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
LinkedIn: uk.linkedin.com/in/dsnsmith
@hmolawyer
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