Cancellation fees for a holiday apartment rental

Hi,

My wife and I booked a holiday property in Bavaria which we had to cancel (not covered by holiday insurance). The property owner did not ask for deposit, even though we offered one, and did not mention any terms relating to cancellation. They are now seeking 480 euros for the week we did not have the property.

My understanding of German law (both from my job as a lecturer and from German legal colleagues) is that this person doesn't have a leg to stand on, as the German legal code (and the UK law, and EU law) forbid the retroactive introduction of contractual terms.

She is now threatening to go to as she terms it "the complaint court", which I presume is the German equivalent of the UK small claims court. Anyone know what their procedure is?

You are and live in England what the hell can they do about it?

What does the contract say about cancellation fees?

well, technically I suppose it depends on whether you take the view as to whether the contract was concluded in the UK or Germany. I'm of course of the opinion that she hasn't got a hope, but just to be on the safe side (forewarned is forearmed and all that...), I'm curious as to the procedure.

I could of course counter sue her for harassment...

"What does the contract say about cancellation fees?"

it didn't. which is why she hasn't got a hope...

basically, she advertised her property on a website (UK based), I asked the price for a week, booked it, offering a deposit (she refused), I had to cancel, she's making a song and dance about it, I've told her she hasn't got a chance, but she's not going away, so I'm just interested what the "complaint court" is so that I can counter any further madness she directs at me.

basically, she thinks she should be compensated for a lack of financial gain, which is not the same as suffering a financial loss

Krouts unfortunately have a tendency to threaten to sue - cos lots of them have legal insurance. So I hope that you enjoy the process.

Sadly, this forum attracts wannabee lawyers and other sundry hangers on - a little knowledge is a dangerous thing etc. Don't be surprised if a lot of people chip in with extremely obvious statements to a professional in the field.

Anyone who will know about the particulars, will I'm afraid, be expecting payment.

Sorry to hear about your cancelled holiday though. Bavaria is lovely at this time of year.

Actually, she very much has a legal leg to stand on, under German law. If there is nothing specific on cancellation fees in her ToS, she has to prove (on request) how much she is losing through this. Depending on how much that week would have cost, and how far in advance you cancelled, this could approach the sum you've been told. Legally, there are very few options under which you would not be obligated to pay some fee at all.

Of course, the international side makes this whole thing a bit more complicated.

Oh, don't worry, ALL Germans say this (especially to foreigners) to scare them into paying.
Hell, my husband threatened to sue the woman at the Kitty pension who had our cat and refused to give her back. It happens every day in Germany.

If german law apllies (if), and if there is no contractual cancellation policy you don't have a leg to stand on. Google Pacta sunt servanda.

Come on, be realistic. You are in the UK and she is in Germany. This is not a murder case, it's some petty dispute over 480 euros. You have nothing to worry about.

She can take you to court, in Germany that would be the Amtsgericht where anyone can represent their own case; or she can obtain a court order to be delivered to you in the UK via official channels. In this court order she would have to state if the claim is based on a service rendered or if it represents damages.


Exactly. She would be claiming damages, and that's where the fun starts. OP contradicts the court order, she has to take him to court - I'm not sure if in Germany or the UK; again, it depends on the contract if any and international legal aid agreements. In a German court she has to prove that she was not able to rent out the property a) at all or b) at the same terms, that would determine the amount of damages awarded. If she rented the property out at the same or even better terms and still tried to claim damages that could be abuse of legal rights (Rechtsmißbrauch) and she can end up in an unpleasant situation indeed.

At any rate, she probably will add a provision regarding cancellation fees in future written contracts.

