The High Court handed down judgement in the matter of The Office of Fair Trading (OFT) v Foxtons Ltd [2009] EWHC 1681 (Ch) on 10th July 2009. In an application under the Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083, the OFT sought declaratory orders in respect of unfair terms in contracts made between Foxtons and various landlords as consumers. The term in dispute concerned the obligation to pay to Foxtons commission upon renewal of the tenancy beyond the initial contractual term irrespective of the defendant’s involvement.

Protection from assessment under Regulation 6 will depend on the expectations of the consumer and the manner of presentation. In this case the uncertainty of the renewal made the term a subsidiary matter in the eyes of the consumer; the term would not be excluded from an assessment on fairness as it did not form part of the core bargain.

Having discussed the regulations and the guidance laid out in Director-General of Fair Trading v First National Bank plc [2002] 1 AC 481 the court concluded that against its background the term in question was unfair. The court emphasised that judgement was handed down in light of the specific facts of the case. Renewal Commissions will not always be unfair to consumer landlords.