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Warning to anyone taking their house off market
dave11thnun
Posts: 16 Forumite
Just a warning so that others don't get caught out, like I did, when I took my house off the market last year.
Backround: Put house on market in Feb 08, EVENTUALLY our estate agents found a buyer mid 09. We looked at many houses and put offers in on two houses over the next few months but both fell thru. By Nov 09 we were still not in a position to move out and it didn't look like we would be until after Christmas. So we thought, to prevent our buyer having to hang on any longer we would withdraw from sale so they could find somewhere else, so we did.
4 days before Christmas 09 (nice!) we received an invoice for £1725 from our estate agents.
Now, on the agency agreement it does say in paragraph 2c that we owe them if "a ready, willing and able purchaser is introduced to the property and the terms are agreed and solicitors instructed in writing for the sale in accordance with your instructions whilst we have sole selling rights, or joint selling rights, but you subsiquently withdraw and unconditional contracts for sale are not exchanged."
Fair play, however, just below that, the second sentence of paragraph 3 states "In the even of the property being withdrawn from sale NO CHARGE WILL BE MADE." So I refused to pay.
The estate agent took us to small claims court today and won, as according to the judge, paragraph 2c comes before 3 so therefore it takes presidence over it.
So now we have to find nearly £2k.
We learnt the hard way not to ASSUME that just because it says "NO CHARGE WILL BE MADE" doesn't mean it won't!
Had we known this would all happen, we could simply have left the house on the market and pretended we were still looking for as long as it took for the buyer to get so pee'd off that they pull out to go elsewhere. Therefore no "ready, willing and able purchaser" and therefore no fee to pay - simples!
Fortunately for me though, they hadn't applied initially for interest on the amount so the judge didn't grant it when they asked at the end. Good job really as the interest according to the agency agreement is 3% per calendar month above the HSBC base rate! November 09 - Sept 10 - that's a LOT of money!
Hope that this prevents this situation happening to anyone else stupid enough not to have read the ts & cs properly like us - learn't the hard way!
Backround: Put house on market in Feb 08, EVENTUALLY our estate agents found a buyer mid 09. We looked at many houses and put offers in on two houses over the next few months but both fell thru. By Nov 09 we were still not in a position to move out and it didn't look like we would be until after Christmas. So we thought, to prevent our buyer having to hang on any longer we would withdraw from sale so they could find somewhere else, so we did.
4 days before Christmas 09 (nice!) we received an invoice for £1725 from our estate agents.
Now, on the agency agreement it does say in paragraph 2c that we owe them if "a ready, willing and able purchaser is introduced to the property and the terms are agreed and solicitors instructed in writing for the sale in accordance with your instructions whilst we have sole selling rights, or joint selling rights, but you subsiquently withdraw and unconditional contracts for sale are not exchanged."
Fair play, however, just below that, the second sentence of paragraph 3 states "In the even of the property being withdrawn from sale NO CHARGE WILL BE MADE." So I refused to pay.
The estate agent took us to small claims court today and won, as according to the judge, paragraph 2c comes before 3 so therefore it takes presidence over it.
So now we have to find nearly £2k.
We learnt the hard way not to ASSUME that just because it says "NO CHARGE WILL BE MADE" doesn't mean it won't!
Had we known this would all happen, we could simply have left the house on the market and pretended we were still looking for as long as it took for the buyer to get so pee'd off that they pull out to go elsewhere. Therefore no "ready, willing and able purchaser" and therefore no fee to pay - simples!
Fortunately for me though, they hadn't applied initially for interest on the amount so the judge didn't grant it when they asked at the end. Good job really as the interest according to the agency agreement is 3% per calendar month above the HSBC base rate! November 09 - Sept 10 - that's a LOT of money!
Hope that this prevents this situation happening to anyone else stupid enough not to have read the ts & cs properly like us - learn't the hard way!
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Comments
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I'm more shocked, in this market, that you decided to pull out (which would have no doubt have been difficult for your buyer to swallow) rather than sell and move into rented. Would put you in a much stronger position moving forward.
In my eyes, you're either serious about selling, or your not!0 -
dave11thnun wrote: »Just a warning so that others don't get caught out, like I did, when I took my house off the market last year.
Backround: Put house on market in Feb 08, EVENTUALLY our estate agents found a buyer mid 09. We looked at many houses and put offers in on two houses over the next few months but both fell thru. By Nov 09 we were still not in a position to move out and it didn't look like we would be until after Christmas. So we thought, to prevent our buyer having to hang on any longer we would withdraw from sale so they could find somewhere else, so we did.
4 days before Christmas 09 (nice!) we received an invoice for £1725 from our estate agents.
Now, on the agency agreement it does say in paragraph 2c that we owe them if "a ready, willing and able purchaser is introduced to the property and the terms are agreed and solicitors instructed in writing for the sale in accordance with your instructions whilst we have sole selling rights, or joint selling rights, but you subsiquently withdraw and unconditional contracts for sale are not exchanged."
Fair play, however, just below that, the second sentence of paragraph 3 states "In the even of the property being withdrawn from sale NO CHARGE WILL BE MADE." So I refused to pay.
The estate agent took us to small claims court today and won, as according to the judge, paragraph 2c comes before 3 so therefore it takes presidence over it.
So now we have to find nearly £2k.
