EasyLaw Consumer Law Workshop• Increases business costs •Those costs get passed on •Consumers are accepting of this •Improves •Confidence ... •Not really an issue with

EasyLawConsumer Law WorkshopDavid Smith

Anthony Gold Solicitors

Introduction

EasyLaw Consumer Workshop 3

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


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


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)


Who Are The Enforcers?

• Local authorities• Trading standards

• EHOs

• Note different levels

• CMA

• ASA

• Individuals


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


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


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


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


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


What is Fair?

• Signing is not relevant

• Hard to understand in UK

• Case law issues

• Any views?


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


Services

• CPR requires clear description of services

• Does not have to be too extreme

• But must be non-misleading


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


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


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


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


Older Rights

• Misrepresentation

• Recission/Repudiation

• Frustration

• Including for pest infestation at start of tenancy


Contact Me

David SmithAnthony Gold Solicitors

[email protected]

LinkedIn: uk.linkedin.com/in/dsnsmith

@hmolawyer


Documents

EasyLaw Consumer Law Workshop• Increases business costs •Those costs get passed on •Consumers are accepting of this •Improves •Confidence ... •Not really an issue with