The usual disclaimer: Get professional advice.

thanks for all the replies so far:-

re:- "if there is no contractual cancellation policy you don't have a leg to stand on":- I'm pretty sure she doesn't either... she is saying that "you have cancelled the contract, and now you must pay" - this would seem to be entering cancellation terms after the contract was concluded, which I believe is contrary to Paragraph 305 (2) of the BGB. Basically, if she wanted to make me pay for cancellation, she should have said "in the event of cancellation, you must pay x amount".

re:- "Come on, be realistic. You are in the UK and she is in Germany. This is not a murder case, it's some petty dispute over 480 euros. You have nothing to worry about.":- this would seem so, but basically I've tried saying politely to her "over my dead body", and have taken (unofficial) legal advice from German legal colleagues, and she's still not going away. at the end of the day, I agree it's (relatively) small amount, but it still doesn't make the fact that there's some mad aggrieved German being a pain in the arse any more palatable.

re:- "She would be claiming damages... she has to prove that she was not able to rent out the property a) at all or B) at the same terms, that would determine the amount of damages awarded. If she rented the property out at the same or even better terms and still tried to claim damages that could be abuse of legal rights (Rechtsmißbrauch) and she can end up in an unpleasant situation indeed.":- going by UK contract law, and the parallels in German law, she has not "lost" out, in the sense that she is now worse off than if I had never contacted her in the 1st place and the house was not rented. as I cancelled at least 2 months in advance, this is not the same as me telling her I'm not turning up the day before I'm due to. basically, failing to receive a financial gain is not the same as suffering a financial loss - i.e. she's not out of pocket.

I am seeking advice from German qualified colleagues (who have practised professionally), but basically as I'm not German qualified but have taught some German law (go figure - that's the UK Higher Education system for you!) I was sort of approaching this from a "pure letter of the law" theoretical point of view, so wanted to get some sense of the day to day reality.

ooh, 2 other things:-

1) I'm happy to post (edited) correspondence between me and her if you think that might help (quite understand if it's contrary to site/forum rules)

2) she has asked me not to contact her again, which does make me wonder about my right to respond in a German court. i.e. can she just go ahead and get a decision without the court informing me of proceedings?

cheers.

Do not copy and paste any correspondence verbatim, it's against German privacy laws. You may, however, quote pages and pages in indirect speech.
*Law, you gotta love it*

EDIT: The court will inform you of any proceedings. If a lawyer contacts you announcing his representation you may contact him but not her directly.

This same thing happened to me and basically I told them in a nice way to fuck off. I had given them ample cancellation notice in writing via email. There was no cancellation policy.

I sent an email telling them the negative consequences of future lost business with them trying to get 260 Euros was not worth the hassle for them. They acquiesced and sent me an email back saying I should just forgot it and they would not pursue trying to charge me. I haven't heard anything from them again.

What I found if you let them know in any way you are intimidated you are fucked. Stand your grounds by sending them an email regarding you are not willing to pay this and why you are choosing not to and them tell them you would see them in court if this is the way they want to pursue it and you are now following all the information to your attorney.

What makes you think you could cancel the contract at all with no prior cancellation agreement? You can't just cancel the contract without the agreement of the other party. If she accepted your cancellation, you are good to go, if not, you'll have to pay.

"What makes you think you could cancel the contract at all with no prior cancellation agreement? "

the fact that there is no cancellation agreement works as much in my favour as it does in hers. simple contract law (UK and German) states that you must make contractual terms known to all parties at the outset. if the contract is breached/cancelled/frustrated, you cannot then try and impose a term that you have just thought up and did not make the other party aware of.

besides, we're not talking "formal" contract here, we are talking about an exchange of e-mails wherein I said "I'd like to book this property, how much", she told me. I said, OK, and asked if she wanted a deposit, she said no. I also asked her for bank details, she said pay me when you get here. I then cancelled (2-3months in advance), she said I must pay her 80% of the cost, I told her (politely) to eff off.

"...if you let them know in any way you are intimidated you are fucked...if this is the way they want to pursue it and you are now following all the information to your attorney."

quite so. I think the next stage is to get my colleague to send her an e-mail advising that she represents me.

