Foul Play/case for legal action

JQ.

Again, no new information there. You do realise the phone call from the EA to you accepting that you had transfered the instruction to TW was the end of your contract with the EA. It's a pain they did not confirm it in writing, but does not mean the contract had not ended.

If you had all these interested parties looking at your house why on earth did you sign the px agreement without first offering it to those parties at £140,000? I'm sorry but you are still in the position you have always been - you made bad choices when it came to selling your house and buying a new one and with hindsight it has cost you financially. There is no-one to blame, the choices were yours to make.

Have you taken legal advice?

GDB2222

badaz52 wrote: »

At no point was our prior contract ended in writing by the EA.

Could your PX deal with TW be construed as giving notice? For example, you have mentioned TW 'taking over' the marketing? Precise wording of the PX deal is important here.

The other interesting thing to note here and I will be taking up this complaint directly with TW also is they DID NOT introduce the buyer who purchased the property, they were already introduced and had viewed the property twice. I believe that when she came back into the picture TW should have informed us and asked us what we wanted to do as technically we introduced her to them.

TW had no such duty, unless it was enshrined in the PX deal. It does not matter whether you introduced a buyer to TW or they found the buyer themselves.

I don't think that TW had any duty to you, and I think you are wasting your time pursuing them.

The EAs did have a duty to you, and as everyone keeps saying the ONLY question you need to bother with is whether your contract with the EA had ended by the time they got an offer for the property? If it had ended, you have no case, whilst if it had not ended they have no defence.

Your signing a PX deal with TW would not automatically end the EA agreement, but there might be something in the wording of the agreement that helps the EA's case, particularly if TW 'took over' the marketing.

If you want any more help from this group, you will need to post the terms of the PX agreement here. Otherwise, you will need the paid help of a solicitor.

badaz52

GDB2222 wrote: »

I don't think that TW had any duty to you, and I think you are wasting your time pursuing them.

The EAs did have a duty to you, and as everyone keeps saying the ONLY question you need to bother with is whether your contract with the EA had ended by the time they got an offer for the property? If it had ended, you have no case, whilst if it had not ended they have no defence.

Your signing a PX deal with TW would not automatically end the EA agreement, but there might be something in the wording of the agreement that helps the EA's case, particularly if TW 'took over' the marketing.

If you want any more help from this group, you will need to post the terms of the PX agreement here. Otherwise, you will need the paid help of a solicitor.

With regards to "marketing" the PX agreement stated this and nothing more, again I will post the rest of the px agreement up today for you to look at:

This is exact wording:

"We have instructed <name of EA> to market the property on our behalf" it does not mention how it affects prior arrangements nor does it say we need to end any prior arrangements (Barratt's PX scheme does say you must end prior arrangements, just for reference, generally all the PX schemes are similar, so you would expect something along these lines there is nothing.

badaz52

As promised here are the exact wordings of the PX agreement and our contract with the EA:

Terms of contract EA July 2010:

1. Sole Agency commision will be 1% plus VAT of the eventual sale price of the property. You will be liable to pay renumeration to us, in addition to any costs or charges agreed, if at any time unconditional contracts of 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.

2. Our agency will stay in force until further notice. It may be discontinued at any time upon your giving us 21 days notice in writing.

3. If we are not your sole agent and we are successful in finding a buyer we will charge 1.5% plus VAT of the eventual sale price of the property.

4. The commision will be due on exchange of contracts with a purchaser but payable from the proceeds of the sale on completion.

5. Our commision charge is inclusive of all fees and expenses, except where you specifically authorise us to carry out expenditure in respect of, for example national advertising.

6. Should these instructions be terminated and the property subsequenty sold by the vendor within a period of 6 months to a purchaser previously introduced by us during the time of our appointment the commision, at the rate shown will be paid in full.

GDB2222

And teh terms of the PX agreement, or do you have RSI from typing that lot out?

badaz52

PX Agreement terms May 2011:

Our offer is made strictly subject to the following:

1. Your purchase of the TW property at the agreed price shown on the Sales Advise Note with exchange of unconditional contracts within 28 days.

2. Your property being viewed by authorised TW personnel. This may include internal and/or external viewing but you will be notified in advance should access be necessary.

3. A satisfactory homebuyer survey, the surveyor will contact you directly to arrange convenient access.

4. The legal title relating to your property must be to the company's satisfaction. Please ensure that your solicitor calls in all of the necessary documentation (including title deeds) for your property and forwards them to our legal department at the above address within 14 days of acceptance of this offer in order that we may achieve an exchange of contracts within the required time scale.

Should the legal title not meet the company's criteria, we will refund to you just half of your reservation fee. Any other costs incurred by you on the transaction prior to the company excercising this right will be your responsibility.

We have instructed <name of EA> to market <address of property> on our behalf you will be responsible for any fees to date.

5. Your permission must be given for reasonable access to your property, by prior arrangement, by our appointed estate agents. This will be necessary in order to prepare sales details for advertising and marketing purposes, to erect their standard "For Sale" board and to allow prospective purchases to view.

