UK based holiday cottage: owner’s refusal of refund or any reconciliation

[dancingqueen1978]

Hi,
I posted on another thread and today discovered this legal thread. I wondered if someone legal could advise me!

Background: holiday cottage booked in Cornwall for week of 10-17 April. Holiday cottage owner refusing any form of refund or credit.

He says we should cancel. Our argument is that the gov has told holiday accommodation providers to close and therefore property is unavailable. www.gov.uk/guidance/covid-19-advice-for-accommodation-providers Following the Coronavirus Bill I believe this is now law?

He wants us to cancel the booking so he can then re-market and give us any “rent” he gets for the period we booked for. We don’t think he can do that as property unavailable and we’re concerned that he wants us to cancel so he can operate the cancellation provisions under terms and conditions, ie no refund.

Relations have deteriorated very badly - he is very unreasonable and keeps encouraging us to just take the holiday... in Cornwall.

Legal argument: I think we are going to have to go down court route. We’re not cancelling. - property unavailable.

Wondering whether should hold him to his terms and conditions or whether argue for frustration of contract?

Terms and conditions: these state “ If the house is not available or has become wholly unsuitable for holiday letting due to reasons beyond the Owner’s control the Owner’s/Agent’s liability shall be limited to a refund of the rent paid in respect of the period of unavailability” - that to me shows he has liability?

Terms go on to say: “ If, for reasons beyond its control, the Owner/Agent has to cancel or alter arrangements made for the Hirer, every effort will be made to offer an alternative property if one is available. If this is not possible, or the Hirer does not accept the alternative offered, the Owner/Agent will return to the Hirer any monies paid in respect of the period of unavailability, whereupon the Owner's/Agent's liability will cease.”

But is this all written off by this clause, which I think is the force majeure one: “ The Owner/Agent shall not be responsible for other matters beyond its control such as noise or nuisance from neighbours or local events, disruption to utility services or the closure of shops or amenities.”? But then maybe there’s an argument that this applies to local events only, not pandemics!

I think the way forward is small claims court but want to make case strong as possible. Are there any contract law solicitors on here? Many thanks!

Btw credit company won’t pay up as say it’s not consumer rights. And travel insurer won’t speak to us as only dealing with urgent cases. Thank you in advance

The contract is frustrated.

It is indeed frustrated which means you are entitled to your money back.

I agree the contract is frustrated.

How does one persuade them of that though?

We've got a holiday cottage booked for May half term. The letting company says on their website that the only thing they'll do is transfer the booking to another date.

@MinnieMountain holiday lets have been ordered by gov to close. This will be reviewed mid-April. If closures still in force for May then you may be able to argue your property is unavailable. What do your terms and conditions say about unavailability? Ours say:

If, for reasons beyond its control, the Owner/Agent has to cancel or alter arrangements made for the Hirer, every effort will be made to offer an alternative property if one is available. If this is not possible, or the Hirer does not accept the alternative offered, the Owner/Agent will return to the Hirer any monies paid in respect of the period of unavailability, whereupon the Owner's/Agent's liability will cease“

This is what I am going to rely on. I believe we are due a full refund. He won’t offer us anything and is even holding a £500 damage deposit of ours. I think we’ll have to take him to court.

Legally I think we have a good case - that clause seems pretty clear cut. Morally I think he should be more reasonable and offer us something. I am also disgusted with his stance on actively encouraging us and persuading us to carry on with our holiday, in Cornwall, with flagrant disregard for health and gov advice (now law). He’s clearly only interested in profit and thinks he’s above the law.

Our agent has offered rebooking for next year, rebooking later in the year or a refund. Not entirely sure of which dates but definitely for April.

I suspect May will be added too.

Thanks OP. I've realised they're just trying to get people to rebook rather than mentioning the clause that allows a refund.

It says "In the unlikely event that the property is unavailable due to reasons outside the control of the property owner, you will be offered an alternative, if that is not possible you will be given a full refund of all monies paid."

So if the lockdown is still in place then, the property is unavailable.

That’s what we’re trying to argue. It’s definitely worth a shot but you may need to hold your nerve a bit to see if order to close remains in place. I hope you’re dealing with someone more reasonable than us. I think the holiday companies are obviously trying to protect their revenues by asking people to cancel/rebook. We booked through an agency and they have been useless in helping us. I think they have the property owners’ interests at heart, not the holidaymakers.

I think the holiday companies are obviously trying to protect their revenues by asking people to cancel/rebook

Indeed. If everyone demands a refund many smaller operators and some large ones are likely to run out of money. However, that doesn't justify ignoring the law. Encourage people to rebook by all means but don't refuse refunds.

@prh47bridge thank you. It’s the fact that he is offering nothing. Not a full or partial refund, or a credit to reschedule. He just keeps saying we should cancel the booking and he will re-market despite the fact that his property is now closed by law.

