1. CONTINUOUS CONTRACT
- This Contract (as amended from time to time in accordance with clause 2.1) records all the terms agreed between the Owner and the Agent in respect of the Property and its rental and supersedes any previous contract, understanding or arrangement between the parties and shall govern the relationship between the parties going forward.
- The Owner and the Agent agree this Contract will run continually unless terminated in accordance with clauses 15 or 16.
- If the Owner is two or more persons, liability shall be joint and several and the person first named above shall be authorized to accept payments and communications from the Agent on behalf of all Owners.
2. STATUS OF AGENT
- The Owner has appointed the Agent as its sole agent to promote, arrange and take holiday bookings for the Property (each of which being a “Booking”) from individuals, families, groups of friends, etc, (“Holidaymakers”).
- During the term of this Contract, the Owner shall not appoint any other person, firm or company to provide services the same or similar to the services set out in clause 2.1 and clause 4 (the “Services”).
- In providing the Services, the Agent acts as agent on behalf of the Owner and not as principal.
- It is agreed between the Owner and the Agent that immediately upon a holiday booking being accepted by the Agent on behalf of the Owner, a legally enforceable contract then exists between the Owner and the Holidaymaker for the Owner to provide the holiday accommodation comprised in the Property to the Holidaymaker in accordance with the terms of this Contract and the Agent’s booking conditions in force from time to time (the “Booking Conditions”).
3. AGENCY AND BOOKING ARRANGEMENTS
- The Owner agrees to pay the Agent
- Commission in respect of each booking in the sum of 20% of the total payable by a Holidaymaker for such Booking (the “Commission”); and where applicable, VAT on the Commission
- The Owner agrees the Property will be continually available for holiday bookings unless the Agent is otherwise notified of a temporary unavailability in accordance with this Contract (in which case the Agent shall cease to take new Bookings for periods during such temporary unavailability). Accordingly, the Owner must immediately notify the Agent if the Property is unavailable for any reason – for example, because repair work is being carried out. In respect of any holidays cancelled as result of the Property being unavailable the Agent will deduct its fee from any subsequent payment to the Owner
4. SERVICES PROVIDED BY THE AGENT
- During the term of the Contract, the Agent will include the Property within the Agent’s holiday booking system and web site (together the “Agent Materials”) and will advertise the Property, as the Agent deems appropriate. The Agent will carry out all initial photography, art and design work and copy writing as deemed necessary by the Agent for the purpose of the Agent Materials for which a charge will be made.
- The Agent will, in respect of each Booking, upon receipt of a holiday booking application form, telephone booking or internet booking, confirm the Booking to the Holidaymaker (orally, in writing or by email) thereby on behalf of the Owner, legally committing the Owner to provide the holiday accommodation comprised in the Property to the Holidaymaker.
- The Agent will send to the Owner by bank transfer (BACS) the deposit within 14 days of receiving same from the Holidaymaker in the first year of this Contract.
- The balance less all commission, fees, VAT where applicable, will be sent to the Owner by bank transfer (BACS) within 14 days of receiving same from the Holidaymaker.
- From the commencement of Year Two and thereafter the Agent will retain the deposit as the Agent’s Commission in line with industry practice.
- The Owner acknowledges and agrees that once a Booking is made a legally binding contract is made between the Owner and the Holidaymaker and thus the Owner shall be responsible for dealing with any problems or complaints from the Holidaymaker and the Owner acknowledges and accepts that the Agent shall have no obligations or liabilities in respect thereof (though the Agent will do all it can to assist the Owner when possible) unless the Agent is remunerated for it’s “On Call” service in which case it will do whatever it reasonably can to resolve any problems that arise.
- The Owner undertakes promptly to take all reasonable steps (both during and after a holiday has taken place) to resolve or alleviate to the Holidaymaker’s reasonable satisfaction any problems or complaints occurring during a holiday in relation to the Property and/or its facilities.
- If the Agent incurs expenditure in resolving a problem it will offset that cost against the income to the Owner due from the next available booking payment.
- The Agent will not incur cost without attempting to contact the Owner but shall be free to proceed if the Owner is unobtainable.
6. THE PROPERTY
- During the term of the Contract the Owner shall not sell or otherwise dispose of the Property or take steps to do so (including, but not limited to, registering with an estate agent).
- The Owner warrants that each entry in the Agent Materials in respect of the Property is and shall remain factually correct and does not and will not misrepresent the condition, situation or facilities of the Property.
- The Owner undertakes to maintain the availability of the advertised facilities at the Property and to give the Agent immediate written notice of any change or withdrawal of any facility. Upon receipt of such notification the Agent shall endeavour to inform Holidaymakers of such change or withdrawal but shall have no liability for any failure to do so. If a Holidaymaker wishes to cancel their Booking as a result of such change or withdrawal of facilities, the Agent will deduct their fee from the subsequent payment to the Owner.
- The Owner undertakes to ensure the Property is at all times completely safe for use by Holidaymakers and specifically, that all appliances/equipment in or on the Property are in good and safe working order and that the water, gas, electricity and other services to the Property are of a sufficient and safe standard and comply with all relevant legislation.
