into force in UK within 2 years• Government is now stalling

• Will probably apply to lettings too

• ID checks• Not really an issue with Immigration Act

• Sources of funds

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Companies

• Companies must make clear• Their status

• Registration number and registered address

• Info on website and correspondence including emails• And in premises

• Must also clarify insurer in Terms of Business

• And ADR scheme details• In Tob

• And website

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Some Key Issues

UTCCR

• The original fairness regulations

• Being replaced shortly by Consumer Rights Act

• Basically the same though

• Traders and consumers

• Only natural persons

• Exemptions

• For individual negotiation

• And core terms

• Prohibits imbalances in contract

• Penalties and onerous fees for example

• Unenforceable if unfair

• Class challengesEasyLaw Consumer Workshop 14

CPRs

• Relate to fairness of trading

• Clarity

• No misrepresentations

• No pressure selling

• Criminal penalties

• New civil enforcement too

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What is Fair?

• Signing is not relevant

• Hard to understand in UK

• Case law issues

• Any views?

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Initial Instruction

Consumer Rights Act

• Now requires publication of fees

• Also required by CPRs and UTCCR

• Prominently in office and on website

• Fee description and amount

• Don’t forget to include VAT

• Clarity over CMP and Redress

• Enforcement by local authority penalty notice

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Services

• CPR requires clear description of services

• Does not have to be too extreme

• But must be non-misleading

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On and Off Site Sales

• New regulations

• Information for all sales

• Same as expressed elsewhere

• Distance and off site sales have cancellation right

• Information must be given to consumer with cancellation notice

• Offence not to do so and consumer can then cancel at any time

• With no fee payable

• Consumer can always cancel in first 14 days

• Can given consent to pay for work done in that time

• Must give specific consent

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Advertising the Property

• PMA repealed and does not apply to lettings

• But CPRs do!

• Misleading or careless descriptions not allowed

• Be wary of untested and improbable claims (quiet, near, popular, fashionable)

• Watch out for testable and false claims (good schools)

• Defence of reasonable procedure available

• Make sure you have one

• Get landlord to approve descriptions

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Fees and Adverts

• Tenant fees are a big issue

• CRA requires fees to be on website and in offices

• Also requires clarity over CMP and redress schemes

• ASA rulings and CAP guidance

• Non-optional fees must be advertised beside rent at earliest opportunity

• Slight tension between CAP and CRA

• Breach of CAP guidance is also a CPR issue

• Means possible criminal penalties

• Also civil recovery of fees paid

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Civil Recovery

• Mentioned already

• CPR has been amended to allow for civil recovery by consumer

• Where unfair trading has occurred

• Consumer can seek to set aside agreement

• Inside first 90 days

• Includes walking out of tenancy

• Full refund if done inside first month

• Only applies to ASTs and holiday lets

• In all cases consumer can seek redress

• To recover monies paid due to aggressive or misleading practice

• Also possible to seek damages or discounts

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Older Rights

• Misrepresentation

• Recission/Repudiation

• Frustration

• Including for pest infestation at start of tenancy

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Contact Me

David SmithAnthony Gold Solicitors

david.smith@anthonygold.co.uk

LinkedIn: uk.linkedin.com/in/dsnsmith

@hmolawyer

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