Regardless of a cancellation clause..

You have signed a contract to pay the sum of xxx€ for a period of xxDays..

If you use this property or not... YOU have agreed to pay for it.

its like buying a pint of milk and leaving it in the fridge... When it goes bad because you didnt use it, you cant expect a refund etc.

"If you use this property or not... YOU have agreed to pay for it."

no, I agreed to pay for occupation of the property and use of the facilities contained therein, not the the "property" itself.

But it's your fault that you did not use the property.
Nevertheles, it all comes down to
a. if german or uk law applies
b. in case of german law, if the other party is a reiseveranstalter according to § 651a BGB
c. if she is, you can cancel according to § 651i BGB, if not you had no right to cancel
d. if you had a right to cancel you have to pay compensation according to § 651i II BGB

"you can cancel according to § 651i BGB, if not you had no right to cancel"

yes, but according to earlier sections of the BGB, she has to make me aware of cancellation terms in order to be able to rely on them.

for example, if you look at http://www.toskana-feriendomizil.de/en/conditions.asp (not her), yes, fine I agree that if I'd agreed to something like that and cancelled, I'd be liable to pay.

on her own website and the "holiday rentals" site that I approached her through, there's zip, zilch, de nada regarding contractual terms.

Post a copy of the contract you signed..

Then we all know exactly what you signed and not what you beleive you signed..

"Post a copy of the contract you signed.."

I would refer you to post 17 -

"we're not talking "formal" contract here, we are talking about an exchange of e-mails wherein I said "I'd like to book this property, how much", she told me. I said, OK, and asked if she wanted a deposit, she said no. I also asked her for bank details, she said pay me when you get here. I then cancelled (2-3months in advance), she said I must pay her 80% of the cost, I told her (politely) to eff off."

she's a private individual with a holiday home to let. on other occasions when I have done this (UK, Croatia, Germany, France) all correspondence is by e-mail, it's usual for the individual to request a non-refundable deposit (up to 50% of the rental cost). The understanding being if you cancel, you lose the deposit. I appreciate in this instance the cancellation is my fault, but if you didn't ask for a deposit at the outset, you can't suddenly say (as per BGB) "ooh, now I want a deposit"

so, if you were in her possition, would you accept this? or would you see it as lost revenue?

Let me get this straight?

You recognise that morally you are liable and should have lost a pre-agreed deposit, yes?

However, since there is no contract specifically stating a cancellation clause, then you are going to unashamedly rip the lady off?

Do i have it about right?

Is it any wonder the great majority of people see lawyers as low life, money grabbing, amoral bastards.

Is that a Typo.. Did you mean Abnormal??

"Let me get this straight ? You recognise that morally you are liable and should have lost a pre-agreed deposit, yes ?
However, since there is no contract specifically stating a cancellation clause, then you are going to unashamedly rip the lady off ?Do i have it about right ? "

No; I thought it was unusual she didn't ask for a deposit and was happy to offer one. she didn't take me up on that - not my fault that if I have to cancel she isn't covered. but it is her fault that she failed to make clear any terms relating to possible cancellation. I wouldn't ever be "happy" to lose a deposit, but I accept it would be a consequence of cancellation because everyone understands the concept of a non-returnable deposit. However, not everyone is aware of the possible consequences of cancellation if they're not made aware of them from the outset. You can't read the "small print" if there's no "small print" to read. sure, if I'd signed a contract without reading the small print, I'd have it coming to me. not a question of "ripping her off", but more a case that whilst I would reluctantly accept something that was included at the outset, but there's no way I'm accepting something she's trying to shoehorn in after the event.

"so, if you were in her possition, would you accept this? or would you see it as lost revenue?"

the whole point of contract law is often to put the parties back into a position that they were in prior to the contract. If she had specially refurnished the house for our visit (e.g. my wife was disabled and she'd gone to the expense of putting a ramp in), then she would be entitled to damages based on what she'd spent on refurnishing. as it is she is in no worse a position than had we not entered into the contract.

