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    • Jahoker
    • By Jahoker 4th Dec 17, 1:06 PM
    • 4Posts
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    Jahoker
    Agent 1 vs Agent 2: Commission
    • #1
    • 4th Dec 17, 1:06 PM
    Agent 1 vs Agent 2: Commission 4th Dec 17 at 1:06 PM
    Hi all,

    I've a situation that has arisen that I'd really appreciate some clarification or input on, ideally as unbiased as is possible.

    We've been selling a house in London @ 950k~ , it went on the market back in August and we have just agreed the sale of the properly, 25k under asking.

    We originally marketed the property (up until Oct) with PurpleBricks (Agent 1) and had 15~ viewings in that time. In Oct I also bought on-board another agent, for this illustration we'll call them Agent 2.

    Our buyers have also sold their property via PurpleBricks and have a firm rapport and good experience with them. They saw our house online via Rightmove (the PB Premium Listing) and had planned to pursue a viewing once their own sale had progressed to a point where they felt they were strong enough to offer.

    Unfortunately the whole sale has become somewhat muddy because our buyers viewed our house indirectly with Agent 2, prior to submitting a viewing with PB through happenstance. There are 4 houses in the area for sale with Agent 2, they had booked in to see House 1 and were then taken to see House 2, 3, 4, unbeknown to them at the time (they didn't know ours was on with Agent 2, as they're not local) one of those 4 houses was ours, the one they planned to view via PB days later.

    To this day, they have still had no chat, correspondence or booked viewing specifically for our house via Agent 2.

    Two days later they did indeed book to see the house via PB, after which a day or two later we received an offer after some significant chat, both on the viewing and via the PB portal (area, schools, neighbours). After appointing our PB LPE to proceed with negotiations which we also did directly via the PB portal we managed to agree a figure and begin processing the sale.

    Once that was confirmed, I contacted Agent 2 to communicate the sale (but to continue marketing the property) upon which I was asked for the name of the agreed buyer. Rather than be shady here and risk enquiries down the line, I asked Agent 2 for a list of viewings dates/times to date on our property, low and behold our buyers were on the list, 2-3 days before the PB viewing, though as discussed they have never specifically requested to view our house and hadn't planned to view it via Agent 2 as existing customers of PB.

    Agent 2 is now stating we need to either process the sale and pay the commission via them, or, walk away from the buyer, or, process the sale via PB in which case we will still be billed at exchange by Agent 2 for the full amount which we can then refute and push to the ombudsman.

    Agent 2 is still of the belief (why wouldn't they be) that they are the introduced the buyer to the sale, and their activity was pivotal in the sale being agreed. However, as above, I have spoken to the buyer who refute's Agent 2's claim, has stated they had no intention of buying from Agent 2 and more so that there has been no dialogue or conversation specifically about my address over and above them opening the front door on a round of viewings the buyers were essentially unaware of.

    On the other hand PB have a good relationship with the buyer, have done a fantastic job by all accounts selling theirs and have a customer that is loyal to their services. A conversation that took place about viewing ours when the time was right, a more significant and more informative viewing (the agent from Agent2 had just moved in from the area, knew nothing about the schools or amenities, nor how my house operated, how to open the loft etc etc). My buyers argument is that on opening the loft with the PB viewing they firmly understood the potential (700+ sqft) to create 2 more ensuite bedrooms, which utlimately sold it to them along with information I passed on at the viewing about the area, neighbours and so on.

    There's essentially 15k riding on it, so I really want to see if someone has experience or evidence of similar cases.

    If the vendor, the buyer and Agent1 are reasonably clear on the events and the fact the sale would not have happened were it not for PB, then does Agent2 have much of a claim? They've done nothing with this buyer for me to believe so, my 4 year old can open the front door.

    I've asked for Agent2 to catalogue all of the interactions and communications they had with the buyer specifically about selling my property prior to takng next steps.

    Thanks in advance.
Page 1
    • JoJo1978
    • By JoJo1978 4th Dec 17, 1:24 PM
    • 181 Posts
    • 178 Thanks
    JoJo1978
    • #2
    • 4th Dec 17, 1:24 PM
    • #2
    • 4th Dec 17, 1:24 PM
    Summary:

    You have a non-exclusive current contract with both PB and agent 2.

