Mr Justice Mann examined terms concerned with commission payable by landlords on the introduction of a tenant, whether or not the tenancy was negotiated and finalised by Foxtons. The terms also stipulated that commission would continue to be payable where tenants renewed or extended their tenancy or where a new tenant took over who was connected in some way with the previous tenant. Furthermore, the terms stated that commission would be payable where tenants subsequently purchased the property from the landlord (sales commission) and where the landlord assigned their rights to a third party (third party renewal commission).

 

Foxtons had re-issued some of these terms, in response to OFT concerns, but the original terms were examined in court as old versions of Foxton's terms were still in circulation.

 

The judge said that neither the original nor the new terms were drafted in plain and intelligible language and that both formats were unfair as the small print did not highlight the onerous clauses. Foxtons' changes had in fact made the position worse and its new version of the renewal commission term in particular was more obviously unfair than before. In some instances Foxtons would clearly not provide any service in relation to the tenancy or sale which gave rise to the commission and this was unfair.