Typical lying, wheedling double speak from a member of the most disgraceful profession on the face of the earth.

You agreed to rent her place and then cancelled, if she hadn't been trusting then you would now be minus deposit.
I sincerely hope that karma comes into play and you are summarily repaid for this act of double dealing.

Just stay in the UK and get off this Expat board.

You guys will let the moral/emotional element enter into your evaluations. Lots of things are legal that various people consider immoral (e.g. abortion).

The first thing my first boss taught me about law: Law and fairness are cats of two totally different colors (or, in German, Recht hat mit Gerechtigkeit nichts zu tun).

If you cancel 2-3 months in advance, then I reckon it's given her plenty of time to find someone else to rent the place out to.

When did you want to rent it for? And how long after agreeing to terms did you cancel? Because I think it's pretty shit of her to demand payment prior to the rental period. If you paid her the money and she still found another tenant for the same dates, do you think she'd refund it? I doubt it.

down, BlueDave! Down SpiderPig!

I'm no lawyer (and I hated Business Law in college) but, if I were in the same position as lawlecturer, I would be saying the same damn thing.

SHE made a mistake, a big mistake, and it bit her in the ass. She loses some money and she won't make the same mistake again. Lawlecturer even offered to pay a deposit so that's makes her even more foolish. Life is a big series of learning from your mistakes. I wouldn't pay either - especially if I cancelled 2-3 months ahead of time.

Guess I'm the shit now, huh?

You are overreacting. If she had a cancellation 2-3 months in advance then she had ample time to rent it again. Had she rented it out successfully and kept the deposit as well, would you still consider her to have to moral high ground?

Incidentally, consider that a 50% deposit is normal, and this lady is asking for 80%. This makes me suspicious that she is attempting to profiteer from a foreigner she thinks she may be able to browbeat into paying over the odds. Either way, I think your dislike of lawyers is leading you to dismiss evidence in the other direction.

"Typical lying, wheedling double speak from a member of the most disgraceful profession on the face of the earth. (not arms dealers then?)

You agreed to rent her place and then cancelled, if she hadn't been trusting then you would now be minus deposit.

I sincerely hope that karma comes into play and you are summarily repaid for this act of double dealing."

no need to be so offensive, pal. I love the way everyone's so "anti" lawyers except when they're using one.

I suppose you've never at any point in your life said "oops, changed my mind/circumstance dictates I can't do this, terribly sorry for the inconvenience". I'm sure you'd equally be amazed if someone leapt out at you and said "right, I want cash, but actually hadn't made you aware of that in the 1st place".

I was up front and honest with her. she was not up front and honest with me. deal with it

I'm no lawyer (and I hated Business Law in college) but, if I were in the same position as lawlecturer, I would be saying the same damn thing.

It seems as though lawlecturer had made up his mind before he posted here and is just looking for a few opinions to validate his own.

More looking for information on what the consequences of his attitude might be.

First off, i ain't your ' pal '.

Secondly, most people are anti lawyers even when we are having to make ourselves feel grubby by having to deal with them.

Very, very few people would ever claim that using a lawyer was a pleasure.

More looking for information on what the consequences of his attitude might be.

In part maybe but, to me, his general replies show that he's only interested in those saying that he has no obligation to pay!

Yes, that's quite obvious...but I thought he posted to find out his legal position and how he can get her to stop bothering him, not to validate his opinion.

we booked the property for 2 weeks in June back in January (when I offered her a deposit). you'd think that that would be a good time for her to mention any cancellation terms. we cancelled in late March/early April and then she comes at me saying "if we can't rent it out you must pay 80% of the costs". at which stage I said "look, sorry for the inconvenience and all that, but there's no way I'm paying 80% for something I'm not getting the benefit of, and besides, according to YOUR law, you can't now say "if x happens, then these are the consequences". she then said nothing until last week (i.e. 2 month lapse) when she sent an invoice for 480 euros (which is one week's worth, as she managed to rent it out for one of the weeks).

