Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Agents, bribes and secret profits

 

FHR European Ventures LLP and others (Respondents) v Cedar Capital Partners LLC (Appellant) [2014] UKSC 45

It is a well-known principle that an agent must account to his principal, and that an agent who holds or receives money on behalf of his prinicipal is bound to pay over or account for that money. If a third party then sues the agent for that money, the agent has the right to bring in the principal (“interplead”).

It is also a general principle that an agent owes a fiduciary duty to his principal because he is someone who has undertaken to act for or on behalf of the principal in circumstances that give rise to a relationship of trust and confidence; and as a result the agent must not make a profit out of his trust; and an agent who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of his obligation.

This summer the Supreme Court examined the application of that principal when moneys have been received by an agent as a bribe or a secret profit.

In the case of FHR v Cedars  an agent negotiated the purchase of share capital on behalf of its principal ( the buyer).  Unbeknownst to the principal the agent had made a deal with the seller that they would receive a commission of 10 million euros following the successful sale and purchase.  The buyer, when it became aware of the deal, sued its agent for the 10 million euros.

The Supreme Court held that a bribe or secret commission accepted by an agent is held on trust for his principal;  not only did the principal have a right to sue for the sum equal to the benefit the agent had received, but that the principal has a proprietory interest in that benefit.

“where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule ( “the Rule” ) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal……a bribe or secret commission accepted by an agent is held on trust for his principal”.

In the sphere of lettings, if a landlord’s agent makes a secret profit, that profit is considered to be the property of the Landlord. Clearly an agent holding or receiving rent must hand it over to the landlord:  it is the landlord’s money. An agent holding overpaid rent should also hand it over to the landlord, and let the tenant pursue the landlord for the refund (although that principal is under challenge from consumer protection regulations and codes of conduct).  But what would constitute a bribe or secret profit, the benefit of which would belong to the landlord?

Consider the following examples.

  • An agent arranges for a contractor it has on its books to do work for its managed properties.   The contractor, in exchange for the work, agrees to pay the agent 10% of its profits from the work done. If the agent does not disclose the arrangement and get the agreement of both parties, the agent will be in breach of his duty and that profit will belong to the landlord. Where it is set out in the agent’s terms of business with the landlord that he takes a cut from the contractor, the agent can rely on that clause to show he is not in breach and that the landlord was fully aware and could give informed consent. Again the ability to accept such payments is under challenge from consumer protection regulations.
  • An agent facilitates an early surrender of a tenancy. The Landlord agrees unconditionally.   The agent asks for and takes a lump sum payment from the tenant as consideration for the early surrender but does not tell the landlord of the deal, nor does he pass the money on. That payment belongs to the Landlord. If you are seeking a payment from the Landlords tenant, even if to cover your administration charges, this should be disclosed to the Landlord and agreed by them.
  • The terms of business between agent and landlord provide that the cost of an inventory clerk will be £200.00 plus £50.00 admin fee for arranging the same. The inventory clerk gives a discount of £50.00 and charges only £150.00. The agent does not tell the landlord and charges the landlord £250.00. £50.00 of that money belongs to and must be handed over to the landlord.

Where agents are acting as estate agents any breach of such fiduciary duty could lead them to be struck off. Lettings agents are now at risk of being ejected from the compulsory redress schemes and unable to practice, as well as of being sued for negligence etc.  However agents can protect themselves by agreeing fees with their clients at the outset, and declaring and passing over any monies that come to them during their instruction. Transparency as to all arrangements for receiving payments from any third party connected with the tenancy is key.

 

 

 

Filed under: England & Wales, ,

Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

As many of you are aware the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 came into force on 13 June 2014 (the Regulations).

Rental agreements are specifically excluded so the Regulations do not apply to tenancy agreements but all other contracts are potentially caught. Particularly, the Regulations do apply to lettings and sales terms of business with landlords/sellers that are individuals acting outside their business.

To comply with the Regulations, you are required to give certain information to the consumer. What is required depends on where the contract is concluded. A notice of right to cancel may also have to be given.