I’m wondering if I can rely on this provision in the terms and conditions:

“If, for reasons beyond its control, the Owner/Agent has to cancel or alter arrangements made for the Hirer, every effort will be made to offer an alternative property if one is available. If this is not possible, or the Hirer does not accept the alternative offered, the Owner/Agent will return to the Hirer any monies paid in respect of the period of unavailability, whereupon the Owner's/Agent's liability will cease“

Does this only come into play if he cancels are booking? Or is our booking cancelled by default because all holiday lets have to close?

I think we’ll end up in court with this as he’s so unreasonable but grateful to anyone with legal know-how who can help to determine how strong my argument is. Thank you

www.visitcornwall.com/coronavirus-covid-19

Holiday rentals are closed. He will have to cancel or alter arrangements unless he plans on defying the law. That means you are entitled to return of your money under this clause. Even without this clause you would be entitled to the return of your money as the contract is frustrated.

If he refuses any refund you will have to take him to court, I'm afraid. However, as this will be a small claim it should be relatively painless.

Perhaps your claim should be against the government.

@cdtaylornats perhaps you could formulate the legal argument for that, with references?

Thanks @cdtaylornats but I don’t see how that will work? I have no contractual relationship with the government

We have a holiday booked in a Cornish cottage from 7 to 16 April.
The holiday company are refusing a refund and are saying that they have to ask the cottage owner whether they are happy to allow a transfer of the holiday to another period this or next year. They are refusing a refund outright.
Can anyone with more legal knowledge see if we are legally entitled to a refund reading this from their website?
Their website states:
In the unlikely event that a property is not available through events arising outside the control of the Owner/AC then the Owner/AC may be forced to cancel the booking and you will be advised as early as possible. Where possible, you will be offered suitable alternative accommodation, which, if not acceptable, will entitle you to a refund of all monies due.

Yes you are entitled to a refund. The paragraph you quote from their website makes that clear. In any event, as with the OP, the contract has been frustrated (i.e. it cannot be performed due to an unseen event that isn't the fault of either party). That means you can recover any money you have paid.

Thank you prh47bridge!

@prh47bridge - thank you. May I ask, do you have lots of experience with this kind of thing? I’m drafting letter of claim and I’m wondering whether to argue for breach of contract (property unavailable etc) or frustration. I always thought frustration can be a bit tricky to argue and may not be such a successful argument in recovery of our money? But then if I argue breach my argument is property unavailable. He says it is but government are saying you can’t go. He refuses to cancel booking therefore can’t rely on provision in ts and cs that he is liable for full refund in event he has to cancel (but unavailability for reason outside of owners control is mentioned so Clearly unavailability has been accounted for). Seems very unfair that we can only claim for refund in event he cancels... which he won’t! Not in spirit of joe contract was intended I’m sure.

So, very long winded but I would value your thoughts on which argument is stronger. Thanks so much x

@Astrid23 this is problem we have. According to the ts and cs the owner has to cancel for holidaymaker to claim refund. In our situation the owner is refusing to cancel our booking (even though we can’t go)! So technically booking not cancelled and still live. He keeps pushing us to cancel - I will not do this as this will mean we are in breach of the contract and unable to recover any of the rent paid

This is as straightforward a case of frustration as it is possible to get. The owner cannot fulfil the contract because the government has ordered them to close. That is something that is outside both the owner's control and your control. Breach of contract implies that the owner is choosing to be in breach, which is not the case.

If you want to quote the law at him, mention the Law Reform (Frustrated Contracts) Act 1943. That says you are entitled to your money back.

For the sake of completeness, I should mention that the legislation allows him to retain an amount to cover any expenses he has incurred for the purpose of performing the contract. However, given we are dealing with a holiday let, I very much doubt the courts would find that he has any allowable expenses.

Send him links to the government guidelines re non-essential trips, closures, etc and tell him you'll be filing a claim in small claim's court at the end of next week if the money isn't refunded in full by Wednesday.

Tell him you'll also be stating the facts of his unreasonable stand on the related social media sites.

Thank you everyone, especially @prh47bridge - you were so helpful! Sorry not to update before now. I had hoped to update with positive news. In the end I served a letter before action on him citing frustration of contract. So it looks like we’re going to court. But I’m grateful for your input as it helped get my thoughts straight. Thank you

We have a holiday cottage booked at the end of May. The original terms and conditions had a force majeure clause that states that they would give a refund if not able to go, so this would be for the full amount. They have now updated the terms and conditions on their website to say that if affected by covid-19 then they will only allow a transfer to another date.

I don't think this legally effective as we haven't accepted those terms and they wouldn't retrospectively apply without our agreement! But would welcome thoughts on this....