- The Owner undertakes immediately upon being so requested by the Agent to take all reasonable steps to bring the property or any part of the interior or exterior thereof to such standard of safety specification and quality as may be required to comply with the terms of this Contract and the Booking Conditions.
- The Agent reserves the right to retain details of the Property on its website after termination of this Contract and/or to make it clear to prospective Holidaymakers that the Property is no longer available with the Agent.
7. OWNER’S TITLE TO THE PROPERTY
- The Owner warrants that he/she is the sole owner of the Property (or one of the owners of the Property acting with legal authority for all other owners) and has all necessary rights, powers and authorities and has taken all necessary actions to enter into this Contract and perform the obligations herein.
8. AGENT’S INSPECTION OF THE PROPERTY
- The Owner agrees to allow the Agent’s representative access to the Property by prior arrangement at all reasonable times.
9. NO RESTRICTION ON LETTING THE PROPERTY FOR HOLIDAYS
- The Owner warrants that there is and will be no restriction upon the Property being available for letting in accordance with this Contract and/or the Booking Conditions, whether imposed in the title deeds to the Property, by any planning authority, by any mortgagee or other party having an interest in the Property or otherwise.
- The Owner confirms that he/she has taken out a public liability insurance policy in respect of the Property and the use of the Property by Holidaymakers and undertakes to maintain insurance cover with the minimal level of cover of £2,000,000 (two million pounds) or such other figure as may be reasonably required by the Agent until all Bookings have been completed. For the avoidance of doubt such insurance shall cover all liabilities arising from the use of the Property regardless of when the actual claim is brought.
- The Owner shall produce to the Agent on demand a copy of the current insurance policy and policy schedule and the receipt for the most recent premium paid.
- The Owner agrees that the Agent shall not be liable for any loss, damage or injury howsoever caused to the Property or to any Holidaymaker or other person occupying the Property or to any personal property belonging to the same.
- The Owner covenants to indemnify and keep indemnified the Agent from and against any and all losses, damages, claims, costs and expenses (including, without limitation, legal expenses) incurred or awarded against the Agent in respect of any non observance of the terms of this Contract by the Owner or arising from any act or omission (negligent or otherwise) of the Owner relating to the Property and/or its use.
11. CONTRACT NON-ASSIGNABLE
- This Contract is between the Agent and the Owner only and shall not be assigned by the Owner to any other party.
12. DATA PROTECTION ACT/CONFIDENTIALITY
- The Owner acknowledges that all information relating to Holidaymakers supplied by the Agent to the Owner is subject to the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and other relevant legislation and the Owner undertakes accordingly to keep such information confidential, to use it only for the purpose of the holiday booked through the Agent, not to use it for any marketing purposes and not to disclose it to any other party.
- All contractual obligations arising out of this Contract shall be subject to English Law and the exclusive jurisdiction of the English Courts save that the Agent shall be entitled to take proceedings against the Owner in any other court of competent jurisdiction.
- The Owner is and shall be solely liable for all taxes (local and national) relating to the Property and/or any letting income from the Property and the Owner undertakes to indemnify and keep indemnified the Agent in respect of any such tax liabilities imposed upon the Agent.
15. TERMINATION BY THE AGENT
- Without prejudice to any other rights the Agent shall be entitled to terminate this Contract with immediate effect by notice in writing to the Owner (or the Owner’s personal representatives):
- if the Owner sells or otherwise disposes of the Property or takes steps to do so (including, but not limited to, registering with an estate agent);
- if the Owner is in material breach of any/all the terms of this Contract, as determined by the Agent in its sole and absolute discretion;
- in the event of the death of the Owner;
- upon the Owner (or the case of joint Owners, any one of them) becming bankrupt or insolvent or going into liquidation or upon an administrator or receiver being appointed;
- if the Agent receives or becomes aware of what the Agent deems to be an unreasonable level of complaints from Holidaymakers in espect of the Property; and/or
- the Agent is subject to litigation or threats of litigation from Holidaymakers in respect of the Property.
- On termination of this Contract by the Agent in accordance with clause 15.1:
- the Agent will cease taking new Bookings;
- the Owner shall immediately pay to the Agent it’s commission fees in full for all confirmed bookings.
- Should the owner fail to pay the sums in 15.2.3 within 7 days of contract cancellation the Agent will be entitled to withhold all payments to the Owner from further bookings until the identified amount has been reached.
16. TERMINATION BY THE OWNER
- For the purposes of this clause 16, the following terms shall have the following meanings: “Booking Cessation Notice” means a written notice from the Owner to the Agent that he/she wishes to withdraw the Property and for the Agent to cease taking Bookings in respect of the Property. The Agent shall have the right to continue to take bookings for holidays occurring within the period up to one calendar year from the date of the Cessation Notice.
- The Owner may serve a Booking Cessation Notice at any time and, so long as it fulfils all existing Bookings and makes the Property available for new Bookings during the calendar year following the serving of the Booking Cessation Notice (and otherwise complies with the terms of this Contract), no further sums are payable. If the Owner does not make the Property available for Bookings during the periods set out in clause 16.4, the Owner shall pay to the Agent £250 per unsold weekend as a cancellation fee. Should that remain unpaid 7 days after the Owner serves a Booking Cessation Notice the Agent shall be entitled to withhold such sums from subsequent payments to the owner.