We learnt the hard way not to ASSUME that just because it says "NO CHARGE WILL BE MADE" doesn't mean it won't!
Had we known this would all happen, we could simply have left the house on the market and pretended we were still looking for as long as it took for the buyer to get so pee'd off that they pull out to go elsewhere. Therefore no "ready, willing and able purchaser" and therefore no fee to pay - simples!
Fortunately for me though, they hadn't applied initially for interest on the amount so the judge didn't grant it when they asked at the end. Good job really as the interest according to the agency agreement is 3% per calendar month above the HSBC base rate! November 09 - Sept 10 - that's a LOT of money!
Hope that this prevents this situation happening to anyone else stupid enough not to have read the ts & cs properly like us - learn't the hard way!
I would ask the OFT to confirm whether the contract falls foul of the Unfair Terms in Consumer Contracts Regs. They have a procedure to do this. Certainly, 3% a month interest is outrageous, and I think the contract terms are unfair. I'd say you have a good chance with the OFT.No reliance should be placed on the above! Absolutely none, do you hear?0 -
You didn't 'withdraw it from sale' as it wasn't for sale at the time.
You'd received, and accepted an offer, therefore you were 'under offer' and you withdrew at this stage, with your 'ready. willing and able' purchaser in place.
If you'd taken if off the market before finding a buyer, para 3 would apply, but I don't feel it does in the circumstance you've outlined here.0 -
Very well put google. I agree.You didn't 'withdraw it from sale' as it wasn't for sale at the time.
You'd received, and accepted an offer, therefore you were 'under offer' and you withdrew at this stage, with your 'ready. willing and able' purchaser in place.
If you'd taken if off the market before finding a buyer, para 3 would apply, but I don't feel it does in the circumstance you've outlined here.0 -
You didn't 'withdraw it from sale' as it wasn't for sale at the time.
You'd received, and accepted an offer, therefore you were 'under offer' and you withdrew at this stage, with your 'ready. willing and able' purchaser in place.
If you'd taken if off the market before finding a buyer, para 3 would apply, but I don't feel it does in the circumstance you've outlined here.
I would think the same: there are two different circumstances here:
- Removing the property from sale (with no offers accepted on it): no fee or charges.
- Withdrawing the property once an offer has been accepted from willing and able purchasers: the full fees and charges apply.
QT0 -
Yes, would it be worth an appeal on the grounds, as the other poster here suggests, of unfairness of contract? Judges tend to vary in their interpretations and persuasions and sometimes decisions are made simply because of which way the wind happens to be blowing. So you might win. But of course it’s a gamble and a headache. If so then perhaps represent yourself or use a no win no fee solicitor if you can find one except that even so, of course, if the other side contest it and you lose then you could get hammered for five figure costs for their briefs who will charge a grand for every time they burp and £300 for every time their secretary puts a stamp on a letter. So probably not worth the risk unless you really can convince yourself that you actually do have a very strong case. And don’t necessarily believe a solicitor if they tell you that, as however sensible and conscientious they may be they also inevitably having an underlying motivation to create work for themselves rather than turn it down.0
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Sorry but if you're not prepared to move you shouldn't have your house on the market. You are just wasting everybody's time - agents, viewers, surveyors etc etc. No sympathy.0
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OK thanks to those who have posted useful, helpful info, and thanks to those who er...posted their opinions - these were especially useful!
The idea of this post was simply to make people aware that their contracts might be misleading - unless they are an estate agent or solicitor - and to just maybe prevent a similar situation happening to someone else, encouraging people to (VERY) carefully check what they have signed.
I am well aware of my screw up, after all I have to find nearly £2K, so no need for anymore clever remarks please!
We were in a position to move, after all the house went on the market over 1 1/2 years before we pulled out, so we weren't intentionally wasting everyone's time - we wanted to move, we still need to move, however, now can't afford to due to my business suffering greatly over the past year (oh and being £2k in debt now!) so it seemed the sensible thing to pull out.
Both houses we tried to buy fell through - not our fault, we had spent a lot of our time and money on surveys and the solicitor and mortgage advisor's fees, (not sure how I wasted their time - they got paid!) so we were no longer in the position we were at the begining of 2008, and to avoid wasting the buyer's time we pulled out - he has since bought somewhere else and is fine - I still see him regularly.
I sure will think twice about using an estate agent when we do recover from this and try to move house again - after all, I found the buyer in the first place after over a year of two viewings from the estate agent - and I will certainly think twice about trying to help other people by posting my experience on a forum, if all I am going to get is clever comments.0 -
The difference between the 2 clauses has been explained well above.
These are fairly standard terms.
Look at it from the EA's viewpoint: they spent money photgraphing and advertising your property; they spent time showing people round; they negotiated on price on your behalf; they 'earned' their fee.
And then you decided to pull out. Why should they not get paid for doing everything you asked them to do.0 -
The difference between the 2 clauses has been explained well above.
These are fairly standard terms.
Look at it from the EA's viewpoint: they spent money photgraphing and advertising your property; they spent time showing people round; they negotiated on price on your behalf; they 'earned' their fee.
And then you decided to pull out. Why should they not get paid for doing everything you asked them to do.
They will remove these terms if you ask them to.No reliance should be placed on the above! Absolutely none, do you hear?0
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