If you are required to give notice of the right to cancel, you are advised not to undergo any work during the cancellation period (14 days) unless and until the client requests you to do so in writing otherwise you will not be entitled to charge for the work undertaken.

In light of the Regulations, we have updated our template lettings and sales terms and these are available for purchase from our online shop. Alternatively, if you want to keep your standard form, we have produced a stand-alone template of clauses to be inserted to help you when you are amending it (please note though that this is a template and may need to be adapted to fit your own documents). All versions come with guidance as to when and how the Regulations apply.

If you would like assistance in tailoring to your terms please contact us and ask for a quote.

Prices at going to press:
£150.00+VAT Sales Terms
£150.00+VAT Lettings Terms
£75.00 Guidance and clauses

Filed under: England & Wales, , , ,

Section 21 news ( and comment)

Spencer v Taylor [ 2013] EWCA Civ 1600.

The Court of Appeal has recently revisited the requirements of section 21 of the Housing Act 1988 and its application to statutory periodic tenancies, which in due course is likely to significantly alter and simplify the way notice is served on statutory periodic tenants of an Assured Shorthold Tenancy (AST).

The facts

The Landlord, Mr Spencer, served notice on his tenant, Miss Taylor who was on a weekly statutory periodic tenancy following on from a fixed term agreement. From the transcript of the judgment it would seem that the notice was sent in the usual format that most agents use, and was a “standard” section 21(4)(a) notice. (There is no statutory required standard form but a customary standard form has developed).

The expiry date was in the format approved in the case of Elias v Spencer, i.e. it required possession “after 1/1/2012 or (b) at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice” (i.e. the “saving provision” as approved in Lower Street Properties v Jones.

Possession proceedings were brought once the notice expired. The tenant defended the proceedings arguing that the given date of expiry of the section 21 notice was not the last day of a period of her tenancy and that the saving provision gave a second date, which invalidated the first. In other words a continuation of the interpretation of the requirements of section 21 (4)(a) Housing Act 1988.

The tenant defended successfully in the first instance. The Landlord appealed successfully in the High Court. The Tenant appealed to the Court of Appeal.

The Court of Appeal

The appeal judge hearing the tenant’s appeal in the Court of Appeal, Lewison LJ, concentrated on the requirements of section 21 as a whole, starting with section 21(1) finding:

1. The fixed term tenancy came to an end on its expiry date for the purposes of section 21(1)(a).
2. No other tenancy had come into existence save for a statutory periodic tenancy (which we now all know is a new tenancy following Superstrike!).
3. The landlord gave the tenant two months’ notice.
All three conditions of s21(1) were satisfied and therefore the court could give possession

The significance

To go back (briefly) to basics: section 21 of the Housing Act 1988 provides the mechanism by which a landlord can recover possession of his property that has been let on an AST. A court can grant a possession order under section 21 (1), or under section 21 (4) if certain conditions are satisfied.

Prior to the judgment in this case, the courts have been finding that section 21(1)(b) applied only to serving notice during the fixed term of an AST. This line of thinking is supported by section 21(2), which provides that notice may be given under section 21(1) before or on the day the fixed term comes to an end, even if a statutory periodic tenancy arises part way through the notice period.

Once a statutory periodic tenancy had arisen, it was understood that section 21(4)(a) applied: “without prejudice to any such right as is referred to in [s21(1)], a court shall make an order for possession of a [property] let on an AST which is a periodic tenancy.

The requirements of section 21(4)(a) are that: “…the landlord…has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession…is required by virtue of this section”; and “…that the date specified…is not earlier that the earliest day….the tenancy could be brought to and end by a notice to quit…”

It is well known in the industry that adhering to the requirements of section 21(4)(a) have been tricky to the point of ridiculousness. Possession claims have historically been thrown out of court simply because the landlord required possession on the wrong date, or asked for possession “on” a date, rather than “after” (see Fernandez v McDonald [2003] EWCA Civ 1219). There has been much case law interpreting section 21 (4)(a), some of it to alleviate the harsher requirements of the section, ( see for example Lower Street Properties v Jones in which the court approved the use of the “saving provision” to avoid the risk of putting an incorrect date on the notice).

