Foul Play/case for legal action

Thrugelmir

badaz52 wrote: »

I'll do that today, as you have all pointed out that the PX agreement does hold water and you have to pay close attention to the terms, you will note that this is the same agreement that was forwarded to the EA that they acted on. My final points on this:

1. The PX agreement does not say that prior EA arrangements must end, or the agreement will bring these to an end (Barratt's PX schemes have this as a clause, TW's do not)

2. It does not say "when" the house will be marketed by them (we assumed it would be once they owned it) again as an example Barratt's PX schemes have this as a clause, TW's do not

3. It does say they will use the same EA as us but again, we thought this would be just to help them as the EA already has introduced people to the property (they are free to use whoever they want, obviously in their best interest to use the same EA as that EA is familiar with the property and had already introduced people)

And the EA agreement says:

1. Running contract, not a fixed term.

2. Termination must be in writing within 21 days of first notification. PX agreement does not help their cause and it does not state it terminates prior arrangements. We did not end a contract in writing.

3. Introducing TW to the EA by means of a PX offer would not be construde as a breach of contract or a sale outside the contract as the EA still got the fees, TW were referred to the EA, mine and TW's agreement over who covers the cost of the fees is irrelevant to the EA.

What loss did you directly incur by the EA's actions if any?

decsdad

Thrugelmir wrote: »

What loss did you directly incur by the EA's actions if any?

Had the EA passed on the offer to the OP, of £140,000(as they probably should have, as the contract must be terminated in writing, either way I assume), the OP could have accepted it directly, and renegotiated with TW without TW providing a PX, and hence negotiated more/some discount/optional extras.

Thats the crux of it really.

I reckon, the OP has a point, but really should have took the bull by the horns a while ago, before/as signing the PX deal.
But I'm sure you don't need me to tell you that.

I think the only way you will get somewhere is to push the EA as to why they did not forward the offer to you, you had not terminated the contract with them, nor had they, IN WRITING as per the contract. At best they may refund all/part of their fee as a goodwill gesture, and I would just take it.
If you explain in writing and clearly how that error has "cost" you and potentially how much it has cost, prior to any legal stuff I think you will be ok.

badaz52

By not informing me of an offer, I lost my negotiating power.

This is the way I see things:

TW offer me £140,000 for my house, paid on completion of the new build subject to me paying the agreed price, which as per their criteria means the full price.

Offer is accepted in writing by me, agreeing to TW's conditions. Offer is delivered to the EA and confirmed via a telephone call with me by the EA.

Mrs X comes in before completion/EOC and offers £140,000, offer is accepted not by us but by TW. TW had an accepted offer with us at £140,000, we had every right to negotiate with her to get her to pay more than £140,000 end of the day it was still our property and it wouldn't matter to TW as it gets them off the hook anyway.

She could have then offered somewhere between £140,000 and £150,000 for the property. Two EA's valued the property at an anticipated selling price of £150,000.

The EA took away our rights to negotiate/renegotiate a better deal either with her or with TW by not informing us of her offer.

badaz52

decsdad wrote: »

Had the EA passed on the offer to the OP, of £140,000(as they probably should have, as the contract must be terminated in writing, either way I assume), the OP could have accepted it directly, and renegotiated with TW without TW providing a PX, and hence negotiated more/some discount/optional extras.

Thats the crux of it really.

I reckon, the OP has a point, but really should have took the bull by the horns a while ago, before/as signing the PX deal.
But I'm sure you don't need me to tell you that.

I think the only way you will get somewhere is to push the EA as to why they did not forward the offer to you, you had not terminated the contract with them, nor had they, IN WRITING as per the contract. At best they may refund all/part of their fee as a goodwill gesture, and I would just take it.
If you explain in writing and clearly how that error has "cost" you and potentially how much it has cost, prior to any legal stuff I think you will be ok.

Do you think I should send a second letter to the EA? or go straight to the ombudsman with this?

evoke

badaz52 wrote: »

By not informing me of an offer, I lost my negotiating power.

This is the way I see things:

TW offer me £140,000 for my house, paid on completion of the new build subject to me paying the agreed price, which as per their criteria means the full price.