- This Contract shall terminate once all Bookings have been fulfilled.
- For the avoidance of doubt, notwithstanding service of a Booking Cessation Notice, the Property (with its advertised facilities) must be made available by the Owner to fulfill all Bookings accepted by the Agent prior to service of the Booking Cessation Notice and/or in accordance with clause 16.5. If the Owner is planning to sell the Property, the Owner must advise its conveyancing solicitor of its obligations under this Contract.
- If the Owner purports to terminate this Contract other than in accordance with this clause 16:
- the Agent will cease taking new Bookings and will retain all subsequent payments made by Holidaymakers to the Agent up to the amount of commission owed by the Owner to the Agent
17. OWNER CANCELLATIONS
- This clause 17 sets out the charges payable for each Booking that is Cancelled by the Owner whether due to the unavailability of the Property, a change in facilities at the Property, breach of this Contract by the Owner or otherwise.
- In respect of each confirmed Booking the Owner shall: refund to the Agent all monies previously paid by the Agent to the Owner.
- For the avoidance of doubt, payments under this clause 17 shall not effect or reduce the liability of the Owner to a Holidaymaker.
- The Agent reserves the right not to inform Holidaymakers of the cancellation of Bookings until full payment is received from the Owner in respect of all sums due. The Agent accepts no responsibility for the actions of Holidaymakers.
18. HOLIDAYMAKER CANCELLATIONS
In respect of any Booking cancelled by the Holidaymaker:
- the Owner may retain any monies already paid (or payable) to it in respect of the cancelled Booking (the “Retained Monies”);
- the Property shall be made available for new bookings (“Re-Lets”) for the dates of the cancelled Booking (the “Cancelled Dates”);
- the Agent shall be entitled to offer such discounted rates for the Cancelled Dates as it reasonably determines to encourage Re-Lets; and
- The Owner hereby acknowledges that if it receives monies (by virtue of the Retained Monies and/or rental for a Re-Let) equal to the sum the Owner would have received had the Booking not been cancelled (“the Entitlement”), it has received payment in full for the use of the Property for the Cancelled Dates (even if the identity of the Holidaymakers may change).
- Any Re-Let shall be subject to the same terms as any other Booking (including the payment of Commission)
19. RECOVERY OF FEES/CHARGES
- The Owner hereby agrees that all reasonable costs, expenses and fees (including debt collection agency fees) incurred by the Agent in order to recover outstanding monies due to the Agent from the Owner shall be recoverable from the Owner and shall be added to the outstanding monies owed by the Owner to the Agent and the Owner shall be liable to pay such sums.
- If full payment of any sums due from the Owner to the Agent is not received by the due date, then without prejudice to any other rights, the Agent shall be entitled to charge the Owner daily interest on all amounts outstanding at the rate of 3% per annum above the base rate of the Bank of England in force from time to time from the date the payment became due until actual payment is received.
- The Agent may vary, replace or amend the terms of the Contract from time to time by giving not less than 30 days’ written notice to the Owner. If the Owner does not serve a Booking Cessation notice within 30 days of the date of such notice, the Owner shall be deemed to have accepted the revised Contract. This clause 20 is without prejudice to the requirements of clause 16.
22. KEY STANDARDS AND REGULATIONS FOR OWNERS
There are certain standards and regulations that are necessary to be met when holiday letting your property.
PROPERTY INSURANCE / There are many providers who cater for this sector and we can suggest companies who offer this service. You should ensure you have adequate buildings and contents insurance plus specific holiday home insurance, which must include public liability cover.
FURNITURE / The law requires furnished accommodation must comply with the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (amended 1989 and 1993) This applies to all upholstered furniture, beds, headboards, mattresses, sofa beds, cushions and pillows. It does not apply to antique furniture or furniture made before 1950.
ELECTRICITY / The Electricity at Work Regulations 1989 are extensive but particularly require that all electrical systems in the property are maintained so as to avoid danger to all who use the premises. This applies to portable appliances as well as installation. Most insurance companies will insist on this.
GAS SAFETY / Gas appliances should be safe and conform to the relevant safety standards. The Gas Safety (Installation and Use) Regulations 1998 require annual testing of gas appliances by a Gas Safe registered installer. Records should be kept for two years.
FIRE SAFETY / All properties must comply with the Regulatory Reform (Fire Safety) Order 2005 (England & Wales) and under part 3 of the Fire (Scotland) Act, supported by the Fire Safety (Scotland) Regulations 2006 that came into effect in October 2006. Part of your obligation is a fire risk assessment, which you should keep on record. We have provided you with a model to adapt to your own use.
CARBON MONOXIDE / You will need to have a carbon monoxide detector in any room that has a gas appliance or wood / multi fuel stove.
ACCESSIBILITY / The Disability Discrimination Act 2005 requires your property to have written Accessibility Statement which you need to keep on record. We can provide a template and examples to help you complete this.