Letting your property - terms and conditions
Owner Managed and Shared Management Property
Marketing and Shared Management Terms and Conditions 2007
| 1. | ||
| 1.1 | Definitions in the contract schedule have the same meaning in these terms unless the context otherwise requires, and the masculine gender includes the feminine gender. If there is more than one party signing with the Agent, then obligations are entered into jointly and severally. | |
| 1.2 | The agency is a ‘Sole Agency’. If the Agent agrees on the contract schedule that the agency is not sole, then the Owner agrees that if he uses any other booking agent for the Property, he will procure that the other booking agent will obtain emailed, fax or hard copy confirmation from the Agent that the proposed dates are available, before the other agent proceeds with a booking of the Property during the agreed letting period. If the property is registered for Shared Management then ‘Sole Agency’ is a condition of registration and will apply at all times. | |
| 1.3 | On signing this Agreement for a first registration, the Owner shall pay to the Agent the Registration Fee. On subsequent re-registrations on or after 1 April in any year, or for multiple properties, the Agent may deduct its fees from current rental income or reserve funds from any of the Owner’s properties under its management. On re-registration, which shall be automatic if the letting period extends under 1.3 below beyond 1 April in any year, the Owner shall pay the Agent’s current re-registration and service fees from 1 April. | |
| 1.4 | The ‘agreed letting period’ is the initial letting period as set out in the contract schedule (as extended, unless the context otherwise requires) and shall continue thereafter unless and until determined by either party giving the other not less than 28 days notice of such intended determination, such notice to expire at or on any day after the end of the initial agreed letting period. | |
| 1.5 | “The Inventory” means the inventory of the Owner’s fixtures, furniture and fittings in the Property plus the stock of linen and towels. Holiday lets and short lets do not have an inventory prepared and checked for every booking, but they do have a Schedule of Contents provided in the Property, but a professionally compiled inventory will be supplied for longer term tenancy agreements. For holiday lets and short lets, “the Inventory” means the Owner’s Schedule of Contents of fixtures, furniture, and fittings in the Property plus the stock of linen and towels | |
| 1.6 | If there is any conflict between the provisions of these terms and the contents of the contract schedule, the terms of the contract schedule shall prevail. | |
| 2. | Marketing Obligation | |
| 2.1 | The Owner engages the Agent to market the Property for letting on the Owner’s behalf, and to carry out, at the Agent’s own expense without the Owner’s prior consent, such advertising promotions, printing, related mail-shots, advertising in property portals, magazines, newspapers and periodicals and telephone calls as may be necessary in the Agent’s reasonable opinion to market the Property. The Agent has complete discretion as to through which of its divisions the Property is to be marketed for letting. | |
| 2.2 | The Agent has exclusive control over what information is put on its website about the Property. Unless otherwise agreed in writing, copyright and other intellectual property rights in all design and infrastructure works undertaken by or for the Agent in relation to its website and/or any advertising remain the Agent’s property. For the avoidance of doubt, copyright and other intellectual property rights in all meta-tags, driver pages, designs, images, text and coding utilised in the preparation of the Agent’s website, remain vested in the Agent. The Owner accepts that no reproduction of any of these by any means is permitted, or adapting the whole or any part of the Agent’s website for any purpose, and the Owner undertakes not to breach such copyright. Copyright in images and text provided by the Owner, will stay with the Owner in its original state only. | |
| 3. | The Agent's Obligations - Marketing and Letting as Agent for the Owner | |
| 3.1 | The Agent has continuing authority to negotiate the letting of the Property on the Owner’s behalf, and to negotiate and conclude letting agreements on the Owner’s behalf without previous notification to him, which the Owner will honour. The Agent will pay to the Owner the balance of the rental income (less a retention of a reserve fund of up to 4 weeks rental, to cover breach of contract by the Owner to the tenant, or by the Owner to the Agent, for payment of contractor’s minor services for the Property and any other payment for which the Owner is liable), after the deduction of the Agent’s fees, three weeks prior to commencement of the letting, provided always that if rent is paid late and has not cleared the Agent’s bank account before three weeks prior to commencement of the letting, then the relevant sum shall be paid to the Owner as soon as possible after the Agent receives it. In some cases of longer periods of rental, the payment may be made in instalments. If this is the case, then the Owner will be notified beforehand, when to expect the various amounts. | |
