Terms & Conditions - Letting

Terms and Conditions of Business for Letting Only Service
of Landlord Direct trading name of Hutchings & Butlin Ltd

1 DEFINITIONS

The following expressions shall have the following meanings:
1.1 "Agent" means Landlord Direct of 34 Musters Road, West Bridgford, NG2 7PL;
1.2 "Landlord" means any person who purchases Services from the Agent;
1.3 "Application Form" means a proposal, registration form, quotation or other similar object describing the agency Services;
1.4 "Services" means the agency services as described in the Application Form;
1.5 "Property" means the property which belongs to the Landlord and is to be let to the Tenant;
1.6 "Tenant" means the person contracted to rent the Property;
1.7 "Tenancy" means the period for which the Tenant is contracted to rent the Property;
1.8 "Fees" means the agency commission due to the Agent from the Landlord for providing the Services;
1.9 "Deposit" sum of money retained by the Agent from the Tenant to cover any dilapidations;
1.10 "Terms and Conditions" means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Agent;
1.11 "Agreement" means the contract between the Agent and the Landlord for the provision of the Services incorporating these Terms and Conditions;
1.12 "Mediator" is the party nominated to resolve a dispute between the Agent and the Landlord.

2 GENERAL

2.1 These Terms and Conditions shall apply to the Agreement for the supply of Services by the Agent to the Landlord and shall supersede any other documentation or communication between parties.
2.2 Any variation to these Terms and Conditions must be agreed in writing by the Agent.
2.3 These Terms and Conditions shall be attached to any Application Form and signed and returned to the Agent by the Landlord.
2.4 Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Agent may be entitled in relation to the Services, by virtue of any statute, law or regulation.

3 APPLICATION FORM

3.1 The Application Form is available here.
3.2 The Application Form shall remain valid for acceptance for a period of 56 Days.
3.3 The Application Form must be accepted by the Landlord in its entirety.
3.4 The Agreement between the Agent and the Landlord, incorporating these Terms and Conditions, shall only come into force when the Agent confirms acceptance in writing to the Landlord.

4 SERVICES

4.1 The Services are as described in the Application Form.
4.2 Any variation to the Services must be agreed by the Agent in writing.
4.3 The Services shall commence and finish on the dates specified on the Application Form unless terminated according to the terms of this Agreement.
4.4 Dates given for the commencement of the Services are estimates only and not guaranteed. Time for commencement shall not be of the essence of the Agreement and the Agent shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the Services.

5 PRICE AND PAYMENT OF FEES

5.1 The price for Services is as specified in the Application Form and is inclusive of VAT and any other charges as outlined in that document.
5.2 The terms for payment are as specified in the Application Form.
5.3 The Agent shall deduct the Fees and any other expenses incurred by the Agent on behalf of the Landlord prior to making over any payments of rent in terms of the Tenancy.
5.4 Where there are sums due to the Agent that have not been deducted in terms of Condition 5.3 the Landlord must settle all payments for Services within 28 days from the invoice date.
5.5 The Landlord will pay interest on all late payments at a rate of 1% per annum above the base lending rate of Lloyds TSB.
5.6 The Agent is also entitled to recover all reasonable expenses incurred in obtaining payment from the Landlord where any payment due to the Agent is late.
5.7 The Landlord is not entitled to withhold any monies due to the Agent.
5.8 The Agent is entitled to vary the price to take account of:
5.8.1 any additional Services requested by the Landlord which were not included in the original Application Form;
5.8.2 any reasonable increase in hourly, daily or set rates, if applicable;
and any variation must be intimated to the Landlord in writing by the Agent.
5.9 In the event that the Landlord seeks to cancel the Agreement for Services the Landlord shall be responsible to pay the Agent a cancellation fee equal to the advertising and set up costs and viewing costs actually carried out on the Landlord’s behalf at £75 plus vat.

6 TENANCY AGREEMENT

Unless otherwise instructed by the Landlord, the Agent shall provide a standard tenancy agreement for the Tenancy and the Landlord shall meet the fees for drawing up this document as stipulated in the Application Form. Should the Landlord wish to instruct their own solicitor to provide a Tenancy Agreement they shall be liable to meet the expenses incurred in this respect.