The law therefore is now that a landlord wishing to gain possession of his property let on an AST which was a fixed term and has become periodic needs to give only two months’ notice in writing, pursuant to section 21 (1)(b) and need not concern himself with rental periods.

So what about section 21 (4)(a) and the case law surrounding it? Fernandez v McDonald [2003] EWCA Civ 1219, the leading case that requires notices under s21(4)(a) to demand possession “after” rather than “on” a date? Lord Justice Lewison considered that that case fell “squarely within section 21(1) rather than section 21(4)”. However he emphasised that his comments on Fernandez v McDonald were not part of the “ratio decidendi” of the case ( i.e. not part of his judgment). Therefore the case law surrounding section 21 (4) ( a) remains good law, but it is section 21 (1)(b) that governed Spencer and Taylor, and by extension any notice served on a periodic tenancy ( statutory or otherwise) that was once a fixed term.

Comment

This judgment is surprising perhaps in that it has come apparently out of the blue, when agents and solicitors up and down the country have accepted ( if reluctantly) the difficulties and specific requirements of serving valid notice on statutory periodic tenancies. However it is well known that there has been significant ( and many would say understandable) criticism of the section 21 (4)(a) requirements and so the idea that the Court of Appeal has moved to simplify things is not so surprising. Further, Lewison LJ’s interpretation is of section 21 is not new – it is just new to the courts.

On the face of it then, Spencer and Taylor has removed the onerous requirements of section 21 (4)(a) from fixed term ASTs that have become periodic. Gone is the need for the saving provision lest the date of expiry be wrong. Gone too is the need to work out what is the “period” of the tenancy when the rent day does not match the beginning and end dates of the fixed term. Instead the landlord/agent simply needs to ensure proper service of the notice according to the terms of the tenancy agreement, and to ensure that he gives at least two months notice in writing as if serving the notice during the fixed term of the tenancy in accordance with section 21(1)(b).

However, some words of caution:

Although this Court of Appeal judgment is good law today this point may be appealed to the Supreme Court and may be overturned in the next year or two. A notice which satisfies section 21 (4)(a) will also satisfy the looser requirements of section 21 (1)(b). Most tenants give back possession and do not quibble over the validity of notices, but if they do, possession claims are usually done on the paper (accelerated) procedure or a 5 minute possession hearing with a District Judge. Court of Appeal judgments take time to trickle down to the lower courts and do you really want to have to set yourself up for an argument or risk an adjournment when you could just serve notice to expire at the end of a rental period?

Tenants wishing to serve notice are still bound by the common law rules which would mean that if they are on for example, a quarterly periodic tenancy, their notice period must still run for a clear quarter and expire at the end of a rental period ( or on the day rent is due). Spencer v Taylor gives landlords a much easier way of serving notice while leaving the tenants with much more onerous requirements.

So after breathing a sigh of relief that we can all forget about section 21 (4)(a) in practice we would suggest that, in light of the above, agents might like to keep the practice of serving notices that comply with section 21 (4)(a), at least for the near future.
Section 21(4) a will continue to apply to contractual periodic tenancies which never had an initial fixed term, and to tenancy agreements which provide for an initial term to continue on a contractual periodic basis . The latter may become more prevalent following the Superstrike ruling as a way of avoiding the need to serve prescribed information, and it should be noted that for the purposes of section 21 (1)(a ) the tenancy will not have come to an end at the end of the fixed term and therefore section 21 (1) (b) will not apply.

In conclusion, the ruling in Spencer v Taylor is good law and should in the long run make serving notice on tenants much simpler. However for the moment our advice is that if you do change your systems to serve section 21 (1)(b) for all but contractual periodic ASTs, you should do so knowing that the courts might take some persuading that the notice is validly served. You will also have to keep an eye out for any Supreme Court reversals. If you are prepared for this then fine, otherwise it might be easier to let others beat the path first.