    The terms & conditions of both of your contracts will confirm but you could be liable for full fee or part fee for each agent. That would be typical.

    Trad estate agents will often self regulate so that they avoid a situation where the vendor pays double. Your vendors by taking their actions complicated the situation.

    Your approach of gathering evidence to appeal to their better nature might be the best play. It’s a high fee for the agent 2 to lose though so they may fight for it
    Hamster in the wheel (London) 1999-2017
    Mortgage free since 2015; Pension pot sorted 2017
    Second career (what TBD!) 2018
    • eddddy
    • By eddddy 4th Dec 17, 1:38 PM
    • 5,550 Posts
    • 5,233 Thanks
    eddddy
    • #3
    • 4th Dec 17, 1:38 PM
    • #3
    • 4th Dec 17, 1:38 PM
    It depends what type of contract you have with agent 2 (and exactly what it says).


    Is your contract with Agent 2 sole agency contract?

    If so, you're probably arguing about the wrong contract clause.

    The 'killer' clause is probably something like:

    "You will be liable to pay remuneration to us, in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the property are exchanged...

    ... with a purchaser introduced by another agent during that [sole agency] period."
    From your post, it sounds like PB introduced the buyer during Agent 2's sole agency period - so a fee would be due to Agent 2.


    Is your contract with Agent 2 sole selling rights?

    Again, Agent 2 will be due a fee whoever introduces the buyer.


    Is your contract with Agent 2 a multi agency contract?

    If so, then the arguments in your post might carry some weight.
    • Jahoker
    • By Jahoker 4th Dec 17, 2:13 PM
    • 4 Posts
    • 0 Thanks
    Jahoker
    • #4
    • 4th Dec 17, 2:13 PM
    • #4
    • 4th Dec 17, 2:13 PM
    It depends what type of contract you have with agent 2 (and exactly what it says).


    Is your contract with Agent 2 sole agency contract?

    If so, you're probably arguing about the wrong contract clause.

    The 'killer' clause is probably something like:



    From your post, it sounds like PB introduced the buyer during Agent 2's sole agency period - so a fee would be due to Agent 2.


    Is your contract with Agent 2 sole selling rights?

    Again, Agent 2 will be due a fee whoever introduces the buyer.


    Is your contract with Agent 2 a multi agency contract?

    If so, then the arguments in your post might carry some weight.
    Originally posted by eddddy
    Hi Eddy,

    So, referring to the T&C, I can indeed confirm an 8 week 'Joint Seller Service' window which I feel I've been somewhat mis-sold on.

    postimg[dot]org/image/5iajzzejl/
    Last edited by Jahoker; 04-12-2017 at 8:33 PM.
    • eddddy
    • By eddddy 4th Dec 17, 2:28 PM
    • 5,550 Posts
    • 5,233 Thanks
    eddddy
    • #5
    • 4th Dec 17, 2:28 PM
    • #5
    • 4th Dec 17, 2:28 PM
    Hi Eddy,

    So, referring to the T&C, I can indeed confirm an 8 week 'Sole Seller' window which I feel I've been somewhat mis-sold on. Agent 2 was well aware of PB being in place for months prior and we had firm understanding that both were going to run independently of one other and in competition.

    Reading the agreement in the situation I now find myself in, there's now a very bad taste in my mouth. Here are the pertinent part of the sole selling agreement:

    1. Sole Selling service
    1.1 You hereby undertake not to instruct any other agent during the term of this agreement.
    1.2 To be clear, for the purposes of clause 1.3 below, you hereby agree that private or other agents sales originating before the termination date of the agreement are deemed to have been introduced by us.
    1.3 You will be liable to pay remuneration to us, in addition to any other costs or charges agreed, in each of the following circumstances:
    1.3.1 If unconditional contracts for the sale of the property are exchanged in the period during which we have sole selling right, even if the purchase was not found by us but by another agent, or by any other person, including yourself.
    1.3.2 If the unconditional contracts for the sale of the property are exchanged after the expiry of the period during which we have sole selling rights, but to a purchaser who was introduced to you during that period or with whom we had negotiations about the property during that period.
    -------------------
    8 weeks, 1.4%.
    Originally posted by Jahoker
    (I'm quoting the unedited post, so that peoples answers below makes sense!)

