Estate Agent Help please court action!

chickmug

Yes the contract can be Sole Agency and Sole Selling Rights.

A bit from the NAEA Code of Practise is as follows. Whilst it refers to a sale through another agent within six months I have known agents go to court where it is a private sale in this period and who have won. So you may be in the hands of the court?

f) You must give up your rights to any commission if a purchaser first introduced by you goes on to buy the property through another agent, in circumstances where that purchaser was introduced by the other agent more than six months after the date your agency ended.

alm721

Thank-you, just trying to get it all straight. We 'think' that the section of the contract they are trying to pursue is the sole selling rights section b which states:

''If 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 viewed the property or had recieved sales particulars during the period or with whom we had negotiations about the property during that period.''

The person they part ex'd with had no negotiations with the EA's at all. They knew that my sisters house was up for sale months before this EA was appointed as my sister wanted to buy their house but hadn't sold hers, they agreed to wait for her to sell. They were not interested in buying so they wern't on any EA's mailing lists etc, they only reluctantly agreed to part ex as it made financial sense for them to do so rather then not sell at all. Nor did they view the property while this EA had selling rights, on these grounds we think she should not have to pay.

Would anyone else agree or are we really missing something?

Thanks

DVardysShadow

I think it all gets muddy with "They knew that my sisters house was up for sale months before this EA was appointed as my sister wanted to buy their house but hadn't sold hers, they agreed to wait for her to sell." Now which agent was the house your sister bought up with?

alm721

DVardysShadow wrote: »

I think it all gets muddy with "They knew that my sisters house was up for sale months before this EA was appointed as my sister wanted to buy their house but hadn't sold hers, they agreed to wait for her to sell." Now which agent was the house your sister bought up with?

Hi, it wasn't up for sale with any agent. The house my sister bought had a hand made for sale sign in the garden, no agent involvment at all, I not sure how this would affect anything though?

DVardysShadow

What you need to worry about is the evidence they may have - fortunately the house she bought was not with an agent, so no hearsay came out there.

I think that the problem [where it gets muddy] is that your sister's 'pxer' [buyer] was involved before the sole agency came to an end. So agent is assuming he can cash in. I'm not too clear on this, but I think you need to be able to show that the pxer was around before the sole agency. It is still murky because it seems that the decision to do the px was taken during the sole agency.

alm721

Thanks for that , I agree it is a bit murky, however it is ligitamatly the case that the part ex'er 'was around' before the EA's invovment simply becasue my sister wanted to buy their house, (that is the only reason my sister put hers on the market). This I think can easily be proved as the persons she bought from will state this. I can see where you're coming from with the timing of the decision to do the part ex. This may have been when under contract however the wording of their contract states that the fee is due only if the buyer views, recieves particulars or has negotiations with the EA. They honestly did none of these things so our interpretation of this would be that she is ok. If the wording of the contract said agreed a sale then this may be very different but it doesn't so we think? shes ok? Does this seem to make sense?

DVardysShadow

This probably needs to be batted back and forth with the agent before a hearing in order to make a sensible case. An invoice is not adequate as a basis for a claim, but they may be hoping you cave in before a hearing.

An invoice after all could charge you £1000 for balancing a pink ball on the end of their nose. A basis for a claim would be an invoice plus a statement of the particular part of the contract they are relying on. In which case, if it is the bit you refer to, it should be easy to see off a claim, but the less you say to do that the better. Do be sure there is nothing else in the contract - or correspondence - on which they could base a claim.

I am not a lawyer, so get a professional opinion, rather than put my judgement ahead of your own.

Doozergirl

alm721 wrote: »

Thanks for that , I agree it is a bit murky, however it is ligitamatly the case that the part ex'er 'was around' before the EA's invovment simply becasue my sister wanted to buy their house, (that is the only reason my sister put hers on the market). This I think can easily be proved as the persons she bought from will state this. I can see where you're coming from with the timing of the decision to do the part ex. This will have been when under contract however the wording of their contract states that the fee is due only if the buyer views, recieves particulars or has negotiations with the EA. They honestly did none of these things so our interpretation of this would be that she is ok. If the wording of the contract said agreed a sale then this may be very different but it doesn't so we think? shes ok? Does this seem to make sense?

If that is the wording and it is a 'sole agency' contract then there shouldn't be a fee due. It's if she's given away sole selling rights where the wording should be more like sells to 'anyone' not just someone that the EA have had dealings with.

I can't possibly see how a contract can be sole selling rights and sole agency. Sole selling rights automatically covers everything in a sole agency contract so it can be both in that respect but the sole selling rights agreement in it's nature means that the EA is entitled to their fee regardless of who introduced the house to the buyer. Sole agency allows you to sell privately without a fee but not through another agency; though many agents would still try to bill you.

I think you need to post up the exact wording of the contract or a scan of it for us to even have a clue, rather than trying to guess based on tit-bits.

alm721

Ok cannot work the scanner out at all! can scan but not copy into this messages so will post exactly what is stated.

Sole selling rights;
This contract gives us ........ sole selling rights, this means that you will be liable to pay the agreed fee to us in addition to any and other costs or charges agreed in each of the following circumstances.

a. If unconditional contracts for the sale of the property are exchanged in the period during which we have sole selling rights, even if the purchaser was not found by us but by another agent or by any other person including yourself.

Contracts were exchanged a few months after the contract had ended so I think were ok on this point.

' b. If 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 viewed the property or had recieved sales particulars during the period or with whom we had negotiations about the property during that period.''

The purchaser had no negotiations with the EA at any point, nor did they view the property or recieve slaes particulars during this period. They were aware the house was for sale months before marketing with this EA.

The cotract then has a heading as follows;

Sole Agency
This is a sole agency agreement. This means that 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 us during the period of our sole agency or with whom we had negotiations about the property during that period; or with a purchaser introduced by another agent during that period.

The part ex'er was not introduced by any agency so it seems ok here also.

This is all that the contract says regarding fees. As I've said they have not said under which part of this contract they feel the fee is due but I'm guessing probably selling rights part b.

Any thoughts?

chickmug

alm721 wrote: »

' b. If 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 viewed the property or had recieved sales particulars during the period or with whom we had negotiations about the property during that period.''

The purchaser had no negotiations with the EA at any point, nor did they view the property or recieve slaes particulars during this period. They were aware the house was for sale months before marketing with this EA.

This is the bit I see could be the problem as it does not say the purchaser needed to have dealt with the agent if you read through very carefully. See my boldened bit