Challenging Estate agents fees..

jordan120

Here is the scenario. A particular estate agent sold my property on my behalf back in November last year. I have raised the following points of complaint via the Ombudsman, and firstly, via their own internal complaints procedure:

I initially had the property on the market via an alternative estate agents and was under offer at 280k. New Agent pitched to me that they could sell my flat quickly, but also (and crucially) at more money than David Philip's due to their better marketing, better process and better clients. New agent therefore overvalued my property to get my business, also charging a higher commission rate than David Philips

New Agent failed to properly assess the quality of the buyer, they didn't have their mortage offer properly approved and were excrutiatingly difficult to deal with.

New Agent failed to properly represent my interests as the seller and failed to act on behalf of me at the critical moments.

Agents handling of complaint - the agents did not actually address my points of complaint at any stage, they simply stated that they had acted properly " as far as they were concerned" - I asked numerous time for an actual response to each of my points, and this was simply ignored in favour of a blanket letter response.

New Agent caused me much undue distress (and costs such as an expensive international phone bill!) by not handling the various backwards and forwards ( as well as negotiations) involved in the exchange and completion. They left me to deal direct with the buyers

Further info:

My complaint boils down to my belief that the agent did not properly represent my interests as a seller, and acted in their own self interest (commission led) in regards to the sale of my properly. Whilst the sale did complete, it completed after I had to personally handle the majority of negotations and backwards and forwards between myself and the buyers, the solicitors etc. Despite the obvious stress, no one from New Agent offered much assistance. For example, my entire holiday in France was ruined by hours and hours of international phone calls dealing with solicitiors etc. I incurred additional hours from my solicitior due to the failure of New Agent to effectively negotiate.

New Agent aggresively sold me into their service on the basis of acheving a higher than David Philips sale price, therefore justifiying their increased commission, This didn't happen, and in fact, the additional costs incurred by me (re-instatement of chimmney breast, solicitors fees, delay in sale etc) total more than £5000. So I therefore ended up actually selling my properly for significantly less than I would have done if I had stuck with my original agent and not been misled by New Agent.

One of the interesting observations here is that New Agent seem to believe that their only duty is the actual completion of the sale (as is noted in the Claim Form they filed against me last week), when actually, according to both their own literature, and the TPO code of conduct, they do have a duty of care to sellers and buyers that goes beyond simply just marketing and selling the property. This is what New Agent failed to do in my situation, causing me massive amounts of stress and extra costs. Furthermore, instead of addressing my complaint properly, they simply wrote blanket letters that don't really address the points. Very frustrating.

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The New Agent has now taken the matter to County Court via MoneyClaimOnline, my complaint is in progress with the ombdusman. I feel I have a legitimate defence, as although the letter of the sevice was delivered (the flat sold), I feel they didn't properly attend to me as a client. The question is really a legal one, namely to understand if I have a legal case outside the Ombudsman, or am I merely going to waste my time?

I might also mention that the deadline to submit my defence to MCOL is by Thursday.



[FONT=&quot]Thanks for any assistance/advice.
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Fire_Fox

Your complaint as you have laid it out in your OP is very vague. Which specific aspect(s) of the contract between you and the estate agent was not completed? Have you taken any legal advice on this matter and what was the outcome? What steps did you take to ensure that the valuation was accurate (?check land registry sold prices) and to check you were going with a reputable agency (?ask around friends and neighbours)? How can you blame an estate agent for a problem with your chimney breast? Why did you opt to holiday in the France at a key point in the negotiations?

jordan120

Legal advice pending at the moment, should have some more info tomorrow morning from my lawyer. By the letter of the contract, the estate agent did deliver a buyer, and the property was sold, but they left me to do much of the legwork, and I belive, due to their inadequate negotation and handling of the matter, cost me many thousands in direct costs, and many thousands in indirect (stress etc).

I was on holiday in the belief that the agents were dealing with the matters, discovered they wern't, and then had to intervene.

What I find amazing is that the whole thing could have been settled by them just apologising and offer some goodwill credit against the fees.

jordan120

And yes they are generally reputable. I didn't expect any issues with them.

pie81

Ultimately you are liable to pay the agent's fee if they introduced your buyer.

You MAY have a counterclaim in damages if you can show that they breached some duty under the contract (express or implied) and that that cost you money. However that is a counterclaim, it does not mean you don't have to pay the fee.

jordan120

So, for the purpoes of them taking me to court for the fees, one could agree to the fees and simply counterclaim for the damages?

bap98189

You seem to be basing your losses on the selling price of another estate agent. That assumes that the other agent would have gone on to sell the house at that price, something which is unlikely in the present environment. As for the repairs you had to do, you would most likely have had to undertake those no matter who sold the house.

I agree with FireFox though, you need to give us more information about what you think the agent did or did not do.

pie81

Yes.

Coincidentally I just used KFH Islington (which I'm guessing is the same branch you used) to sell my flat. They have always handled communications between me and the buyer, not left it to me.

I did find that when the buyers tried to be cheeky with various requests, the agent's first reaction was to ask me if I would agree to the request, rather than telling the buyer they were being cheeky. The agent was a bit of a pushover in that respect and not firm with the buyers at all. So yes I had to represent my own interests in the sale process rather than relying on the agent to do it for me.

However, ultimately if I had agreed to the buyer's requests, I would regard that as MY fault for being soft, rather than the agent's fault for not representing my interests.

Fire_Fox

jordan120 wrote: »

Legal advice pending at the moment, should have some more info tomorrow morning from my lawyer. By the letter of the contract, the estate agent did deliver a buyer, and the property was sold, but they left me to do much of the legwork, and I belive, due to their inadequate negotation and handling of the matter, cost me many thousands in direct costs, and many thousands in indirect (stress etc).

I was on holiday in the belief that the agents were dealing with the matters, discovered they wern't, and then had to intervene.

What I find amazing is that the whole thing could have been settled by them just apologising and offer some goodwill credit against the fees.

You are still being incredibly vague! Buying and selling properties does involve a lot of chasing and can be very stressful, that is the nature of the beast. I don't see how an estate agent can conduct all the negotiations without constant reference to you the vendor, which would naturally have necessitated interrupting your holiday in France.

As you state YOU did most of the negotiating, I can't see how the estate agent's passive approach has cost you thousands, you could equally argue your decision to take a foreign jaunt at a key point in the sale cost you thousands or your poor negotiating skills cost you thousands. Do you have medical records confirming your inability to work due to stress?

jordan120

The agent failed to represent my interests as the seller and left me to effectively fend for myself, with a troublesome first time buyer. My holiday was interupted, not by the estate agent, but the buyer with more first time buyer style queries and troubles; again this is what I'm paying the estate agent for, to take control of the process, and take the stress away from me. If I had wanted to conduct the whole thing myself, I would have simply taken out a private advert!

lincroft1710

Although the agent may not have been as proactive as you believe he should have been, if he was responsible for "introducing" the buyer then he is entitled to his commission.

You no doubt had an agreement with the estate agent that he would find a buyer for your property, which he did. They have kept their part of the agreement.....you apparently have not. Do you think a court will side with you rather than EA?

Although I may be misinterpreting, I get the impression that you are annoyed by the fact that you were persuaded into this agreement, when you should have stood your ground and stayed with first agent.