Foul Play/case for legal action

JQ.

sonastin wrote: »

How close to completion did you ask? If it was in the last week, I agree that there is something amiss. If you stopped asking as you got closer to completing on your own house, they may have been telling the truth. This buyer might have come through late on in the process by which time you'd stopped asking.

I think the OP is right in that not everything in this transaction happened entirely as it should from the information supplied but I think that the mistakes and misunderstandings are geniune; I don't think there is any sort of conspiracy to deceive or defraud. I also think the OP is equally culpable in that there is a lot more that he could have done to help himself during the sale process. Hindsight can be a painful thing.

I don't see this as relevant. Once the OP had signed the PX agreement and agreed that the developer could market their property the EA was acting on behalf of the developer not the OP, it would therefore not be the EA's responsibility to update the OP and it would not be the developer's responsibility either.

OP - did you instruct the EA's to reduce the marketing price of the house to £140k or was it TW?

GDB2222

JQ. wrote: »

I don't see this as relevant. Once the OP had signed the PX agreement and agreed that the developer could market their property the EA was acting on behalf of the developer not the OP, it would therefore not be the EA's responsibility to update the OP and it would not be the developer's responsibility either.

OP - did you instruct the EA's to reduce the marketing price of the house to £140k or was it TW?

There's really only one question worth asking in this case: Was the EA's contract with the OP still in force or not? If it was, they had a statutory obligation to pass on any offers received on the house, and the OP has demonstrated that he suffered a substantial loss as a result of that.

JQ.

GDB2222 wrote: »

There's really only one question worth asking in this case: Was the EA's contract with the OP still in force or not? If it was, they had a statutory obligation to pass on any offers received on the house, and the OP has demonstrated that he suffered a substantial loss as a result of that.

Well it's my view that it wasn't. They agreed to sell to 3rd party outside the agreement with EA, they then signed an agreement passing the responsibility for the marketing of the property to that 3rd party. That 3rd party then took over the marketing of the property (ie the contract with the EA). It would appear the OP then had no further contact with the EA, other than to answer some questions about the property. If the contract was still in force then presumably the OP paid the EA fees?

And they have most definitely not proved they have made a loss -
the op agreed to pay £199,995, the developer agreed to sell at that price, a Chartered Surveyor valued the property at £199,995 and the OP's mortgage company agreed with them all. I've no doubt that the neighbours who paid £183,000 are now thinking their house is worth £199,995. Which value is correct is up to an expert to decide, and it appears that at least one expert believes it's £199,995.

GDB2222

JQ, the thing is that a typical agency contract will say that the contract can be terminated by say 2 weeks notice in writing.

JQ.

. . . and when the OP agreed to sell the property outside that contract, with no fee due to the EA, you consider that contract remained in place. And when the EA was presented with an agreement signed by the OP passing the responsibility for marketing the property to the developer (with a reservation fee having been paid), you again believe the contract remained in force. And when the OP failed to pay the fees due under that contract, you still consider it remained in place. So exactly at which point did the the contract cease, because that must have happened at some point prior to the sale as the OP has not paid the fees.

I'm confident of my opinion, so the only way to find out for sure is for the OP to seek legal advice, and let us know how they get on. There's already been an opinion expressed by a conveyancing solicitor in this thread, who does not see any issues. Perhaps a different solicitor will have a different opinion.

GDB2222

JQ. wrote: »

. . . and when the OP agreed to sell the property outside that contract, with no fee due to the EA, you consider that contract remained in place.

Yes, I do. EA contracts specifically cater for the owner finding a buyer through another source.


And when the EA was presented with an agreement signed by the OP passing the responsibility for marketing the property to the developer (with a reservation fee having been paid)

That's just plain wrong. The PX agreement allowed TW to market the property alongside the OP. It did not stop him continuing to market it himself.

, you again believe the contract remained in force.

Yes, unless the EAs terminated it.


And when the OP failed to pay the fees due under that contract, you still consider it remained in place.

Yes, the EAs did not perform their duty, so of course they are not due a fee. Any damages payable by them will ofc have to take their fees into account.


So exactly at which point did the the contract cease, because that must have happened at some point prior to the sale as the OP has not paid the fees.

It didn't cease, but the EAs did not perform their duty (see above).


I'm confident of my opinion, so the only way to find out for sure is for the OP to seek legal advice, and let us know how they get on. There's already been an opinion expressed by a conveyancing solicitor in this thread, who does not see any issues. Perhaps a different solicitor will have a different opinion.

Yes, the OP needs a litigation solicitor.

We're really agreed on the one fundamental question worth asking in this case: Was the EA's contract with the OP still in force or not? We just don't agree on whether it was or not. I am not a solicitor, so would be very interested to hear what the OP is advised.

evoke

Has the OP tested all of this out in the legal world?