| 3.2 | It will use all reasonable endeavours to arrange lettings of the Property throughout the agreed letting period, but for the avoidance of doubt the Agent does not guarantee either that any lettings of the Property will be made, or that a particular tenant will be suitable in all respects. If the Agent fails to secure a reasonable occupancy level during the agreed letting period, the Owner has the right to give not less than 30 days’ notice in writing to the Agent of cancellation of this contract, provided that (a) the Owner will honour all forward bookings negotiated by the Agent (b) the Owner will on cancellation pay the Agent half its fees for the forward bookings already negotiated and any arrears of Agent’s fees unpaid and (c) the Agent’s registration fee or re-registration fee is not refundable. | |
| 3.3 | It will supply the Owner with full details of all income received by the Agent regarding the Property, and any fees and expenses paid out from such income or from money provided by the Owner. | |
| 3.4 | It will ensure that the rent quoted to proposing tenants is no less than the Published Rental Rate PROVIDED THAT the Agent always has a discretion to let at a discounted rate if deemed necessary, and has continuing authority to change the rent payable by a tenant of the Property during the term of a letting, at the Agent’s discretion. | |
| 3.5 | It will communicate to the Owner in writing as soon as reasonably possible all confirmed lettings of the Property | |
| 3.6 | It will collect all rent and other receipts for the Property from the tenant provided that the Agent shall not be liable to the Owner in respect of any cancellations, non-payment or other defaults by the tenant. All rent generated during the letting period, through lettings organised by the Agent, shall be receivable by and payable to the Agent by the tenant. | |
| 3.7 | It will make all lettings of the Property by the Agent on the Agent’s relevant tenant booking contract unless otherwise previously specifically agreed with the Owner. | |
| 3.8 | It will notify the Owner, as soon as reasonably possible, of any complaint made by the Tenant that is made direct to the Agent about the Property. | |
| 3.9 | It will make regular inspections, arranged with the Owner, in order to check that the agreed standards are being maintained at the Property by the Owner | |
| 3.10 | It will ensure that all tenants of the Property pay the Agent a security deposit at a level decided by the Agent which is to be held by the Agent or with the Deposit Protection Service if applicable, until such time as the Property has been inspected on the Tenant’s departure by the Owner or his representative (which may be the Agent) who will have given a report to indicate that the amount may be refunded either in full, in part or not at all. If the Agent receives no communication to the contrary from the Owner or his representative within 6 days of the Tenant’s departure, the Agent is authorised to refund the security deposit in full to the Tenant without further obligation. | |
| 3.11 | On Shared Managed Properties, the Agent will provide the linen and towels, and therefore has the cost of gearing up this stock before achieving a booking, and therefore before receiving any fees from the Owner. The Owner will pay the Agent immediately the Linen and towels fee that hires the relevant amount of linen and towels stock to be used by tenants in the Property, but does not give the Owner ownership of this, merely its hire for use during the agreed letting period. | |
| 3.12 | At the end of this contract, the Agent will account to the Owner without interest for any money owing to him by the Agent, and vice versa | |
| 3.13 | Where the Property is a Shared Managed Property, the obligations in clauses 4.12 – 4.15 shall be the Agent’s responsibility. Where the Property is an Owner-Managed Property, these clauses shall be the Owner’s responsibility. Whether it is a Shared Managed or Owner Managed Property is indicated on the contract schedule. | |
| 4. | Owner's Obligations The owner shall:- | |
| 4.1 | make the Property available to the Agent for letting by the Agent on the Owner’s behalf for the agreed letting period. | |
| 4.2 | ensure that the Property is available for letting at all times during the agreed letting period or to inform the Agent with as much notice as possible of all times when the Property will not be available during the agreed letting period. Such notice (other than in case of emergency) will not be less than 12 weeks. The total number of weeks non-availability during the agreed letting period will not exceed the number set out on the contract schedule. The Owner will honour all confirmed forward bookings and the Owner is liable for any increased rent payable by the tenant for suitable (in the Agent’s reasonable judgement) alternative accommodation (even a hotel, if deemed necessary), if the Owner is in breach of this and it is necessary to move a confirmed booking. In the case of a Shared Managed Property, if the Owner takes it out of rental availability for his own use, he will pay the Agent its current Preparation Fee for the beginning of such rental unavailability and its current Vacation Fee at the end. | |
