The Consumer Rights Act 2015
The unfair terms in consumer contracts are considered under the Consumer Rights Act 2015 which came into force on 1st October 2015.
The Act revokes the Unfair Terms in Consumer Contracts Regulations 1999 and parts of the Unfair Contract Terms Act 1977 which relate to contracts between a business and a consumer. The provisions relate to any consumer notice or any term in a consumer contract or agreement for goods or services made between a trader and a consumer, where the trader is acting for purposes relating to his business.
The provisions apply to a consumer notice that relates to rights or obligations between a trader and a consumer or purports to exclude or restrict a trader’s liability to a consumer and it is reasonable to assume it is intended to be seen or heard by a consumer. A notice includes an announcement, whether or not in writing, and any other communication or purported communication.
A 'consumer' is defined as an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession. Contracts for the sale of land, tenancy agreements and mortgages can be caught by the provisions in situations where the trader is not a private individual and is acting in the course of business. A trader is defined as 'a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf;' This includes letting and estate agents, government departments, housing associations and local or public authorities.
Private landlords will be affected by the provisions where they are considered to be acting for purposes relating to their trade, business or profession. Whether or not they are will depend on their particular circumstances. The provisions under the Act are not clear about what will be considered such purposes. However, the Office of Fair Trading (now Competition and Markets Authority) have indicated in the past that there will be circumstances under which private landlords will not be considered to be acting for purposes relating to their trade, business or profession.
For letting agents and estate agents the management or agency agreement defining the contract between agent and client will be caught by the provisions under the Act where the client is an individual and not acting for purposes relating to their trade, business or profession. If the client is a commercial landlord, the letting agreement or lease will be subject to the Regulations when letting to private individuals but the management agreement will be exempt.