I got a german qualified friend to draft something, sent it to her, and she's saying

"what you nicely inform to us is not relevant.
>
> You lease our cottage, we have got your inquiry, you asked
> for offer, we have given an offer to you und you accepted
> this offer.
>
> Our invoice is not a penalty for breach the contrakt.
> We have to demand compensation because you have breached
> the contract.
>
> We submit the matter to an advocate now
> to the collection by legal process."

after another e-mail to her she is saying:-

please spare us your dubious legal advices, every sensible person must
> laugh about it.
>
> We do not become a legal advice from a jurist, no, we walk along the way
> of the complaint Court.
>
> You will become more costs to pay as 480,00 €.
>
>
> And please be so good, don`t contact as any time again. "
>

Only if they differ from the terms stated by law (ie 651i II BGB) or if the reiseveranstalter wants to incorporate a Pauchalvergütung (flat cancellation fee 651i III BGB).

I do, she was amazing

as to whether I'm "validating my opinion" some people on here have advised me that germans are a litigious bunch of bastards, some people are saying she's within her rights. if she's within her rights, then I'll have to pay, I agree.

"First off, i ain't your ' pal '."

actually I was using it in the ironic sense. but, I don't recall calling you an amoral shit. what profession are you in btw? I'm sure there's people that'll find that just as objectionable.

My profession is a matter of record amongst other expats, bye now.

Ok well I know very little about the law in this case but if you cancelled a booking for June in April I cannot see how she can demand you pay 80% of the room costs especially if there is not a written contract.

I think as well she would also need to prove that she had turned away potential bookings before you cancelled and was also unable to fill the holiday home after you had cancelled. If this is a nice place and she is always fully booked then I doubt that she had problems filling it. If on the other it is a quiet place and doesn't get too busy then I wouldn't have thought she would be at a financial loss if you had cancelled it two months in advance.

It sounds to me like she is taking you for a ride and I doubt she will actually go through with this as I would imagine she'd have to pay a 'Selbsbeteiligung' (self contribution I guess) on her legal fees and think this can be up to 250€ so she might only be getting 130€ out of it which is probably not worth her practising her English on her Emails to you.

As I said I have no idea how you stand legally - I don't think anybody who has replied knows exactly but I would just not pay it and not worry about it until she does decide to take further action.

A good many of the larger hotels will allow you to cancel up to 6pm the day of arrival, smaller places 24hrs prior and the rest 7 days prior to arrival for in most cases a full refund of any deposit paid. The only times I have come across no refund/cancellation is for a special rate as in early booking way cheapo deal or special events, So I reckon a cancellation 2+ months in advance should not require any payment and in the event of a deposit being paid should also result in a refund.

this is the thing. In the UK I've got to go to a function in August, I looked on the web for B&Bs, etc. found one, said I'd like a room for the night, and then found out they hadn't got off road parking I withdrew from the booking. I had a perfectly valid reason for withdrawing, and I'm not getting e-mails from them saying "you must pay!!!". Hence why I genuinely am taken aback as to why this woman thinks it's justified to charge me (and not because I'm a cynical lawyer as some may suggest).

I must say I drove through Germany on my way to Croatia last year, and stopped at 2 B&Bs/hotels. at the 1st, the owner actually invited herself to dinner with us! at the 2nd, the restaurant was closed at 9pm, not what you want after being stuck in traffic in Austria for 7 hours! These plus the current experience really are, I'm sad to say, making me see the Germans in a wholly unfavourable light

Post up the link where you found this. I will email her for the weeks in question and see if they are available. If they're not available, then you can go back on her with this little bit of info.

I think she is trying to take advantage of you and, yes, Germans are very quick to threaten you with lawyer talk.
Don't pay!