| 4.3 | comply with all obligations that may be laid down in any freehold, leasehold or mortgage of the Property; to disclose to the Agent in writing before a letting starts, any particular obligations which a tenant must observe in relation to the Property or its occupation; to indemnify the Agent against all claims or liabilities (if any) arising as the result of a breach by the Owner of these obligations; and to make to the relevant tax authorities full declarations of all rental income received or receivable from the Property. It is the Owner’s responsibility to notify the Agent in writing if he/it is registered for VAT in connection with the Property. The rents agreed with tenants in tenancy agreements are VAT inclusive, so if an Owner is registered for VAT, the Agent will need to supply a VAT invoice to the tenant on behalf of the Owner. The Owner will account to the tax authorities for the VAT. | |
| 4.4 | maintain and keep the Property, its facilities and the Inventory in good condition, such condition to be determined by the standards laid down from time to time by the Agent. The Owner is responsible for the cost of such repairs or maintenance as may be necessary to ensure that the Property continues to meet these standards. Failure to comply with all this, authorises the Agent to move the tenant to suitable (in the Agent’s reasonable judgement) alternative accommodation, (even a hotel if deemed necessary), or at the Agent’s discretion to compensate the tenant for the breach, without obtaining the Owner’s prior written consent. The Owner is liable for any increased rent payable for suitable alternative accommodation. | |
| 4.5 | keep the Property fully and properly equipped in accordance with the Agent’s recommended inventory, a copy of which has been supplied to the Owner. | |
| 4.6 | read and to abide by all relevant regulations given in the English Tourism Council’s “Pink Booklet”, a copy of which is available via Visit Britain, Tel: 0208 563 3151 or can be purchased from the Agent on request. To comply with the Furniture and Furnishings (Fire Safety) Regulations 1988 and to indemnify the Agent against all claims or liabilities (if any) arising as the result of a breach of such Regulations. | |
| 4.7 | keep both the Property and the Inventory properly insured with a reputable insurance company against all usual risks, including Public Liability. | |
| 4.8 | ensure that the Property is kept safe, that floors are not slippery, that passageways are kept clear, that cables are tucked away and that fitted furniture and wall fittings are secure. | |
| 4.9 | before any tenancy starts, provide at Owner’s expense, a fire blanket within the kitchen area between the oven and the door, to provide sustainable fire extinguishers for the Property and to have them regularly checked. To ensure at Owner’s expense that smoke alarms are fitted and in good working order. To provide at Owner’s expense, carbon monoxide monitors if the Property has oil or gas supply, or an open fireplace. To ensure that tenants are acquainted with emergency procedures. | |
| 4.10 | pay all taxes, rents, rates, electricity, gas, water, drainage, television licence, telephone charges and other expenses in respect of the Property. Failure to comply with this will automatically authorise the Agent to compensate the Tenant for the Owner’s breach, at the Agent’s discretion, or to make any payments out of the reserve fund to any suppliers for this purpose without obtaining the Owner’s prior written consent. To ensure that the Agent always has an up to date photocopy of the Owner’s annual Gas Appliance and Electrical Appliance PATS testing and TV licence forwarded to it. An up to date copy of the TV licence must also be made available for display in the Property at all times. | |
| 4.11 | warrant (a) that he owns the Property and, if requested, will promptly provide written confirmation of this by copy Land Registry entries or a letter to the Agent from his solicitor confirming ownership, (b) that he has the right to let the Property, unhindered by any third party (including lenders and landlords), from letting the Property (c) that his principal place of residence is not at the Property and will not be at any point during the agreed letting period and (d) that any electrical and gas equipment in the Property has been recently tested by a qualified person in accordance with best practice, and that the equipment meets best practice standards. | |
| 4.12 | ensure that the Property is properly cleaned and serviced between and during lets. The standards for this clean and service must meet those set by the Agent at the same time the Property was taken on by the Agent. | |
| 4.13 | ensure that the sleeping accommodation for tenants is prepared correctly in accordance with the tenant’s booking confirmation instructions and that sufficient linen and towels are supplied to enable tenants to have fresh linen and towels on a weekly basis. | |
| 4.14 | provide a welcome (start-up) pack at the start of each booking which complies with the requirements given by the Agent at the time the Property was taken on by the Agent. | |
