Selling house privately although listed with agent

flea72

we had our house on sole agency too, but still had to pay the estate agent. if there is a board up outside your house, or it has been advertised anywhere, the estate agency has the comeback that the person saw their advert, and therefore they were the introduction to the property, so therefore responsible for finding a seller.

trying to disprove this, once your house has been openly advertised, means its unlikely that you can then claim that you found your own buyer, been there, done that.

Flea

BFJ

[/QUOTE] The only thing you need to review is whether your sole agency contract has a term including the phrase "ready, willing and able buyer...". This clause does not change the rule that the agent can't charge you on the sale to a private buyer, but it does mean that if the agent introduces their own buyer, who is ready and able to proceed with the sale, that's all theyneed to do to earn their commission - even if you don't sell to that buyer.

As long as you don't have this clause, you are in the clear as far as private buyers are concerned. You should never accept this type of (unfair but legal) clause in an agents contract and make sure it is struck out before signing any such agreement with an agent.[/QUOTE]

Our agreement does include a 'ready, willing and able' buyer. It states 'a purchaser is a ready, willing and able' purchaser, where solicitors have been instructed in the sale'. This suggests that if solicitors haven't been instructed then we don't have to worry about that? If it was the case the fee is £350 + vat, not whole fee.

BFJ

flea72 wrote:

we had our house on sole agency too, but still had to pay the estate agent. if there is a board up outside your house, or it has been advertised anywhere, the estate agency has the comeback that the person saw their advert, and therefore they were the introduction to the property, so therefore responsible for finding a seller.

trying to disprove this, once your house has been openly advertised, means its unlikely that you can then claim that you found your own buyer, been there, done that.

Flea

I see the point here, but guess it's to do with who has the onus of proof. In our case with our neighbour, we'd already told we were selling before listed with agent. Contract actually states we will be liable to pay fees:
'with a buyer introduced by us during the period of our sole agency or with whom we have had negotiations........'
' with a buyer introduced by another agent during that period'

Can't see how they can claim fees with our private seller who's had nothing to do with them. By their own words they can't.....

courtjester

flea72 wrote:

we had our house on sole agency too, but still had to pay the estate agent. if there is a board up outside your house, or it has been advertised anywhere, the estate agency has the comeback that the person saw their advert, and therefore they were the introduction to the property, so therefore responsible for finding a seller. Trying to disprove this, once your house has been openly advertised, means its unlikely that you can then claim that you found your own buyer, been there, done that.

Sorry to hear that, but it sounds like you were badly advised or just believed the agents bullying tactics. You don't have to 'disprove' anything. The onus of proof is on the agent to PROVE that they are entitled to their commission under the terms of their contract. They cannot just 'assume' someone must have seen their for sale sign or any of their advertising - that wouldn't stand up in court. The agent must be able to show proof of their introduction - as a minimum one would expect that the buyer they claim to have 'introduced' had registered with them and had a viewing arranged through them.

It is quite a common and lazy trick for agents to suggest that buyers approaching vendors direct must have seen their for sale sign etc, but that doesn't make it fact and without evidence how could they prove anything?

If you sell privately to someone who has not registered or been introduced through your agent, you will have your own audit trail of communications, dates of viewings, how they found your property (through your own marketing in newspapers, private sale websites etc...). Clearly, the agent will have NO information about this buyer and therefore could not claim to have introduced them....

NB - I am not advocating defrauding of estate agents - if indeed a buyer out of the blue knocks on your door having SEEN the agents for sale sign outside, it is right that they are referred to the agent for proper registration and the agent is paid for the introduction. This is completely different from a buyer being found through a true private source, such as your own advertising.

Even better, don't have the agents sign outside your house, put your own one up - they are incredibly effective and if you are running private marketing as well as using an agent, why let the agent have the one of the most valuable tools....:cool:

courtjester

Our agreement does include a 'ready, willing and able' buyer. It states 'a purchaser is a ready, willing and able' purchaser, where solicitors have been instructed in the sale'. This suggests that if solicitors haven't been instructed then we don't have to worry about that? If it was the case the fee is £350 + vat, not whole fee.

The definition given in your contract is slightly different from that required by law, which refers to a purchaser being "ready, willing and able...." to exchange unconditional contracts... which is open to interpretation but the wording of yours makes it easier to establish.

flea72

courtjester wrote:

If you sell privately to someone who has not registered or been introduced through your agent, you will have your own audit trail of communications, dates of viewings, how they found your property (through your own marketing in newspapers, private sale websites etc...). Clearly, the agent will have NO information about this buyer and therefore could not claim to have introduced them....

but, that would mean an estate agent would never be paid, as every customer would then just go knock on the door of any house that has a board up. By putting their board up, they are inviting interest, whether you make that directly in person with the EA or go direct to the home owner, still means the EA have introduced a client to you.

i was not misinformed on how this works, my contract was worded identical to the OP, and my solicitor said i didnt have a leg to stand on. the EA had invited interest that had resulted in the sale of my property, the fact i sold to my BiL who obviously didnt approach me through the EA, meant i was still liable for their fees. the only way we could find to avoid the fees, was to take the property off the market, and then make the sale. obviously slowed down the sale process, due to tie-ins, but we got around it eventually.

Flea

courtjester

flea,

Your comments are conflicting - you say that your brother in law didn't approach your agent, but you also say that the agents "...had invited interest that had *resulted* in the sale of my property..."

If you sold privately to a family member who was not aware of the agents marketing, then in that case the agents marketing did not 'result' in the sale...

What were the facts?

Taking your property off the market would not (legally) get around liability to the agent for their commission if the sale went to a buyer originally introduced by your agents during their period of sole agency....