7 LANDLORD OBLIGATIONS

7.1 The Landlord agrees to co-operate with the Agent as may be required.
7.2 If appropriate, the Landlord agrees to obtain permission from his/her mortgage company to let the Property.
7.3 The Landlord agrees to notify his/her insurance company of their intention to let the Property.
7.4 The Landlord shall remain responsible for the security and well-being of the Property during vacant periods.
7.5 The Landlord undertakes to take all necessary steps to ensure compliance with the relevant statutory undertakings.
7.6 The Landlord shall not have any utility services disconnected prior to the start of the Tenancy.
7.7 The Landlord must provide the Agent with a comprehensive inventory listing the contents and condition of the Property or meet the costs of the Agent preparing such a document.
7.8 The Landlord shall give written proof to the Agent of their nominated scheme under the Tenancy Deposit Scheme.

8 AGENT OBLIGATIONS

8.1 The Agent shall supply the Services as specified in the Application Form.
8.2 The Agent shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice and statutory obligations.
8.3 The Agent shall take all reasonable steps to ensure the suitability of Tenants, including obtaining appropriate references and evidence of identification and employment if applicable, but does not accept any responsibility for the ultimate conduct of any Tenant.
8.4 The Agent shall collect rent for the first month of the Tenancy but cannot be held liable for non-payment or late payment of this or any subsequent rental payment and the Landlord is advised to hold adequate insurance policies to cover such situations should they arise.
8.5 The Agent shall instruct the new tenant / s to pay a Deposit of one month’s rent plus £100 directly to the Landlord prior to the commencement of the Tenancy which shall be deposited with the Landlord’s chosen Tenancy Deposit Protection Scheme if appropriate or handed over to the Landlord depending on the type of scheme chosen and operated by the Landlord.
8.6 In the event that the Landlord disputes any dilapidations with the Tenant the Landlord must engage in negotiations or legal action independently of the Agent and meet the cost of any such action.
8.7 The Agent shall serve all appropriate statutory notices relevant to the commencement of the Tenancy but shall not have any responsibility for any further statutory notices required throughout the remainder of the Tenancy.

9 PROPERTY MIS-DESCRIPTIONS ACT 1991

It is the Landlords responsibility to check the descriptions of the Property in the schedule provided by the Agent, on the website and on other relevant marketing material and notify the Agent of any amendments required. The Landlord shall indemnify the Agent and any other associated parties against any claim made in respect of any mis-description that arises out of the Landlords failure to adhere to this condition.

10 PURCHASE OF PROPERTY BY TENANT

In the event that the Tenant, or any third party connected with the Tenant, or any party introduced by the Agent, purchases the Property as a direct result of the Agents brokerage of the deal the Landlord shall pay a commission of N/A% of the sales price to the Agent.

11 TERMINATION

11.1 Should the Landlord wish to terminate this Agreement the Landlord is required to give the Agent 1 Weeks written notice of the termination.
11.2 The Agent is required to give the Landlord 1 Weeks written notice to terminate this Agreement.
11.3 The Landlord may terminate the Agreement if the Agent fails to comply with any aspect of these Terms and Conditions and this failure continues for a period of 1 Week after notification of non-compliance is given.
11.4 The Agent may terminate the Agreement if the Landlord has failed to make over any payment due within 2 Weeks of the sum being requested.
11.5 Either party may terminate the Agreement by notice in writing to the other if:
11.5.1 the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
11.5.2 the other party commits a material breach of these Terms and Conditions which cannot be remedied under any circumstances; or
11.5.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
11.5.4 the other party ceases to carry on its business or substantially the whole of its business; or
11.5.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
11.6 In the event of termination the Landlord must make over to the Agent any payment for work done and expenses incurred up to the date of termination.
11.7 Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.

12 MEDIATION

12.1 Any dispute arising under this Agreement will be referred to and decided by the Mediator.
12.2 The Mediator will be appointed by application to National Approved Letting Scheme.
12.3 A party wishing to refer a dispute to the Mediator shall advise the other party of this intention in writing at any time during the term of this Agreement. The dispute must then be referred to the Mediator within seven (7) days of this intention being intimated.
12.4 The Mediator shall act impartially and be free to take the initiative in ascertaining the facts and the law. The Mediator must reach a decision within twenty eight (28) days of referral or such longer period as the parties may agree.
12.5 During the period of mediation both parties must continue with their obligations as stated in this Agreement.
12.6 The decision of the Mediator is binding on both parties unless and until revised by legal proceedings or agreement by both parties.

13 WARRANTY

Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.