    Yep. Unfortunately, it sounds like the contract is fairly clear, and you owe Agent 2 a fee.

    If you really do feel misled by the agent...

    ...which I feel I've been somewhat mis-sold on. Agent 2 was well aware of PB being in place for months prior and we had firm understanding that both were going to run independently of one other and in competition.
    Originally posted by Jahoker
    ... you could argue that the agent misrepresented the contract.

    But I think that might be a very difficult fight, especially as the written contract is clear (and the agent would probably deny that they said that, or say that you misunderstood what they were saying).
    Last edited by eddddy; 04-12-2017 at 9:50 PM.
    • MobileSaver
    • By MobileSaver 4th Dec 17, 6:52 PM
    • 1,300 Posts
    • 1,781 Thanks
    MobileSaver
    • #6
    • 4th Dec 17, 6:52 PM
    • #6
    • 4th Dec 17, 6:52 PM
    Reading the agreement in the situation I now find myself in, there's now a very bad taste in my mouth.
    Originally posted by Jahoker
    Not what you want to hear but it appears you owe both agents commission. Considering the sums involved you obviously have to take a large part of the responsibility for not bottoming this out before appointing the second agent.

    As JoJo mentioned, traditional high street agents typically sort this out between themselves; they certainly did in my case when I was a buyer of a house on with two agents and where an even higher commission amount was involved, they split it 50/50.
    Last edited by MobileSaver; 04-12-2017 at 9:06 PM.
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    • ThePants999
    • By ThePants999 4th Dec 17, 7:36 PM
    • 904 Posts
    • 1,059 Thanks
    ThePants999
    • #7
    • 4th Dec 17, 7:36 PM
    • #7
    • 4th Dec 17, 7:36 PM
    I'd definitely be complaining about the agent giving you a sole seller contract to sign if that's not what you'd discussed, but you'll never get out of paying them. Read and understand contracts before you sign them, folks
    • G_M
    • By G_M 4th Dec 17, 7:46 PM
    • 42,330 Posts
    • 49,178 Thanks
    G_M
    • #8
    • 4th Dec 17, 7:46 PM
    • #8
    • 4th Dec 17, 7:46 PM
    How can this be miss-selling?

    The contract is pretty unambiguous and clear so when you read it you must have understood what you were agreeing to.
    • Jahoker
    • By Jahoker 4th Dec 17, 8:11 PM
    • 4 Posts
    • 0 Thanks
    Jahoker
    • #9
    • 4th Dec 17, 8:11 PM
    • #9
    • 4th Dec 17, 8:11 PM
    I'll edit the post above, as having checked the facts (I was going on a Docusign draft for the terms in my prior post) of what I signed in the office, the official agreement is for a JOINT SELLING SERVICE - With PB, hastily scribbled over the existing SOLE SELLER SERVICE terms. With the box on the form selected as Sole Seller, and not Multiple Agent, as it should have been.

    Does anybody have any experience of invalidated sales agreements on the basis of them ticking the wrong box and changing the titles on the fly? They've admitted the contract is fundamentally wrong.

    They're also suggesting the won't share any element of the commission with the other party, despite the joint sale. A discussion between Agent2 and PB should have taken place when they signed me up to bottom out the commission element.

    I can't post a link as a new user, but here's a copy of the specific part of the agreement I question:
    postimg[dot]org/image/5iajzzejl/
    Last edited by Jahoker; 04-12-2017 at 8:30 PM. Reason: context
    • eddddy
    • By eddddy 4th Dec 17, 9:37 PM
    • 5,550 Posts
    • 5,233 Thanks
    eddddy
    I'll edit the post above, as having checked the facts (I was going on a Docusign draft for the terms in my prior post) of what I signed in the office, the official agreement is for a JOINT SELLING SERVICE - With PB, hastily scribbled over the existing SOLE SELLER SERVICE terms. With the box on the form selected as Sole Seller, and not Multiple Agent, as it should have been.

    Does anybody have any experience of invalidated sales agreements on the basis of them ticking the wrong box and changing the titles on the fly? They've admitted the contract is fundamentally wrong.

    They're also suggesting the won't share any element of the commission with the other party, despite the joint sale. A discussion between Agent2 and PB should have taken place when they signed me up to bottom out the commission element.

