Estate Agent Help please court action!

chickmug

pinkshoes wrote: »

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?

The solicitors advice we were always given is it revolves around the date, on the paperwork issued, in connection with the sale.

alm721

jenny74 wrote: »

If anyone is due a fee, it is the selling agent of the property that Op's sister went into. The vendor.

The vendor sold privately so their was no agent invloved on their side.

alm721

chickmug wrote: »

Your thread is not that easy to read and digest so I hope I have have got the right story as follows.
Sorry I've not made it very easy to read.

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

Both sole selling and sole agency.

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

Notice was hand delivered on 15th June, 28 days was required so contract ended on 13th July

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

Yes but their cotract states that the fee is due if '' uncondtional contracts are exchanged during the period that they have sole selling rights'' there is no mention of agreeing a sale. Contracts were exchanged at the end of Sept.

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?

It seems that it comes down to the wording of the contract. We assumed 'unconditional contracts being exchaged' means what is normally meant by 'exchange of contracts' is this different?

alm721

pinkshoes wrote: »

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?

Don't know really but I would have thought so.

Ian_W

I don't think clause (b) comes into it from what you've said. The other party didn't have any contact with the EA and the "AND[FONT=&quot] the buyer either received sale particulars from them or had negations with them about the property[/FONT]" rules that out as a possible claim.

I think they are likely to argue, as chickmug says, that under (a) a sale commenced because solicitors were instructed during the agreement period. However, the wording used is "sold" which it clearly wasn't - so your sister should argue that the house isn't sold until completion or failing that exchange of contracts - both of which took place outside the period. Which wins is up to the court, I wouldn't like to say.

Anyway, as you haven't had particulars of the claim within the requisite 14 days why not ring the court, explain this and ask how you go about getting the claim "struck out"? If they don't forward particulars on time, you can't really enter a defence as you don't know the basis of their claim.

Doozergirl

alm721 wrote: »

It seems that it comes down to the wording of the contract. We assumed 'unconditional contracts being exchaged' means what is normally meant by 'exchange of contracts' is this different?

Yes, you're right, it may come down to the wording of the contract but you appear to be contradicting yourself on the wording of that contract. You've apparantly quoted me the wording of their contract using simply the word 'sold' and then saying 'uncondtional contracts are exchanged during the period that they have sole selling rights'
"sold" is ambiguous, luckily for you perhaps, but the sentiment behind a sole selling rights is agreeing a sale within that perio

d otherwise anyone could escape a sole selling rights agreement by giving notice. It's impossible to have both sole selling rights and sole agency. If you were sole agency, you could agree a sale without recourse, sole selling rights, you cannot. It depends on the wording and a judges interpretation of that.

You are not perhaps as clean as you think you are. \it eill depend on their wording as to whether it's clear cut in their favour, or ambiguous. Whatever though; someone knew they were doing what they were doing to escape the fee.

alm721

Doozergirl wrote: »

Yes, you're right, it may come down to the wording of the contract but you appear to be contradicting yourself on the wording of that contract. You've apparantly quoted me the wording of their contract using simply the word 'sold' and then saying 'uncondtional contracts are exchanged during the period that they have sole selling rights'
"sold" is ambiguous, luckily for you perhaps, but the sentiment behind a sole selling rights is agreeing a sale within that perio

Yes you're right I said sold just to try and shorten the message really, it does state as above that ' unconditional contracts are exchanged during the period that they have sole selling rights' sorry for making that confusing.

d otherwise anyone could escape a sole selling rights agreement by giving notice.
Only if the EA did not find the buyer.

It's impossible to have both sole selling rights and sole agency.
How can you tell then? Their contract has both sole agency and sole selling rights sections on it, neither are crossed out?

If you were sole agency, you could agree a sale without recourse, sole selling rights, you cannot. It depends on the wording and a judges interpretation of that.

You are not perhaps as clean as you think you are. \it eill depend on their wording as to whether it's clear cut in their favour, or ambiguous. Whatever though; someone knew they were doing what they were doing to escape the fee.

I don't think its so much as case of 'knowing what they were doing to escapse the fee, more a case of not wanting to pay for something that wasn't done. As I said the buyer knew their house was for sale about a year before this EA was instructed. They only decided that they may be willing to part exchange when they couldn't find anyone else to buy their house and my sister's house was a better option to own from a rental point of view. When they decided that they would cosider this my sister gave the EA notice I don't see how this is 'escaping a fee' as the EA had absolutly no part whatsoever, in bringing about the sale isn't it morally wrong that they should even attempt to claim a fee when they have had no part in a sale?

Thanks for another view anyway, we'll send off the defence and let you all know what happens.

alm721

Ian_W wrote: »

I don't think clause (b) comes into it from what you've said. The other party didn't have any contact with the EA and the "AND[FONT=&quot] the buyer either received sale particulars from them or had negations with them about the property[/FONT]" rules that out as a possible claim.

I think they are likely to argue, as chickmug says, that under (a) a sale commenced because solicitors were instructed during the agreement period. However, the wording used is "sold" which it clearly wasn't - so your sister should argue that the house isn't sold until completion or failing that exchange of contracts - both of which took place outside the period. Which wins is up to the court, I wouldn't like to say.

The actual wording used was 'if unconditional contracts are exchanged within the marketing period' I should'nt have put sold, sorry.

Anyway, as you haven't had particulars of the claim within the requisite 14 days why not ring the court, explain this and ask how you go about getting the claim "struck out"? If they don't forward particulars on time, you can't really enter a defence as you don't know the basis of their claim.

We rang the court yesterday and they advised that we wrote to them explaining that we had not recieved the particulars of the claim and include the letters etc that we've sent them which they have not replied to. We'll send it all off tomorrow and see what happens.

chickmug

You really need to get the right advice on this as I still find it hard to understand everything in the right detail. I doubt if the conveyancing solicitor would be able to give the advice as it is more for a different area of expertise that may be in that firm of solicitors offices used by your sister.

I have never been to, or been taken to court but know many of my associates that have with Sole Selling Rights agreements. The key issue, as I have already said, is if the sale was agreed, and confirmation paperwork issued, before the end of the agreement with the agents i.e 13th July. regardless of the fact they were never involved in the contact/selling to the eventual buyers. Yes I know this type of agreement stinks but the thread is not about the ethics of the contract merely what is your sisters position.

alm721

Well just thought I'd update if anyones interested. It looks like we will be going to court. The case has been stayed a few times as the EA took months to send the particulars of claim which actually turn to to just be their invoice. We still are of the opinion that they are not due a fee so we'll see how it goes. To be honest the court are not really helpful. They've twice sent out wrong paperwork and have now just sent us an allocation questionaire stating that the we've already been sent a copy of the defence? but apparently its ok because because its just a stardard paragragh so we can ignore it! We also only recieved the 'particulars of the claim' (that is the invoice,) this morning but apparently its too late to enter a defence which is odd becuase the paperwork from the court catagorically stated not to enter a defence until the particulars were recieved. . Anyway someone here mentioned that they didn't think you could have a sole agency and sole selling rights contract it should be one or the other (think it was Doozergirl) so if you're still there could you let me know where you thought this?
Thanks