Holding Deposit issue over slow broadband

Hi Evangelos,

Have you had any response as yet from the agent? It would be interesting to hear the opinions of some fellow agents as to how this situation would be dealt with by their agencies and also some feedback from solicitors as to how you stand legally.

I think as a matter of equity and common sense that you should receive at least a partial refund, as you state, there was no financial loss to the landlord by having the property taken off the market for 3 hours and I think that you have certainly taken the correct action in the first instance in writing to the agent.

Good luck

This looks very unreasonable to me. Given that you agreed to the terms of the holding deposit by signing their documents then presumably they can legally hold you to that. But if you really did get back to them within 3 hours then they are being especially inflexible. If this was up against a judge or ombudsman you'd surely have a good chance of winning.
Agencies though are subject to consumer law so you possibly have a good case on 2 counts - firstly the property was mis-described as the advertising gave incorrect information about the broadband speed, secondly I think perhaps you should be entitled to a cooling off period. Have a look at this article all about consumer Law and how it relates to agents:
http://www.landlordlawblog.co.uk/2016/02/08/the-largely-unknown-perils-of-consumer-law-which-lurk-to-trap-letting-agents-into-expensive-errors/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+TheLandlordLawBlog+%28The+Landlord+Law+Blog%29

Does agency belong to a redress scheme ? if so write back to the agency to say you will be complaining to scheme, plus you are considering legal action (qoute from the link) and make sure you copy it in to someone senior in the agency.

Good Luck

Excellent advice Mike

The agent now has a duty under consumer protection to warn anyone else that may wish to rent the property about the slow broadband, as they now know it is an issue. Check if the advert has been updated…

This is very sound advice. I can't thank you all enough - I've taken Mike's advice and composed the following email which I've forwarded to all senior agency emails I could find. I will let you know how it all proceeds.

Dear ---.
I am writing to you to express my distress concerning an adventure I had with your agency. In short, I was looking for an apartment in the Canada Water area. After viewing a few properties, I agreed to let one which was convenient for my work place transportation wise. The following email explains everything that happened since - (I have adjusted the original form because I realised I first contacted you in 4-5 hours, and not 3. I had to go through my emails to make sure). Neither the agent I contacted, very politely, through email nor your agency deigned to respond or help me resolve the matter. Therefore I took it upon myself to ask for legal advice, the response of which I will be including in this email. I would still very much like to resolve this without implicating court action but in order to do that you'd have to contact me - I've done my best on this end. Please feel free to go through the following email and feel free to contact me in order to resolve this:

---- Email number one -----

Dear ---.

I am writing to you regarding a small adventure I had with holding deposits and your agency.

A few days back I put a holding deposit offer down for a flat I really liked. The payment was made at approximately 8:50 AM in the morning which included fees and first week's rent for 780 pounds. I may well say here that I used rightmove to find the property, used the rightmove broadband checker and found that the currenty property's broadband satisfied my needs.

A couple of hours later, I started placing an online order for two weeks down the line to get max broadband speed. Only to discover at my horror that the actual property broadband was horrendous (similar to the entirety of the Rotheirhite area) at 1-2 MBps. I was quick to call the agent, express my concerns and discuss removing the deposit. Or getting a part refund. To which, I was told that I had signed it to be non refundable, for admin/references costs etc.

Now I understand the admin/referencing costs of the part. I had --- go through a process to verify me and so on and so forth. However, I also paid one week's rent for the landlord (presumably for taking the property off the market - to cover for lost 'time'. But I alerted the agent literally 4-5 hours afterwards. The property could've gone back up in the market. For those 4-5 hours, I was charged and withheld one week's payment.

I know it's in your 'right' to keep all of that money, since I 'signed' the acceptance. But I would've hoped and expected that, as a gesture of good will given my speed of response and payment as well as alerting you to a change of heart due to unforeseen circumstances that would impair me socially and professionally (broadband), I'd be at least refunded some of that money. It was not a change of heart based on the looks or location - but rather, a change of heart based on information that had not been disclosed to me - a terrible, terrible internet connection which would detriment both my professional and social experience. In all fairness having a central london apartment with a maximum 1-2 MBPs line is something that should at least be mentioned by the agency when letting an apartment.

I am going to rate your agency well for being polite and fast in showing properties. Still, I would like you to consider my plea and help me with at least some partial refund from that first week's rent that was never put to use. Otherwise, I'd be inclined to ask for legal advice from a third party which I'd rather not do; something may come out of it, something may not but in all truth I think we'd both benefit more from discussing this and finding some sort of compromise that would allow me a bit of breathing space over a huge amount such as 780 is for a matter of a property being 'off the market' for three hours tops... I've had nothing but politeness from your agency and I've been equally polite. If there is any way you could help me with this, or reach a compromise, I'd be delighted to discuss it.

It'd also help me praise your agency further, instead of leaving a partly sour review on the forums I frequent, considering my adventure and what I consider to be unfair treatment of my holding deposit given the time span of 4-5 hours.

Please feel free to contact me to discuss this further, whether by email or phone number. My phone number is included at the end of this email.

All the best,
Evangelos Aktoudianakis

07979193819

--- Email number two ---

(Your agent, after I have alerted her on the refund issue - offering to find me 'another' property since I didn't take the first one.... )

Hi Evan,

Hope you are well.

Have you found a property to rent yet?

If you could let me know would be great so we can update your details on the system.

