Creche deposit not refundable. Do I have a case?

haroldwne

Hi,

Hopefully someone can tell us if we have a leg to stand on here.

=== the details ====
We looked at a creche, felt it was OK, so we paid 1 month deposit (1 month, 600euros part-time occupancy). This was paid almost 4 weeks ago. Our child was due to start 24th February 2011. We paid up quickly just to be sure of a place. Creches are generally full in our area so we were happy to be safe and book the spot and be able to forget about it.

Last week, our circumstances have changed (personal reasons - but surely the reason is not relevant here?!). We cannot go ahead with this creche.

My wife paid the cash deposit. At the time, the owner gave her a receipt, and a copy of the contract to sign and drop back. The contract was just sitting in our kitchen for that last 3 weeks... we've been meaning to fill it in and drop it back, and due to laziness and being busy doing other stuff, we just never got around to reading it fully and dropping it back, although we had intended to. It has not been signed or completed by us, and therefore the creche owner does not have our signatures.

When we realised we wanted to pull out of the creche, I rang the owner last week asking if there was a possibility of a refund. The owner said it is not policy to give refunds. They have refused another child based on our booking. Note that this is almost 3 months cancellation notice. I would be very, very surprised if they have difficulty in filling the spot between now and then. I said at the end of the phone conversation to let us know if they manage to fill the spot, and thus receive the deposit back. I was possibly too easy-going now looking back. I doubt I will be hearing back from the owner.

I feel a bit screwed by this. I have of course since read the contract, and it does indeed state that deposits are non-refundable. Many creches have a policy of requiring 2-months cancellation notice to give back a deposit. A fair enough amount of time to allow for future occupancy I would imagine. Giving this owner almost 3 months is surely enough, even though the contract states "no refunds" (again - contract not signed, but I presume that's just dotting the i's and crossing a t... possibly a groundless reason to look for money back).


=== the questions ===

Are we entitled to all or part of our deposit back? If so, on what grounds? Should I insist that "3 months is enough notice", or, "you never told us upon giving this to you that the deposit was non-refundable"?

Do I need to accept that I've just lost €600?

Is the small claims court my best option if they insist that they are allowed to keep the deposit?

Is there a legal phrase I should use in a letter to say "x number of months is reasonable notice"?

My current feeling is I should send a letter by registered post dated this weekend, claiming that 1) we should have been told clearly that the deposit is not refundable, and 2) there are still 2 months and 3 weeks to go. That is reasonable notice. If we can't get the money back, we'll chance the small claims court.

==================

On a personal note, I'm kind of shocked the owner is appearing to be difficult about this. Mothers in the area talk to each other. They chat when they meet on their afternoon walks with their prams, they really talk about things like this... I know because I hear the stories every day :-)

If it were me in business in a busy area like this, I'd be making sure that my reputation as a child-minder is top-notch, with no risk of falling out with parents in the area. The last thing I'd want is people bitching about me.

Paulw

From reading all this, it seems that YOU made the mistake.

You handed over a deposit, without first reading the contract, and without noting that the deposit was non-refundable.

Did you ask if the deposit was refundable?

Maybe they could still fill the place. Maybe the should refund your deposit, but, from reading your post, I can not see how they are liable to refund it, because you made the mistake and then changed your mind.

Jo King

Legal advice is not allowed on this forum. I do not agree with the poster above however.

Reloc8

haroldwne wrote: »

If it were me in business in a busy area like this, I'd be making sure that my reputation as a child-minder is top-notch, with no risk of falling out with parents in the area. The last thing I'd want is people bitching about me.

I agree.

However if you knew the deposit was non-refundable when you paid it you are probably wasting your time looking for a legal right to stand on.

If you didn't know that the deposit was non-refundable when you paid it that might be different albeit that you'd be faced with the proposition that in general deposits are non-refundable and there is no reason why the situation would be different here - as you said creches in the area appear to fill up fast and it is sensible to try and make arrangements in advance.

Unreasonable/unsensible business practices don't affect the legal right to retain the deposit one way or the other.



I would be pessimistic about your chances. You were given a copy of the contract at an early point when deposit was paid. The question is begged as to whether had you realised the deposit was non-refundable you would have objected and not paid the deposit or requested it to be returned at the point you realised this.

It seems to me you would probably have to concede that at the point you paid the deposit you were happy to do so, and either it didn't matter whether it was refundable or not (you wanted the place and intended to take it up) or you didn't mind that it was non-refundable (you wanted the place and intended to take it up).

In any event, by raising no issue about the refundability, when it had been made perfectly clear that it was non-refundable, in law you probably accepted that, more or less, as a basis for the relationship to proceed, i.e. a contractual term.

In any event you are correct that the court to bring this in would be the small claims court. You can lodge papers yourself - there is a filing charge - and represent yourselves in the case. For the amount in question it is probably not worth the cost of engaging legal representation but that's a matter for yourself. One way or another, if you do engage a solicitor you will be liable for their charges whether you win or lose.

I tend to think that you have simply come out the unfortunate end of the situation here, but are not going to have success in garnering any legal recourse.

Hopefully that helps - save you time/money if nothing else - however this is not of course legal advice nor should it be relied upon as such.