| 4.15 | meet and greet tenants at commencement of stay, and to provide them with suitable departure instructions. | |
| 4.16 | provide a detailed Inventory (professionally compiled) for each letting at the start of stay, where a letting is not a holiday let or short let. | |
| 4.17 | provide a detailed schedule of contents on the signing of this contract | |
| 4.18 | provide confirmation in writing (email) to the agent of any charges levied for damages to the property. This to be provided within 6 days of departure. Failure to agree charges between the owner and the Tenant will result in the agent on behalf of both parties. The agents decision will be final. | |
| 5. | General | |
| 5.1 | The Property and Inventory or Schedule of Contents, remain at all times the Owner’s responsibility. The Agent accepts no responsibility for any damage to the Property or to the Inventory or Schedule of Contents, by the tenant or third parties. | |
| 5.2 | If the Owner is a consumer, (as defined in S.3 of the Consumer Protection (Distance Selling) Regulations 2000), he has the right, in addition to his other rights, to cancel this agreement by notice to the Agent within 7 working days of conclusion of this contract, unless performance of the services to the Owner by the Agent starts earlier with the Owner’s agreement, which is deemed to be given | |
| 5.3 | If the Agent underpays the Owner, then it shall take all reasonable steps as soon as reasonably possible to remit the balance to the Owner. If the Agent overpays the Owner, then the Owner will take all reasonable steps as soon as reasonably possible to remit the balance to the Agent, who may also deduct such overpayment from current rent receipts or from any reserve fund. | |
| 5.4 | If there is an evident typing error on the contract schedule or on the Agent’s website, then the parties will use best endeavours in good faith to rectify the error in relation to this contract. | |
| 5.5 | If a tenant fails to take up a letting, or leaves the Property earlier than contracted for, the Agent will endeavour to re-let the Property (if convenient) at the Owner’s expense and to the extent that the Agent does re-let, will make an allowance to the tenant (less the Agent’s reasonable administration costs) so that the Owner is not paid twice for the same period | |
| 5.6 | On Shared Managed Properties, the Agent has continuing authority to negotiate with contractors for minor works costing not more than £250 + VAT a time, and to negotiate and conclude such contracts (on behalf of the Owner, without previous notification to him, consent being deemed to be given), as seen by the Agent to be reasonably necessary to maintain the Property, its Inventory and facilities up to standard Provided that if the Agent has exercised reasonable skill and care about the recommendation of such contractors, the Agent is not responsible in that capacity to the Landlord if the contractor’s works, or materials supplied, prove to be not of satisfactory quality. The Owner will pay the contractor immediately and indemnify the Agent against all (if any) liability it may have to the contractor. The contractor may be one of the divisions of the Agent and will be liable in its contractor capacity to the Owner for its own work and materials. | |
| 5.7 | The Agent may make recommendations for refurbishment of the Property, and on behalf of the Owner, with the Owner’s prior specific consent, may negotiate with contractors for refurbishment of e.g. replacement kitchens and bathrooms, garden design etc, and to negotiate and conclude such contracts on behalf of the Owner Provided that if the Agent has exercised reasonable skill and care about the recommendation of such contractors, the Agent is not responsible in that capacity to the Landlord, if the contractor’s works, or materials supplied, prove to be not of satisfactory quality. The Owner will pay the contractor immediately and indemnify the Agent against all (if any) liability it may have to the contractor. The contractor may be one of the divisions of the Agent, and will be liable in its contractor capacity to the Owner for its own work and materials | |
| 5.8 | The Agent may on behalf of the Owner, with the Owner’s prior consent, purchase furniture, fittings and utensils for the Property and the Owner will promptly reimburse the Agent for the actual cost to the Agent + 5% + VAT. The Agent may charge the Owner for its time at an agreed fee structure Provided that if the Agent has exercised reasonable skill and care about the selection and purchase of such furniture, fittings and utensils, the Agent is not responsible in that capacity to the Landlord, if any item proves to be not of satisfactory quality. | |
| 5.9 | The Owner shall compensate the Agent on an indemnity basis against all claims, actions, proceedings, losses, liabilities, damages, costs, and expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by the Agent in consequences of the Owner’s breach or non-observance of any of his obligations to the Agent, and in respect of any such losses arising out of any legal action taken or threatened as a result of any infringement of copyright or other material supplied, prepared or approved by the Owner. This obligation remains in force even after the contract ends. | |