Filed under: England & Wales, , , , , ,

Yes you are your brother’s keeper. Immigration Bill 2013

Last week the Immigration Bill was given its first reading in Parliament. As was mooted in the Queen’s Speech, it contains requirements on landlords and agents to check the immigration status of tenants, with penalties for failure to comply.

If the Bill becomes law, people living in the UK without the “right to rent” are to be prohibited from renting premises in the UK. Section 17 of the Bill provides that persons “disqualified by immigration status” are not to be granted tenancies. Tenants who become disqualified during a tenancy are to lose their right to rent.

And the landlord/agent is responsible for checking.

If a landlord and/or agent lets a property to, renews a tenancy agreement with, or possibly allows continued occupation once a statutory periodic tenancy arises of a disqualified person, that landlord/agent will face a penalty of up to £3000.00.

There is a list of excuses that landlords can look to rely on, including that it was the agent’s fault (!), or that the “prescribed requirements” ( yet to be prescribed, but probably something along the lines of taking copies of passports/visas etc) were complied with before the tenancy was granted. If a person becomes disqualified during the tenancy the Landlord can try to wriggle out of paying a penalty if he tells on the tenant. Agents will have similar excuses set out in section 21.

The penalty system looks like this: 1. Landlord/agent receives penalty 2. Landlord/agent objects 3. Penalty is cancelled, reduced, increased, or no action to be taken. The prospect of an increase might put some people off lodging an objection.

The Bill anticipates that landlords might try to get around the responsibility to check immigration status by inserting a clause into the tenancy agreement prohibiting occupation by a disqualified person; section 17(6) provides that any such clause will be ignored for the purposes of determining whether there has been a contravention.

In anticipation of the fact that asking landlords and agents to do the job of the UKBA could give rise to racial profiling and discrimination ( hmmm, that name looks a bit foreign, let’s be on the safe side and not let our property to them),
Section 28 provides that a code of practice is to be issued to ensure compliance with the Equality Act 2010 and Race Relations ( Northern Ireland) Order 1997. Interestingly though a breach of the code will not incur civil or criminal proceedings. This looks like a dangerous balance: breach of the Immigration Act will incur a penalty, whereas breach of the so-called safe-guard will not.

Points to note:
• The Bill is currently in draft form. If and when it becomes law the current draft provisions may have been amended considerably.
• It does not apply to British Citizens, EEA nationals or Swiss nationals.
• Currently the referencing checks that reputable agents carry out would probably provide the necessary information ( sight of passports, evidence of bank accounts etc).
• The Bill covers tenancy agreements whether written or oral.

The above may seem unusually political for a Painsmith blog. This is not the intention. However Painsmith is committed to helping to eliminate discrimination in the private rental sector and in its current form this bill is set to cause problems.

Filed under: England & Wales, , , , ,

Advertising guidance for letting agents and private landlords

…..is finally with us. Readers will recall the case involving a complaint against Your-move.co.uk Ltd ( Your Move) stating that an advert that had been placed on Rightmove did not contain details of compulsory charges such as administration fees. We blogged on this here.

So six months down the line we have some guidance from the Committee of Advertising Practice Compliance team (CAP). The CAP has written to various organisations in the lettings sector with guidance on how to comply with the advertising code.

See here for the guidance. Readers should look especially at the key points 1-9, and also the helpful examples.

The CAP letter warns that they will be “closely monitoring ads in all media from 1 November 2013 onwards and will consider appropriate follow-up action against non-compliant ads from this date”.

Agents should also take a look at the CAP advice targeted at letting agents here:

Filed under: England & Wales, , ,

Rent Review: RPI, CPI and RPIJ

Commonly over the past few years longer term agreements or those with rent review clauses have tended to review the rent in line with the Retail Prices Index (RPI).
RPI was previously a National Statistic prepared by the Office of National Statistics (ONS) and used by Government as a measure of price changes. However earlier this year it was downgraded so that it was no longer a national statistic. ONS has confirmed that they will continue to produce RPI figures for the time being. This means that for agreements which refer to this as the measure to be used for calculating any rent review there is no need to worry. The statistic is still produced and ascertainable so the clause can still be operated. Remember all parties are bound by the terms of the lease and the court will give all words a common-sense interpretation. This means that simply because RPI is no longer a national statistic there is no reason why it cannot still be used.

