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Fairness of term

Re: Fairness of term

Postby iobject » Sat Jul 23, 2016 10:36 am

Smouldering Stoat wrote:Because the member is not a consumer.


That's quite a generalisation. Whether a member of the scheme is a consumer or not is not clear cut and depends on individual circumstances. E.g. 'accidental landlords' are usually deemed consumers.

Even if the scheme member is deemed not to be a consumer there are still a level of protection against unfair terms.

Hence my question.
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Re: Fairness of term

Postby Smouldering Stoat » Sat Jul 23, 2016 10:58 am

No they aren't. A landlord's trade, business, craft or profession is being a landlord. The UTCCR do not apply. Nor does the Consumer Rights Act 2015. Where they *do* apply to a landlord, of course, is that they protect the tenant against him.
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Re: Fairness of term

Postby iobject » Sat Jul 23, 2016 11:22 am

Smouldering Stoat wrote:No they aren't. A landlord's trade, business, craft or profession is being a landlord. The UTCCR do not apply. Nor does the Consumer Rights Act 2015. Where they *do* apply to a landlord, of course, is that they protect the tenant against him.


I don't want to argue. As said, this isn't black and white. Individual private landlords can be deemed 'consumers'.

In any case, I'm not sure that this is key to my question.
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Re: Fairness of term

Postby theycantdothat » Sat Jul 23, 2016 12:20 pm

For the record the UTCCR are no more. They were abolished by the Consumer Rights Act 2015 - see para 34 of Schedule 4. I only found that out this morning.
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Re: Fairness of term

Postby Smouldering Stoat » Sat Jul 23, 2016 12:32 pm

Indeed. However, the effect is the same for our purposes: the Act says that, in certain circumstances, terms of consumer contracts may not be enforceable by the trader if they are unfair. It follows that there is no general rule of law to that effect (or it would have been unnecessary for Parliament to make a law to that effect).
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Re: Fairness of term

Postby dls » Sat Jul 23, 2016 4:44 pm

I believe that a clause giving the right to one party to change the terms as they please without agreement from the other party is unfair.


It would be a stretch to describe a landlord as a consumer as against the tenancy deposit scheme, but I suppose circumstances might arise allowing a different result.

However your description of the effect of the clause may also be too general.

A similar discussion arises in employment disputes. There is a very well trodden path for holding that there may be circumstances where the economic justification for such clauses may be sufficient. I suspect that the answer may be that the clause might be held to allow some changes but not others.
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Re: Fairness of term

Postby iobject » Sat Jul 23, 2016 5:36 pm

Regarding the issue of landlords as consumers, it should be noted that private landlords are in some, not uncommon, cases deemed consumers in relation to mortgage lenders and letting agents.

Therefore, it seems quite reasonable that these landlords should also be consumers in relation to tenancy deposit schemes.
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Re: Fairness of term

Postby dls » Sat Jul 23, 2016 5:50 pm

It does not follow. They may be consumers when buying a hair dryer, without being such when buying a fridge to place in the flat.

You have to be extremely careful about generalisations in this area. Different legislations carry very different definitions and someone who is a consumer in one context for one piece of legislation cannot safely be assumed to be one in another context. The definitions do in fact vary so widely that you must really ask whether a person is a consumer for a particular statute.
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Re: Fairness of term

Postby iobject » Sat Jul 23, 2016 5:58 pm

Granted, in relation to lenders the piece of legislation is different, however it is the same piece on relation to letting agents.

But again, is it key?
Would a term allowing a party to change the terms at will be fine in a non-consumer context?

dls wrote:
However your description of the effect of the clause may also be too general.


Perhaps. I think it does boil down to that interpretation, though.
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Re: Fairness of term

Postby dls » Sat Jul 23, 2016 6:36 pm

Would a term allowing a party to change the terms at will be fine in a non-consumer context?


Again, such terms have been upheld many times in employment contracts. The issue boils down to the particular use.
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