| 6. | Limitation of Liability | |
| 6.1 | Except as may be implied by law where the Owner is dealing as a consumer, (as defined in S.12 of the Unfair Contract Terms Act 1977) if the Agent breaches this contract, the Owner’s remedies shall be limited to compensation, but the Agent shall under no circumstances be liable for any indirect, incidental or consequential loss or damage whatever. Nothing in this contract shall exclude or limit the Agent’s liability for death or personal injury resulting from the negligence of the Agent or that of its agents or employees. | |
| 7. | Waiver and termination | |
| 7.1 | No waiver by the Agent (whether express or implied) in enforcing any of its rights under this contract shall prejudice its rights to do so in the future. | |
| 7.2 | Without prejudice to the Agent’s other rights and remedies under this Agreement, it shall be entitled to suspend its services and/or terminate this Agreement forthwith
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| 8. | Force Majeure | |
| 8.1 | The Agent shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, and it shall be entitled to a reasonable extension of its obligations. | |
| 9. | Severance | |
| 9.1 | If any term or provision of this contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of these provisions shall continue in full force and effect as if this contract had been agreed with the invalid illegal or unenforceable provision deleted. | |
| 10. | Notices | |
| 10.1 | All notices and notifications shall be in writing sent to the other’s address on the front sheet or such other address as shall be notified to the other party in writing. | |
| 10.2 | Notices and notifications may be sent by hand delivery, by pre-paid first class post (airmail post for non UK addresses), by fax, or by E-Mail 10.2.1 - Notices will deemed to have been given:- | |
| 11. | Dispute Resolution | |
| 11.1 | In the event of any dispute arising between the parties in connection with this agreement which cannot be settled by negotiation, the parties will in good faith, seek to resolve that dispute through mediation under the auspices of the ADR Group of Grove House, Grove Road, Redland, Bristol BS6 6UN before resorting to expert determination. If the dispute is not resolved by mediation within 30 days, (or if one of the parties will not participate in the mediation), the dispute shall be referred to expert determination by a chartered surveyor of not less than ten years standing, appointed by the parties jointly, or in default of agreement by the President for the time being of the Royal Institution of Chartered Surveyors of England and Wales on the application of any party. The costs of the expert determination shall be as directed by the expert. The jurisdiction and law applicable to this contract is that of England and Wales. | |
| 12. | Limited Companies | |
| 12.1 | When accepting instructions to act on behalf of a limited company Owner, the Agent requires the Owner’s Directors and/or controlling shareholders to sign personal guarantees in respect of the Agent’s charges and expenses. All the signatories to the front sheet jointly and severally personally guarantee payment of the Agent’s fees on demand as co-principals and not merely as sureties. | |
| 13. | Data Protection Act 1998 | |
| 13.1 | The Owner’s particulars are held on the Agent’s database. The Agent may, from time to time, use these details to send the Owner information which it considers might be of interest to the Owner. The Owner may under S 11 of the Act serve a notice on the Agent at any time requiring the Agent not to use the Owner’s personal data for marketing purposes. | |
| 14. | Proceeds of Crime Act 2003 | |
| 14.1 | The Agent is legally obliged to disclose to the National Criminal Intelligence Service, the Police, Inland Revenue, Customs & Excise, and the Benefits Agency, any instances of fraud, tax evasion or other crime which comes to its attention. This legal obligation overrides any duties of confidentiality (if any) of the Agent to the Owner. | |
| 15 | Rights of Third Parties | |
| 15.1 | A person who is not a party to this contract will not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999. | |
| 16. | Identification | |
| 16.1 | The Agent is required by law to identify its clients and to retain evidence of that identification. The Owner agrees to send to the Agent originals of one item from List A and one item from List B, shown at the Schedule to these terms. The Agent needs to have these documents as soon as possible, as it cannot continue working for the Owner until it has obtained satisfactory identity confirmation. | |
| Alternatively, if the Owner cannot get into the Agent’s office and is concerned about posting original documents, the Owner can ask a local lawyer, notary, accountant, bank manager, independent financial adviser or doctor to photocopy and certify them before the certified copies are posted to the Agent. If the Owner decides to do this, please make sure that the person certifying the copies uses the wording set out at the bottom of the Schedule. The person certifying may make a charge for this, so it is always worth enquiring first. |