Kind regards
---
Lettings Senior Negotiator

(And my response)
Hello ---,
Thank you for your care! Yes I have found a property and put down a deposit (250) after physically calling every broadband company to check if they support the premises.
I am still a bit disappointed over the whole deposit holding situation. Like I said I will leave you a good review the same with your agency. And I can justify the initial agency fees buy I cannot justify a weeks rent for 4 hours change of mind.
I would have hoped you and I could discuss this further and reach a compromise that would aid me as an individual as well... I know I signed and you have a valid point but all things fair I contacted you 4 hours down the line or 5 tops. That does not justify a weeks holding since you put the property on the market almost immediately.
I would very much appreciate it if you gave me a call to discuss this.. There must be a way to reduce the impact on the prospective tenant somewhat considering how fast I was with it and the seriousness of the reason. 780 is really no small sum and I am 100% certain --- can help reduce the impact on me considering the reasons...
After all I paid asap and filled all forms on asap. A gesture of good will would be highly appreciated and would result in even more positive ratings about how your agency cares for the tenants as well.
Please give me a call? Thanks

----

She hasn't contacted me back. Neither has your agency team. Therefore I asked advice on a property site, as well as on shelter. This is the link of my question (where I didn't mention your agency name out of courtesy, to protect your best interests - something none of you have done for me so far):

http://www.property118.com/holding-deposit-issue-slow-broadband/84493/

They have given me some very sound advice. Which I am about to follow. If I don't hear back from you by Tuesday, I will be contacting both ARLA and The Property Ombudsman . I will be forwarding this email, as well as your lack of response. I will furtherly be discussing this on more tennant/landlord forums, to alert people to the situation. I will not be badmouthing you. I will not be accusing you. As you can see from my emails, I've been nothing but polite. But you can't just expect me to walk away from 780 pounds when I was not even informed of the apartment's terrible connection speed. Not when I alerted you, discussed this with you straight away. The cost of referencing me is nowhere near that amount, nor is the time the property was off market.

I also feel terribly disappointed that I've had all my emails and phone calls on the matter ignored - I am more than happy to have anyone go through my phone calls as well to prove I've never insulted, and I've been nothing but polite.

How we proceed from this point on is up to you. I don't really have anything more to lose on this end. My number is :

07979193819

Ian - I just checked.
No, they haven't updated info on the property.

I think that your strongest route may be to attack through the speed indicated in Rightmove. They use Rightmove to advertise and presumably the link you clicked was on the property's page, so this would make it party of the advert from that agency (even if the service was supplied by Rightmove ).

The property was advertised inaccurately. Unless you get back a full refund, you will take them to the small claims courts.

Asking nicely for £780 will not have any effect.

I am inclined to agree with HB. Time to stop being nice and polite! If you don't get a reasonable response in the next few days send a letter by recorded post. Demand repayment of the FULL amount you have lost - after all you wouldn't have incurred any costs at all if the broadband information had been correct. Keep it simple, give them a time scale to respond after which time you will be starting legal proceedings. Say you are claiming redress under consumer law because the property was misdescribed, and also since the contract was agreed off the traders premises ( I presume this is so ?) then you have a right to cancel within 14 days at no loss. Save the full description of the circumstance and arguments for the judge !

Reply to the comment left by "Mike Tighe" at "14/02/2016 - 10:49":

Thank you both for this.
The thing is - I electronically signed payment of the money through my gmail. Of course, the link was sent by them and was done on the day.
Payment was taken over the phone by then. I am not sure this justifies being on their premises, does it?
Still, yes. I'll go down the small claims court if they don't respond within a couple of days.
I can't express how much I appreciate your help.

As HB says your strongest argument is that of misdescription.
The deal was not on the premises as you weren't physically there were you, however I've just read Tessa Shepperson's Landlord Law newsletter from this week. In this she explains .... "Note that these ‘distance selling’ regulations do not apply to tenancies, which are specifically excluded. So tenants do not have any ‘cooling off’ period."
But, it seems to me that taking a holding deposit is not paying for a tenancy is it ? so it may still apply. I would quote it in your threat letter but don't depend on it entirely.
In the same newsletter (hope it's OK to quote you Tessa !) she goes on to say...
"6. Unwinding tenancies

If a tenant is able to show that he entered into a tenancy due (or partly due) to an 'unfair trading practice', he can end the tenancy agreement and get a refund of all fees paid provided he notifies the landlord within one month.

An unfair trading practice could be a misleading description (eg ‘quiet’ where the property is on the school run) or a failure to provide proper information.

Notification to the landlord after one month but before 90 days will allow him to end the tenancy but he must pay for his time in the property.

This is a rule which was introduced in 2014 but is at present little known. However the NUS is informing students about it, so watch out if you do student lets.

NB Similar rules apply to other consumer contracts."

Seems pretty clear you were mislead about the broadband so this should apply, whether or not taking a holding deposit is a tenancy or a consumer contract - it must be one or the other. You'll need to gather proof to show the links that lead you to believe the broadband was faster - save pdf's of all the web pages perhaps ? in case you do end up in a small claims court - which you can do yourself but that's another story.
Don't forget it is still worth contacting ARLA once you've sent your letter who may be able to intervene before you have to go the court route.

We're all happy to help, as most of us here are decent landlords and agents who don't like being given a bad reputation by the less scrupulous ones out there.