Hi,

I have recently been foolish enough to purchase a service (property search type service) for which i feel i have been somewhat miss-sold.

Amongst other things the additional VAT was never mentioned on the call, and until i received the receipt today i was none the wiser of this extra cost.

What i am querying is whether i can cancel within the 7 day cooling off period. Essentially they witheld the property lists unless i agreed to waiver the cooling off period. Otherwise they would wait for 7 days to pass, and then provide the information to me. I waivered this over the phone and received the lists, which were not quite what i was expecting...

I'm hoping that by some luck they have played with the law here a bit, and i can't waiver this cooling off period.

The siutaion is... I am looking for property to buy. I placed my criteria on a website which emailed many different agents. I received a call from this company the following day, she explained the waiver, and told me if i wanted immediate access i would have to waiver it. Is this legally possible in this situation?

Many thanks,

John

The right to cancel allows the consumer time to examine the goods or services, as they would have when buying in a shop. The cooling off period starts when the contract is concluded and ends 7 working days after the day the goods are received (for services, 7 working days after the order is made). However, if a service starts immediately, before the end of the cooling off period, the consumer must be informed (in a durable medium) that they will not be able to cancel once it starts.

Unless they informed you as per the last paragraph in bold above, then they are incorrect ...the cooling off period would not have been waived until they had informed you on durable medium......

Verbally informing you over the phone is not informing you in a durable medium. Therefore you are still within your cooling off period, until they have sent either a email or a letter or something that qualifies as durable..... Or Seven days expires of course. !

** Write (recorded) or email, stating you wish to cancel under the 7 day cooling off period, as they have failed to inform you by durable medium about how this has affected your statutory rights to cancel.

Perfect! :)

Many thanks for yor help on this. I shall see what they have to say.

If you are ever down my way, i'll buy you a beer :)

Much thanks,

John

I may take you up on that kind offer - burp. !

What is durable medium - definition below.

http://wiki.answers.com/Q/What_is_Durable_Medium

Distance selling regs below - Pay particular attention to sub section 3.23 on page 17 and below it -- for services.

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Ah, i'm not sure if this is a stunbling block or not.

I have just read for myself the passage you have quoted on the berr website, and directly underneath it it goes on to say...

The cooling off period and right to cancel do not apply to contracts for:

• goods made to the customer's specification;

Now, the agent will have run a search on properties and in a sense tailored it to my specification. In escense she provided me a list of properties relevant to me (haha what a joke!!)

I'm assuming the statement above is intended for physical goods like a window or a picture frame. Could a tailored list be considered the same? Is a list in electronic format considered to be a good?

Would you think that them drawing atention to a cooling off period in the first place means that they indeed view their service as having to abide by it, and therefore not exempt as per the above statement.

Alas, law, its all about interpretaion isn't it!!

Goods made to the customers specification = is definitely not a service....it is goods. !

Such as a personalised leather belt, or other such goods that are made specially to a cusomised order.

If they have not yet provided that durable medium, then your cooling off rights still exist.

Hi,

I have challenged the legality of waiving the cooling off period on the grounds that i was not provided notification in a durable medium before the commencement of the contract.

Whilst they did not challenge the requirement to provide notification in a durable medium, they have rebutted this pointing by the fact that it is on their internet site, and my responsibility to read this.

I just wanted to be clear before I challenge this further…

Firstly, they contacted me via phone and I was not directed to their website to read any terms and conditions. In my mind that is the same as them saying “…you should have read our T&Cs on the bill board in Trafalgar Square…” No good if i dont know its there, and i have no access to Trafalgar Square whilst on the phone in Cardiff...

Secondly, the link above states that durable medium is

“paper or any instrument which enables the recipient to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored. In particular, durable medium covers floppy disks, CD-ROMs, DVDs and hard drives of personal computers on which electronic mail is stored, but it excludes Internet sites, unless such sites meet the criteria specified in the first sentence of this paragraph”

Reading this it is quite clear that a website is not considered durable medium unless it was addressed to myself.

Am I correct in this understanding before I challenge them further?

Many thanks,

John

uklegend:

Reading this it is quite clear that a website is not considered durable medium unless it was addressed to myself.

Am I correct in this understanding before I challenge them further?

I assume this is a financial organisation?

I have been similarly informed (possibly by the Financial Ombudsman Service) but I did not need to test it in the end as faced with a referral the organisation caved in.

The lesson is don't worry, light the blue touch paper by raising a formal complaint strictly in accordance with the organisation's complaints procedure, stating your case.

They may or may not be right, but it would cost them a £400 plus FOS case fee to make their point. Costs you nothing.

Not a quick process unfortunately except I predict they will cave in.

Good luck.

uklegend:

I think you have a case, so could raise an official complaint with the company and then as Jalexa suggests go to the FOS. This may take months to resolve.

Alternatively you could contact Consumer Direct to see whether Trading Standards could look into this issue for you. Most of the Trading Standards offices now use Consumer Direct as their helpline. See http://www.consumerdirect.gov.uk/

Huckster

Its not a finace company, but a knda middleman for real estate auctions. Whilst i feel i was given misleading information, it possibly may not have been incorrect information... To that end cancelling on those grounds could prove difficult, and infact they have already refused on those grounds.

I am now trying to cancel on the grounds of the technicality of how the 7day cooling off period was waivered. It certainly seems that the law is on my side.. and i will inded pursue it.

If once again they refuse to refund, is it Consumer Direct who i need to contact?

uklegend:

If once again they refuse to refund, is it Consumer Direct who i need to contact?

Yes as I understand it Consumer Direct are the consumers contact point for Trading Standards and the OFT. Although I suspect their advice is limited to the laws/rules that apply and what complaint forms you need to complete.

Huckster

The law is quite clear on this, therefore if they haven't supplied these terms in durable medium then they have not fulfilled their obligations as required by law under the, "distance selling regulations". !

If you require independent corroboration, contact your local trading standards or CAB.

Any other form i.e. telephone or pointing to hidden terms or even clear impersonal terms on their website.... is not a durable medium. Unless they could provide clear dated evidence they notified you by durable means then your cooling off rights exist for Seven days.

Three beers. !!!

Lol, 3 beers it shall be!

Thanks again :)