Estate Agent Help please court action!

alm721

Hi there, I'm trying to get some advice for my sister, I'll try and keep it short

Basically she put up house with estate agent 1 a year ago. During this time she found a house she wanted to buy but could'nt proceed until she sold hers.

After several months she gave estate agent 1 notice and instructed estate agent 2.

After several more months the people selling the house she wanted agreed to part ex. She gave estate agent 2 notice waited until the notice period was up and then part ex'd. (The people she had part ex'd with had no contact with either EA)

She has now recieved an invoice for the sale fee from estate agent 2.

We have written twice now to EA2 2nd time by recorded delivery stating the reasons that we think this is not due. Under either sole selling rights or sole agency rights they are not due the fee as far as we can make out.

In the letters we sent we quoted their contract and demonstrated why the part ex does not entitle them to a fee.

They have ingored both letter and issued court proceedings.

We have filled in the part that gives 28 days for a defence as we have still not recieved the particulars of claim. (It is over the 14 days in which they were supposed to forward them).

So we are now just wondering what to do.

The court documents say not to complete a defence until we have recieved the particulars of the claim so do we just do nothing until they send them? I'm worried that the court will wait the 28 days and then assume we are not responding?

Any ideas?

Thanks

Doozergirl

Call the court for advice on whether to return the paperwork. That's what they're there for

Perhaps they are trying it on if they've not filed the relevant paperwork. It won't reflect well on them either if they're not conversing with you at all.

Under different circumstances we were sent a photocopy of court paperwork by a company; it was just a bullying tactic. They didn't take it any further.

How long after the end of the notice period did they exchange contracts and was it sole agency or a sole selling rights contract?

alm721

Hi, funny you should say that as it is actually a photocopy that they've recieved. They were under sole agency and sole selling rights. As far as we can make out sole agency rights only come into play if another agent found the buyer which they didn't. And sole selling rights only if you either sell during the contract period to anyone or if you sell after the contract period to someone that they introduced. Neither of these were the case. I think they exchanged contracts about 2 months after giving notice. (They were required to give 28 days notice). I will ring get them to ring the courts tomorrow though.
Thanks

zzzLazyDaisy

Are the court papers actually stamped by the court? It is a common tactic to sent unstamped court papers - which are not worth the paper they are written on.

If the papers are stamped by the court, but the particulars of claim are not attached or forwarded within the relevant time period, the defendant can ask the court to strike out the claim.

Phone the court and get advice.

Good luck

Trollfever

http://www.hmcourts-service.gov.uk/news/forms/docs/ex303_0406.pdf

alm721

Thanks for that. The papers have been stamped. I'll go and read that link now.

Doozergirl

But they arguably did 'sell' to someone within that period didn't they?

I think the fee is due if they've signed a sole selling rights agreement. It's about agreeing a sale that then completes. Giving notice to avoid the fee isn't what it's about. I've taken a house in part ex where they had to pay the fee - I had no contact with their agent at all but they signed a sole selling rights agreement (and there was me thinking they'd save some money :rolleyes:)

Don't agree with the sole selling rights contract at all, but then I wouldn't sign one

alm721

How do you mean they did sell to someone within the period?They didn't do anything regarding the sale Do you mean the sale was agreed whilst still in contract? I've put below what their contract says regarding sole selling rights.

Does it still sound like they should pay? The EA did offer to accept half the fee when my sister refused to pay so I think they have some doubt as to whether they are entitled to it.

Anyway this is what their contract said.

1.[FONT=&quot] [/FONT]Sole Selling rights (a)

[FONT=&quot]The house is sold whilst they have sole selling rights even if the buyer was not found by them. [/FONT]

(I'm assuming they no longer have sole selling rights when they have been given notice and that period has elasped otherwise they could be claiming fees years down that line, ins't that the point of the notice period or am I reading it inccorectly?)

1.[FONT=&quot] [/FONT]Sole selling rights (b)

[FONT=&quot]If unconditional contracts are exchanged after your sole selling rights period and the buyer either received sale particulars from them or had negations with them about the property[/FONT].

This seems to be the clause where they can claim their fee if you sell to someone they found after the notice period has ended. They didn't find the buyer so this does not apply?

Thanks again

jenny74

Doozergirl wrote: »

But they arguably did 'sell' to someone within that period didn't they?

But that's the point, the EA didn't sell the property, they didn't introduce them at all. As I read it the vendor of the house they wanted then decided to do a part ex. If anyone is due a fee, it is the selling agent of the property that Op's sister went into. The vendor.

chickmug

alm721 wrote: »

How do you mean they did sell to someone within the period?They didn't do anything regarding the sale Do you mean the sale was agreed whilst still in contract? I've put below what their contract says regarding sole selling rights.

Does it still sound like they should pay? The EA did offer to accept half the fee when my sister refused to pay so I think they have some doubt as to whether they are entitled to it.

Anyway this is what their contract said.

1.Sole Selling rights (a)

[FONT=&quot]The house is sold whilst they have sole selling rights even if the buyer was not found by them. [/FONT]

(I'm assuming they no longer have sole selling rights when they have been given notice and that period has elasped otherwise they could be claiming fees years down that line, ins't that the point of the notice period or am I reading it inccorectly?)

1.Sole selling rights (b)

[FONT=&quot]If unconditional contracts are exchanged after your sole selling rights period and the buyer either received sale particulars from them or had negations with them about the property[/FONT].

This seems to be the clause where they can claim their fee if you sell to someone they found after the notice period has ended. They didn't find the buyer so this does not apply?

Thanks again

Your thread is not that easy to read and digest so I hope I have have got the right story as follows.

1) It seems like it is a 'Sole Selling Rights' Agreement?

2) Notice was served to end the agreement by xx Date?

3) Was the sale/part ex agreed (solicitors instructed) before the xx date above?

If I have the correct facts as outlined above and if the answer to my question 3 is yes it seems the commission is payable. It doesn't surprise me if the agents are offering to do it cheaper and it may be the cheapest route to go?

pinkshoes

Wouldn't the estate agent have to prove that you'd decided to part X BEFORE the contract ended with them, rather than you ending their contract (due to no confidence/no viewings etc...) and THEN getting the offer (out the blue) to part x?