14 LIMITATION OF LIABILITY

Nothing in these Terms and Conditions shall exclude or limit the liability of the Agent for death or personal injury, however the Agent shall not be liable for any direct loss or damage suffered by the Landlord or any third party howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Agent in the insurance year in which the Landlord’s claim is first notified.

15 INDEMNITY

The Landlord shall indemnify the Agent against all claims, costs and expenses which the Agent may incur and which arise directly or indirectly from the Landlord’s breach of any of its obligations under these Terms and Conditions.

16 FORCE MAJEURE

Neither party shall 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, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.

17 ASSIGNMENT

The Landlord shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Agent.

18 THIRD PARTY RIGHTS

Nothing in these Terms and Conditions intend to or confer any rights on a third party.

19 SEVERANCE

If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

20 WAIVER

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.

21 NOTICES

Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Application Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

22 ENTIRE AGREEMENT

These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.

23 GOVERNING LAW

These Terms and Conditions shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.

ADDITIONAL/SPECIAL TERMS:

Customer Complaints Procedure

As a member of The Approved Letting Scheme, Landlord Direct trading name of Hutchings & Butlin Ltd aims to provide the highest standards of service to all landlords and tenants, but to ensure that your interests are safeguarded, we offer the following:

-In the unlikely event that you have a grievance, please write in the first instance to:
Mrs Susan McKenzie at the address below:
Hutchings & Butlin Ltd
34 Musters Road
West Bridgford
Nottingham
NG2 7PL

The grievance will be acknowledged immediately, investigated thoroughly in accordance with established 'in-house' procedure’s and a reply sent to the complainant within seven working days of receipt of the letter.
If the complainant is dissatisfied with the result of the internal investigation, please write to Mr. Mark Hutchings Director of Hutchings & Butlin Ltd, at the same office address.
If the complainant still is not satisfied that their complaint has been resolved, Hutchings & Butlin Ltd offers mediation between the complainant and the company.
If the complainant landlord remains dissatisfied, Hutchings & Butlin Ltd will provide a referral to binding arbitration in accordance with the rules of the NALS Arbitration Scheme.

Nals safeguards to landlords

Hutchings & Butlin Ltd hold the following:
Professional Indemnity Insurance - Limited to £500,000 per claim.
Client Money Protection Insurance Cover
Tenant Deposit Scheme
Customer Complaints Procedure

The Tenancy Deposit Scheme Agent Membership:

The Agent is a member of the Tenancy Deposit Scheme, which is administered by:

Tenancy Deposit Scheme
PO Box 1255
Hemel Hempstead
Herts HP1 9GN
phone 0845 226 7837
web www.tds.gb.com
email deposits@tds.gb.com
fax 01442 253193

Definitions:

• Agent – Hutchings & Butlin Ltd whose details are given at the start of this agreement
• Deposit - this is the deposit sum set out in the main details and definitions section of this agreement, above
• TDS - this is the Tenancy Deposit Scheme, one of the three schemes approved by the government under the provisions of the Housing Act 2004, to hold tenancy deposits
• ICE/Independent Case Examiner - this is the person who will adjudicate should there be a dispute regarding the refund of the deposit, which is referred to arbitration (described below)
• Stakeholder - where an agent holds the Tenant Deposit as Stakeholder (as in this agreement), this means that deductions can only be made from the deposit
• with the consent of both the Landlord (us) and the Tenant (you), or
• with the overriding consent of the court, or
• by virtue of an adjudication decision from TDS or ICE

Clauses marked C1.1 to C4.2 Below for inclusion in terms of business (for agents)

C1.1 If we are/ the Agent is instructed by you/the Landlord to hold the Deposit, we/ the Agent shall do so under the terms of the Tenancy Deposit Scheme.
C1.2 The Agent holds tenancy deposits as Stakeholder (if not already specified with the Tenancy Agreement).