    I can't post a link as a new user, but here's a copy of the specific part of the agreement I question:
    postimg[dot]org/image/5iajzzejl/
    Originally posted by Jahoker
    I'd say you're still clutching at straws.

    I'd read the amendments as allowing you to instruct PurpleBricks at the same time as Agent 2.

    But the contract pretty clearly says Agent 2 gets their full commission whoever introduces the seller. I can't see anything in it that suggests otherwise.


    Edit to add...

    FWIW, I think that every contract I've ever signed with an EA has had changes written on it - either by the EA or me. It doesn't make them invalid.
    Last edited by eddddy; 04-12-2017 at 9:43 PM.
    • saajan_12
    • By saajan_12 5th Dec 17, 9:25 AM
    • 1,010 Posts
    • 678 Thanks
    saajan_12
    I'll edit the post above, as having checked the facts (I was going on a Docusign draft for the terms in my prior post) of what I signed in the office, the official agreement is for a JOINT SELLING SERVICE - With PB, hastily scribbled over the existing SOLE SELLER SERVICE terms. With the box on the form selected as Sole Seller, and not Multiple Agent, as it should have been.

    Does anybody have any experience of invalidated sales agreements on the basis of them ticking the wrong box and changing the titles on the fly? They've admitted the contract is fundamentally wrong.

    They're also suggesting the won't share any element of the commission with the other party, despite the joint sale. A discussion between Agent2 and PB should have taken place when they signed me up to bottom out the commission element.

    I can't post a link as a new user, but here's a copy of the specific part of the agreement I question:
    postimg[dot]org/image/5iajzzejl/
    Originally posted by Jahoker
    Handwritten amendments to a contract are fine, only when two clauses directly contradict eachother (eg the 'Joint selling service heading' v the 'sole' tickbox) then the ambiguity would usually be resolved in favour of the party that did not draft the contract / amendments.

    If it is a sole selling contract then you automatically owe agent 2 the fee. However even under a joint selling contract, if agent 2 'introduced' the buyer that led to a sale, they would be due the fee.
    • Mutton Geoff
    • By Mutton Geoff 5th Dec 17, 9:37 AM
    • 999 Posts
    • 1,042 Thanks
    Mutton Geoff
    Trad estate agents will often self regulate so that they avoid a situation where the vendor pays double
    Originally posted by JoJo1978

    Unless they are part of Countrywide PLC.
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    • Jahoker
    • By Jahoker 5th Dec 17, 9:41 AM
    • 4 Posts
    • 0 Thanks
    Jahoker
    Handwritten amendments to a contract are fine, only when two clauses directly contradict eachother (eg the 'Joint selling service heading' v the 'sole' tickbox) then the ambiguity would usually be resolved in favour of the party that did not draft the contract / amendments.

    If it is a sole selling contract then you automatically owe agent 2 the fee. However even under a joint selling contract, if agent 2 'introduced' the buyer that led to a sale, they would be due the fee.
    Originally posted by saajan_12
    My understanding of a joint selling service is that when instructing the company to market the property there must be a discussion of the terms by which the joint sellers will operate (winner takes all, 50/50 etc) which is underpinned by specific terms, terms written in the agreement after the discussion has taken place - not the terms of a Sole Selling Service which could never satisfy that of a Joint Selling Service.

    On the point of the introduction, the buyers are telling me they held conversations with PB days before apparently viewing the house indirectly with Agent2. The advert with PB was a premium advert, Agent2 was not a premium advert, the buyers are stating they were introduced to the property via this PB advertisement and then expressed verbally a wish to view this property once their chain was further cemented.

    Looking at the terminology, an introduction need not be a physical viewing, but can also be any other form of media advertisement that alerts the buyer to the availability of a house for purchase.

    We'll be seeking some legal representation on the nuances of this, as I refute (as does the buyer, for which this actually makes no difference to - they're not pot invested) the way in which Agent2 has timelined their activity, in fact the buyers have stated in writing their chain of events and have stated Agent2 are not being truthful.

    As a settlement, I would be happy with the principle of paying Agent2 50% of the commission as a maximum, but I will otherwise be speaking to a property lawyer and the TPO.
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