So what about the future? You can still use RPI. It still exists and can be readily determined (even if a little harder to find on the ONS website than previously). The issue is that some parties are uneasy about using a statistic which is not a nationally excepted measure of price increases. RPI does however include housing and mortgage costs. For this reason alone it may be said to be a more accurate prediction on how inflation has affected rents although some economists suggest such figures alone help to perpetuate inflation.
Certain other figures are referred to. In particular the Consumer Prices Index (CPI) which is also calculated having regard to a specified “basket” of items save it does not include housing and mortgage payments. Hence this has tended to be considerably lower. If you are acting for Landlords CPI is less likely to appeal as the percentages have historically been substantially lower than RPI.

We are due to get two new indices produced by ONS. Both are meant to give a “truer” reduced level of inflation which again a landlord may disagree with although both supposedly will include some reference to housing costs. The two are RPIJ and CPIH. The ‘J’ in RPIJ stands for Jevons, which is the formula that replaces the one that was found to not meet international standards. It is likely to be lower than RPI. CPIH is similar to CPI but includes owner-occupier housing costs. It seems clear one of these will become the preferred option for including in rent review clauses but time will tell. There will always be a pull between landlord and tenant to adopt whichever either side sees as the most advantageous to them.
It should be remembered that a rent review clause can contain whatever mechanism the parties agree. This could include agreed increases by fixed amounts or determination by an external party. The later whilst common in commercial leases has tended not to find favour with residential tenancies given the short time nature means parties want a formula which will not put them to expense.

The bottom line is as ever to remember whatever terms are placed in the tenancy are binding upon both parties unless they mutually agree to the contrary.

Filed under: England & Wales, , , , , ,

Private Rented Sector Consultation

Just a reminder to everyone in the Rental Industry that the Communities and Local Government Select Committee is currently conducting an enquiry into the private rented sector. Submissions have been invited from any interested party dealing with the private rented sector. Submissions should be emailed to clgev@parliament.uk by 17th January 2012.

In particular submissions are being sought in connection with possible rent control and also regulation of the sector. Full details can be found here.

Filed under: England & Wales, , , , , , , , ,

Electronic Signatures: Can we use them?

We have over the past few months seen a rise in the number of enquiries we receive about the use of “electronic signatures” for the signing of tenancy agreements.

This area is complicated and not 100% clear. For the purposes of this article when we refer to a tenancy agreement we mean an assured shorthold tenancy (“AST”). Historically the rule has always been that you should obtain a “wet” signature on the tenancy agreement from both the Landlord (or the Landlords agent) and the Tenant before commencement. Many agreements are also drawn up that they are a deed and the signatures are witnessed. Generally for a valid AST of 3 years or less this does not have to be by deed and so does not strictly require a witness.

There are various providers of electronic signatures which have a method of encryption and digital certificate which can be used to provide an audit trail of how, when and by what address/information they were created. It is obviously important that before opting for any electronic signature system that you ensure you are satisfied as to the system and that it can, if required, provide to you the proof and evidence which a Court may seek. EU Directive 1999/93/EC sets out the standard which should be met.

The Electronic Communications Act 2000 provided that electronic signatures can be used as evidence of a signature (see section 7 of this Act which provides a definition). This Act came into force in July 2000. The Land Registry also indicated it would be looking at adopting electronic signatures but at this time this appears to have been shelved for the time being.

What the Act means is if you have an electronic signature you can rely upon this as evidence in a Court of Law. This means is if you can satisfy a Court that there is a valid electronic signature you will then have a valid tenancy. If this was an agreement which had to be completed as a deed to comply with the Law of Property (Miscellaneous Provisions) Act 1989 (i.e. for a tenancy of more than 3 years) then this system would probably not work and you will probably need wet signatures. To satisfy a Court you would need to produce an audit trail and be able to explain how the system worked. Unless challenged by a party it is likely that a Court would accept this at face value.