C2 At the end of the tenancy covered by the Tenancy Deposit Scheme

C2.1 If there is no dispute we/the Agent will keep any amounts agreed as deductions where expenditure has been incurred on behalf of the Landlord, or repay the whole or the balance of the Deposit according to the conditions of the Tenancy Agreement with the Landlord and the Tenant. Payment of the Deposit will be made within 10 working days of written consent from both parties.
C2.2 If, after 10 working days* following notification of a dispute to the Agent/Member and reasonable attempts having been made in that time to resolve any differences of opinion, there remains an unresolved dispute between the Landlord and the Tenant over the allocation of the Deposit it will be submitted to the ICE for adjudication . All parties agree to co-operate with any adjudication.
C2.3 The statutory rights of either you/the Landlord or the Tenant(s) to take legal action against the other party remain unaffected.
C2.4 It is not compulsory for the parties to refer the dispute to the ICE for adjudication. The parties may, if either party chooses to do so, seek the decision of the Court. However, this process may take longer and may incur further costs. Because it is a condition of the Tenancy Agreement signed by both parties, judges may refer the dispute back to the ICE for adjudication. If the parties do agree that the dispute should be resolved by the ICE, they must accept the decision of the ICE as final and binding.
C2.5 If there is a dispute I/we must remit to The Dispute Service Ltd the full deposit, less any amounts already agreed by the parties and paid over to them. This must be done within 10 working days of being told that a dispute has been registered whether or not you or I/we want to contest it. Failure to do so will not delay the adjudication but The Dispute Service Ltd will take appropriate action to recover the deposit and discipline me/us.
* These time scales can be changed by agreement with the tenant in individual cases or by the contract used as standard by the agent.
C2.6 The Agent/we must co-operate with the ICE in the adjudication of the dispute and follow any recommendations concerning the method of the resolution of the dispute.
C2.7 Dealing with disputes from non-ASTs: The Independent Case Examiner (ICE) may agree to resolve any disputes over the allocation of these deposits, by arrangement. If he does:

• The ICE will propose what he considers the most effective method of resolving the dispute.
• Landlord, tenant and agent must consent in writing to his proposal.
• Disputes will be subject to a fee of £500 + VAT, or 10% of the deposit + VAT, whichever is the greater.
• The resolution process will not start until the parties’ consent, the disputed amount and the fee have been submitted.

C3 Incorrect information

The Landlord warrants that all the information he has provided to the Agent is correct to the best of his knowledge and belief. In the event that the Landlord provides incorrect information to the Agent which causes the Agent to suffer loss or causes legal proceedings to be taken the landlord agrees to reimburse and compensate the Agent for all losses suffered.

C4 The following clauses only apply if the agent allows the landlord to hold the deposit outside TDS

C4.1 If you/the Landlord decide(s) to hold the Deposit yourself in relation to an Assured Shorthold Tenancy, we will transfer it to you within 5 days of receiving it. You/the Landlord must then register it with another Tenancy Deposit Protection Scheme within a further 25 days if the Tenancy is an Assured Shorthold Tenancy. If you fail to do so the Tenant can take legal action against you/the Landlord in the County Court. The Court can make an order stating that you/the Landlord must pay the Deposit back to the Tenant or lodge it with the custodial scheme which is known as the Deposit Protection Service. In addition a further order will be made requiring you/the Landlord to pay compensation to the Tenant of between one and three times the amount of the Deposit.
If a landlord fails to meet the initial requirement to protect the deposit, no Section 21 Notice can be served until either the landlord returns the deposit to the tenant in full or with such deductions as the tenant agrees; or if the tenant has taken proceedings against the landlord for non-protection and those proceedings have been concluded, withdrawn or settled (for example, by the court awarding damages being the return of the deposit or a fine not more than three times the value of the deposit).
If a landlord fails to serve Prescribed Information, (s)he cannot serve a Section 21 Notice until the Prescribed Information has been served - but this can be more than 30 days after receiving the deposit. This will not prevent a tenant from issuing proceedings for late provision of the prescribed information and seeking a penalty award.
Tenants can make an application to a county court for a penalty award even where the tenancy has ended, and can do so for up to six years.
We have/the Agent has no liability for any loss suffered if you/ the Landlord fail to comply.

OR

C4.2 If you/the Landlord decide(s) to hold the Deposit and the Tenancy is an Assured Shorthold Tenancy you/the Landlord must specify to us/the Agent prior to the start of the Tenancy under which other Tenancy Deposit Protection Scheme the Deposit will be covered. If the Deposit is covered by Tenancy Deposit Solutions you/the Landlord must provide proof of membership, together with a copy of the insurance policy before the Deposit can be released. If the Deposit is to be sent to the custodial scheme known as the Deposit Protection Service (DPS) we/the Agent will forward the Deposit to the DPS and register the details of the Tenancy on your behalf OR give you a cheque for the amount of the Deposit made payable to the DPS for you to forward within 25 days.