Offer is accepted in writing by me, agreeing to TW's conditions. Offer is delivered to the EA and confirmed via a telephone call with me by the EA.

Mrs X comes in before completion/EOC and offers £140,000, offer is accepted not by us but by TW. TW were the buyers at £140,000, we had every right to negotiate with her to get her to pay more than £140,000 end of the day it was still our property and it wouldn't matter to TW as it gets them off the hook anyway.

She could have then offered somewhere between £140,000 and £150,000 for the property. Two EA's valued the property at an anticipated selling price of £150,000.

The EA took away our rights to negotiate a better deal either with her or with TW by not informing us of her offer.

Who your house ended up getting sold to is completely irrelevant. You accepted and offer of £140K. You got £140K.

It was TW that managed to sell your property after you were unable to sell it. You should be thankful!

But it's not about selling your property that's the important point here. You got £140K for your property and that's what you agreed to. Now it seems like you want more money!

Why enter into a P/X contract if you didn't want someone else to take your property off your hands? How TW disposed of your property isn't really your concern, IMO. You got what you agreed for it. If TW had sold it for £100L then that wouldn't have been any of your concern - they'd have absorbed the loss, not you. If they managed to sell it for £150K then they would have pocketed the £10K profit. That's their business. You got your £140K.

Regardless of all of this, as most people have said, sue TW and/or the EA and let us know how you get on.

badaz52

evoke wrote: »

But it's not about selling your property that's the important point here. You got £140K for your property and that's what you agreed to. Now it seems like you want more money!

My complaint is based on principle really. I am nearly ready to admit defeat but have a few more steps to go yet.

I was unable to sell it because evidently it was overpriced for 10 months. Reducing the price and securing an onward buyer before I exchanged or moved out proves this is the case.

Just before we entered into a PX agreement the EA, we asked the EA why we were having viewings but no firm offers, is it the price? they replied no the price is exactly right and wouldn't let us reduce it significantly enough. It was en effort to get them to drop it by just £7,000. On those grounds we went for the PX, the house was then reduced to a more realistic price and surprise surprise one of the previous viewers bought it.

lincroft1710

badaz52 wrote: »

Offer is accepted in writing by me, agreeing to TW's conditions. Offer is delivered to the EA and confirmed via a telephone call with me by the EA.

If you tell the EA you've accepted an offer outside of your contract with them that could be construed as you ending your contract with EA.

EA are then instructed by TW to market property currently owned by Badaz but soon to be owned by TW which will be available for purchase after Badaz has sold to TW. So any offers are not for the property whilst in the ownership of Badaz but whilst in the ownership of TW. Thus Mrs X didn't offer on your property, she offered on TW's.

We don't know what actually went on between EA, TW and Mrs X. TW may have asked EA for names of any previously interested parties, negotiated with them themselves and just paid EA's standard commission as requested. Therefore Mrs X may not have made any offer via EA.

badaz52

lincroft1710 wrote: »

If you tell the EA you've accepted an offer outside of your contract with them that could be construed as you ending your contract with EA.

You are right but there are too many grey areas here for my liking.

In theory if my EA took that because I accepted the offer outside of my contract with them, that the contract would end, why did they not bill me for all the marketing and leg work to date as they would be entitled to as per the terms of business. After all TW said I would be responsible for any fees to date.....

lincroft1710

badaz52 wrote: »

they replied no the price is exactly right and wouldn't let us reduce it significantly enough. It was en effort to get them to drop it by just £7,000.

If the client wants to reduce the price of his house, his EA can't stop him. The EA can advise his client that he is underpricing, but that's all. By not taking his client's instructions, an EA could (NB could not necessarily is) be breaching his contract.

lincroft1710

badaz52 wrote: »

why did they not bill me for all the marketing and leg work to date as they would be entitled to as per the terms of business. After all TW said I would be responsible for any fees to date.....

But TW now became EA's client and probably agreed to pay EA's standard commission of 1%. Knowing they would get their full commission, EA decided not to bill you, especially as they were not successful in finding a buyer for you.