It is worth bearing in mind that since of course a tenancy agreement does not have to be in writing even if a party did challenge the validity of the electronic signature it may well still be possible to show that the “agreement” was evidence in writing of the terms which had been agreed. This would be in the same way that when agreements are challenged you would often look to rely upon the conduct of the parties and correspondence/emails to satisfy a court as to the terms.

All of the evidence appears to be that there is no reason why a tenancy agreement can not be signed electronically provided you use a reputable form of electronic signature. There may be other issues relating to making sure you have correctly identified the parties but your existing procedures hopefully would cover this. We do, however, expect that it is likely that there will be some case law and no doubt at some point the Courts will give guidance on what they will expect to see but for the moment we are not aware of any such guidance.

What seems clear is that this form of completing agreements is going to become the norm. If anyone has any experiences relating to the use and interpretation by the Courts please do let us know. In the meantime if and when we hear we will blog further!

Filed under: England & Wales, , , , ,

A survey of tenants experience……

A survey of tenants experience……

Resolution Foundation, an organisation that works to highlight the experiences of low-to-middle earners (LMEs) through its research has published a report on its survey of tenants experience in the private rented sector.

Resolution Foundation conducted I mystery shopping exercise of 25 letting agents and also spoke to tenants about their experience in the lettings market where a letting agent was involved. The main cause for concern appears to be that the lettings agents are unregulated and that there is a lack of transparency with agents charging arrangements.

The survey found that many agents do not confirm what these fees are in the initial paperwork which can cause some financial difficulty even before the tenancy has begun. PainSmith Solicitors has for many years stressed the importance of confirming these fees at the outset so these results are alarming especially given that in some cases they may not be recoverable under the Consumer Protection from Unfair Trading Regulations.

The report has therefore made the following recommendations:

-letting agents to be brought under the Estate Agents Act (1979), thereby giving the Office of Fair Trading powers to ban agents who act improperly;

-all letting agents to become members of an ombudsman service, giving tenants the opportunity to pursue redress in cases of poor practice;

-an amendment to the code of practice of the ombudsman service to make it a requirement for agents to present landlord and tenant fees on their websites, in adverts and in all paperwork in a way that is easily comparable across agents;

-government to make use of the 2012 retendering process for the tenancy deposit protection schemes to find ways to make it easier for tenants to use their old deposits when moving in the private rented sector;

-local authorities to extend rent deposit schemes to members of the low-to-middle income group.

Whether or not you agree with the recommendations it is important that tenants understand what they are expected to pay and when. These fees should therefore be confirmed in writing before any agreements are concluded to ensure that the fees are recoverable.

Filed under: England & Wales, England only, , , , , ,

Common sense prevailing in contracts

The Supreme Court has confirmed in Rainy Sky SA and others v Kookmin Bank that they are prepared to ignore large parts of the original contract wording that can sometimes seem ambiguous and inconsistent in order to take a more commercial approach and apply common sense. This case demonstrates the continuous move away from a strict and literal approach to contractual constructions by applying common sense in order to eliminate the ambiguous wording of contracts which can cause disagreements amongst the parties with the wording often having more than one meaning.

In Rainy Sky SA and others v Kookmin Bank the Supreme Court unanimously overturned the previous decision of the Court of Appeal. The facts of the case are complicated because it’s a Maritime case and outside the remit of this blog. Therefore, briefly, the drafting of the guarantee agreement was the main cause of disagreement between the parties, as the drafting did not match that as stated in the shipbuilding contracts. Where the shipbuilding contracts had stated that should one party enter into insolvency then the buyers would have a right to rescind the contract and therefore obtain a refund for payments made pursuant to the contract, the guarantee agreement did not. Paragraph 2 of the guarantee stated that the buyers would be entitled to a refund if they exercised their right to “termination, cancellation or recission” their contracts and paragraph 3 provided the guarantee obligation that the defendant would pay the buyers “all such sums due to you under the contract”. But when one party began having financial difficulties and entered into a form of insolvency the defendant refused to give them a refund on the guarantee paid pursuant to the contract because the defendant argued that the insolvency was not “termination, cancellation or rescission”. The claimants argued that this literal interpretation made no business sense and that there was no good reason why insolvency should be excluded.