6. In the event that following acceptance of this offer and clearance of our Homebuyers Survey, you decide not to proceed for any reason and withdraw prior to exchange of contracts, your reservation fee will not be refunded. In addition, if a buyer had been found by ourselves or our instructed estate agents by that stage and should you decide to pursue a sale to the buyer independently, you will be liable for the agents fees for the introduction of the buyer and also liable to reimburse TW all marketing and selling costs incurred by them (3% of the sale value in total).

7. If your property has gas central heating or any other gas appliances, it will be necessary to have a service done on these if one has not already been done within the 12 months prior to legal completion. A copy of this service report will need to be sent to the undersigned before exchange of contracts.

8. You will be required on exchange of contracts to pay a deposit of 10% of the difference in prices between the TW home and your current home.

9. On legal completion of the sale of your property to TW. The company will retain the sum of £1000 from the completion monies and will then carry out an inspection of your property. Provided that it has been vacated and left in good order throughout with all items included in the sale remaining, the aforesaid £1000 will be refunded directly to our solicitor within 10 working days of legal completion. If however the property is left in a condition which requires action by the company, the cost will be met from the retained sum of £1000 after which any balance will be refunded to you.

A few further things to note:

Point 1 - We did not exchange contracts within 28 days following the px acceptance, things were running late and exchange was either the same day as completion or the friday before.

Point 5 - A for sale board was already erected.

Point 6 -Buyer was already introduced by our instructed EA's, no offer had been made at this stage. Following this acceptance no one viewed the property at all, again buyer was already in place and offer must have been accepted without our knowledge.

Point 7 - Originally asked us to have an electrical inspection, there were items that needed addressing but TW did not push this and did not respond, again they didn't need to as buyer was lined up so it was not their concern anymore.

Point 8 - Was never asked to pay a deposit, probably due to exchange/completion being so close or on the same day.

Point 9 - TW retained the sum of £1000 although purchaser had moved in, highly unlikely that they inspected the property but retained £1000 anyway, we now have this back.

lincroft1710

badaz52 wrote: »

A few further things to note:

Point 1 - We did not exchange contracts within 28 days following the px acceptance, things were running late and exchange was either the same day as completion or the friday before.

Point 5 - A for sale board was already erected.

Point 6 -Buyer was already introduced by our instructed EA's, no offer had been made at this stage. Following this acceptance no one viewed the property at all, again buyer was already in place and offer must have been accepted without our knowledge.

Their terms don't state they have to inform you if they had found a buyer. The offer by Mrs X wasn't to buy a house owned by you, but a house which at point of sale would be owned by TW. If you decided to sell to their buyer it would cost you 3% approx £4,400, plus EA fees of £1,400.

Point 7 - Originally asked us to have an electrical inspection, there were items that needed addressing but TW did not push this and did not respond, again they didn't need to as buyer was lined up so it was not their concern anymore.

Point 8 - Was never asked to pay a deposit, probably due to exchange/completion being so close or on the same day.

Point 9 - TW retained the sum of £1000 although purchaser had moved in, highly unlikely that they inspected the property but retained £1000 anyway, we now have this back.

None of the points you raise really have any relevance, TW have laid down terms and conditions you should adhere to and if you don't they could then say you have broken them and the contract is at end.

Note could, if TW want to turn a blind eye to any aspects of the contract you fail to adhere to, that's their decision. Only if TW had disadvantaged you financially by doing this would you have cause for complaint, e.g. you incur extra expenditure in your transaction with them. Note you were free to negotiate your own sale outside of this transaction, but would have to pay TW's marketing costs.

GDB2222

you will be liable for the agents fees for the introduction of the buyer and also liable to reimburse TW all marketing and selling costs incurred by them (3% of the sale value in total).

Personally, I would not have agreed to that, but seeing as you did it reduces any potential damages considerably.

badaz52

It does reduce potential damages but based on the price my next door neighbour paid for his i would still be in a better financial position if I had paid the 3% and pursued independently. Having said that I could argue that TW never introduced the buyer and they did not market the property anywhere else.

Mrs x also committed to the sale with TW and must have exchanged contracts prior to TW owning the property is this even legal? The time scales don't add up.

Is there anything to go off here that could help my case?

lincroft1710

badaz52 wrote: »

tw did disadvantage us financially as they scraped every last penny out of us due to letting us believe they had no buyer.

I don't understand this, you had pre agreed the prices on the PX deal before TW started marketing. TW had no obligation to inform you they had a buyer lined up. They didn't disadvantage you financially in the transaction (the part exchange) as you had no additional costs.

Mrs x also committed to the sale with TW and must have exchanged contracts prior to TW owning the property is this even legal? The time scales don't add up.

It's possible to exchange and complete on the same day. There also could have been a conditional contract in place "Mrs X agrees to buy 1 High St for £140K on 31 Aug 11 from TW providing that they own the said property on that day". The sale to Mrs X would only have been "illegal" if TW didn't own the property at the time they received the money for it.

Is there anything to go off here that could help my case?

I can't see anything in your dealings with TW that says they acted outside the law. They may have maximised their profits, but that's why they're in business.