As far as I can see, the OP wants to have his cake and eat it too. He had his property for sale with an EA with no buyers. He then decided to part-exchange his property for a new property with a developer for £140K. That is what he agreed to and that is what he got. End of story. He got £140K in part-exchange for his property. The ins and outs of what happened in the background are completely irrelevant, IMO. The OP agreed to a part-exchange value with a developer. Nobody forced the OP to agree to this. It was a voluntary decision made by the OP and one which he now appears to regret.

I'm sorry but I can't see what the OP is complaining about!

badaz52

As most of you mention that in law things are sometimes implied.

The PX agreement was for TW to market my property at a reduced price and to offer me the sum of £140,000 on completion of the new plot. I accepted but this was not binding till the 26/08/2011 (exchange of contracts) so anything could change and the property was still "mine" to sell and not theirs. I only gave them permission to get involved with marketing it and they chose to continue with my EA and like I said at this stage it had not been sold to anyone.

The other thing to be mindful of here is I don't believe my contract with the EA ended at all, as the advertisement was amended from £165,000 to £140,000 and specifically said massive price drop of £25,000. If it was now a new contract between the EA and TW it wouldn't need to say this would it? it would simply just have the new price.

I've made a few appointments and have sent a letter of complaint to the EA and they have told me they are forwarding the letter to TW to see what they say.

Like you so commonly say, "anyone" can offer anything for sale with or without permission and with whoever they choose but the final decision is with the owner and up until the 26/08/2011 (Exchange of contracts) I was not informed that anything had changed, as in there was no buyer. Because this detail was missed out I was prevented from negotiating a better deal and in my case this could have been similar to my next door neighbor.

Just to finish up the PX agreement does not mention how much I would be paying for the new build. The only reason TW told me the house price could not be reduced is that their PX policy states that you have to be trading up by at least 70% so £140,000 and £199,995 is the only way they could do it.

After the PX agreement was signed my partner told the EA, although not in writing that we had not completely given up hope of a private buyer and would rather pursue that if anything came along.

What I believe has happened is the EA passed the offer on in writing before exchange of contracts to TW as they were acting on our behalf (middle man). The EA probably assumed that the offer would be put to us too but it wasn't. TW accepted the offer and forced everything through. The EA just went along with it because they assumed TW had all the rights to do this but they didn't as like I said the house still belonged to me at this point. I only agreed for them to market it at the reduced price until completion of the new build. Any final decision was mine and I was prevented from doing anything.

Prior to exchange of contracts if a different offer was on the table and I still owned the property, surely I should have been consulted by the EA?

When I signed the PX agreement, I agreed to two things only:

A) For TW to give me the sum of £140,000 on completion in part exchange for the new build.
For TW to market the property with the same EA on my behalf for the reduced price of £140,000.

Therefore my original contract with the EA must still have been valid. Who paid the fees is irrelevant to the EA. I mean anyone can put their house on the market and have someone else pay the fees if they have agreed to do that, that's all I did.

JQ.

Nothing new there really.

It boils down to 2 things:

1) Your EA considered their contract with you terminated. Whilst anyone can market anything, they can't market the same thing on behalf of 2 different people who have 2 different goals at the same time, that's a conflict of interest. On the basis that you'd signed a document handing over responsibility for the marketing of the property to TW, I've no doubt the EA considered TW their client and not you. If you wanted your EA to continue marketing the property on your behalf you should have not permitted TW to use them and get them to use a different EA. You being the owner is irrelevant to the formal offers being received, as the EA considered that TW were their client.

2) There is no loss - You agreed to pay the price you paid, if you felt it was too high you should not have paid it and being told the price is not negotiable is no excuse.

I would imagine the only recourse you have is that if you had a Homebuyers or Full Survey completed, you investigate if the valuation was negligent and sue the Surveyor, after all they provided independent advice that the price you were paying was at market level. I really don't think you have any case against the EA or TW.

Please can you let us know know how you get on with the legal advice, It'd be very interested to know how it all works out.

badaz52

This is from the Direct.gov website:

Estate agents’ obligations to pass on offers:

Under the Estate Agents Act, an estate agent is legally bound to present any offer promptly and in writing to the person selling the house (not marketing). This must happen unless the seller has said in writing that there are some offers they don’t want to receive, e.g. those below a certain price.

A buyer's offer is not legally binding in England and Wales, even if it's accepted by the seller. This means the agent is legally obliged to pass on "any" "other" offer received for the property up to when contracts are exchanged

Right there in black and white, TW's PX offer of £140,000 was not legally binding until exchange of contracts even though I accepted it. In the meantime "another" offer came in and the agent did not pass this offer on end of story.

The arrangements were conflicting as neither us or the EA formally ended our prior agreement. The EA agreed to continue marketing the property on behalf of two people and only maintained contact with regards to offers with one party, in this case the marketer not the seller.

For this to work I will have to prove the exact date of exchange of contracts, I think it was very close to completion as TW were on the phone to hurry things up but our solicitor was holding things up.

Exchange and completion were either the same day or exchange was a few days before, def no time to secure an onward sale to the new owner that's for sure unless it was done before we exchanged ourselves.