The courts decided to approach the contractual wording with what a reasonable person would have understood the parties to have meant, keeping in line with the consistency of the commercial purpose of the bonds. This approach to construction has been used in previous case law, notably Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd where it was held that the ultimate aim of interpreting a provision in a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. However in Rainy Sky SA and others v Kookmin Bank [2001] UKSC 50 they were faced with the question of what happens if the reasonable person is capable of reaching two different interpretations from the same words? The court found it necessary to use the construction in a manner consistent with business common sense, as a language capable of producing an absurd or irrational result was held not to prevail over the commercial purpose of the agreement. The court therefore held that insolvency would be included in the list of grounds on which the parties could rely on in order to terminate the agreement and have the bond returned.

So why did the court allow common sense to prevail and what does it mean for the future? Language can be deemed as flexible in the sense that what might seem reasonable to one, isn’t deemed reasonable to the other. Thus meaning that although the presumption of a reasonable person can be used in most situations, it cannot be used in every situation that arises.

What does this mean to landlords and letting agents?
This case means that contracts, and particularly guarantee agreements, will be looked at by the Courts with an eye to giving them the force that the parties reasonably intended. They will not normally allow a guarantor to escape their obligations by reading a piece of ambiguous wording in an overly restrictive manner.

However, this should not be seen as a licence not to take care with documents. No landlord or agent would wish to undergo the expense of the multiple appeals that this case required.

Filed under: England & Wales, FLW Article, ,

Emails as Contracts

In University of Plymouth v European Language Centre Ltd [2009] EWCA Civ 784 the Court decided that in legally binding e-mail correspondence it is essential to have an unequivocal offer and acceptance, together with agreed contract terms.

In the case itself , the parties had been in a contractual relationship since 1998. The University of Plymouth had provided European Language Centre Ltd (ELC) with student accommodation and teaching facilities, by a series of annual written contracts. Until 2005, previous contracts had recognised both parties’ intention to continue the contractual relationship in the coming year. However, the 2005 contract contained no reference to contractual obligations for the coming year, 2006.

During 2005, the parties had discussed by e-mail correspondence, the possibility of the University reducing the number of student accommodation available for ELC to use. ELC did not initially reply, but then in later e-mail correspondence expressed that they found the reduction unacceptable and the parties did not therefore formally produce or agree to a contract. ELC later alleged the University was in breach of contract by failing to provide the reduced beds and submitted that that the email of May 2005 constituted an offer of a reduced number of beds, which it had accepted and relied upon.

The Court noted that the parties had established a degree of mutual trust since 1998, and that it was usual for negotiations to be formally concluded by an annual written contract. The Court therefore held that the e-mail correspondence was lacking in detail and considered that it did not amount to an offer nor a clear acceptance. The Court held that an acceptance must be communicated in a way that objectively sets out on what basis the acceptance was being given and based on the facts before them ELC had done nothing which amounted to acceptance, either by words or conduct. The parties’ comments within the exchange of emails together with the previous contracts were not enough to determine that an unequivocal offer and acceptance had been made.

This decision emphasises the importance of the four essential elements which must exist for there to be a legally binding contract that is; offer, acceptance, consideration and an intention to create legal relations.

Agents are therefore advised to ensure that there is clear communication with Landlords and Tenants and ideally all negotiations should be concluded by written contracts which are clear and free from ambiguity. We have noted that many agents automatically place the phrase ‘Subject to Contract’ within their signature which will have the effect of preventing any contract being concluded this way. However, they should ensure that they obtain instructions and clarify that they or their clients do not want to be bound by informal email or telephone exchanges and should not assume that this is the best position.

Filed under: England & Wales, Northern Ireland, , ,

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