Foul Play/case for legal action

lincroft1710

badaz52 wrote: »

You are forgetting one vital piece of information J.Q. Up until EOC, TW's offer was just an offer

No it wasn't! It was part of a PX agreement which you entered into, binding you to buy their property if they bought yours, providing you had legal title to it, with some rather stiff penalties if you failed to complete the deal.

decsdad

badaz52 wrote: »

You are forgetting one vital piece of information J.Q. Up until EOC, TW's offer was just an offer and the EA should have recognized this and passed on the other offer.

Not really, within that 'offer', which you signed, you authorised TW to market your property before EOC, ie immediately, and with your EA. They are not marketing it for you, they were marketing it for themselves. Surely they only have to pass on offers to the person/company they were offered to.

If I was the buyer, and the EA said to me, would you like to offer to TW at £140k, or negotiate with the current owner who I knew wanted more, I know what I would do. You sort of set this up to happen, by agreeing to the PX, and not taking control of the EA situation at the time. I am sure you could have agreed to reduce the price to £150k for 1 month, then let TW take over.

I think the EA, will just say that the offer was not to buy the house from you, it was to buy it from TW, as you allowed them to do.

Again, I would still probably try it, you may get a go away offer(goodwill gesture) and you should really take it.

Best of luck

badaz52

How was I to know the marketing would be immediately following the acceptance of the px offer? the agreement never said that. The px offer was subject to EOC within 28 days following acceptance, EOC did not take place until just before completion 30/08/2011 so up until then it was still an offer and not legally binding. Until EOC/Completion between TW & I, TW were marketing the property but as they did not legally own the property they could not commit to an onward sale. It certainly benefitted them that I was not informed of a second offer because if I had accepted it I would have been able to renegotiate on price. At this stage I had not committed to the sale (not Exchanged).

My contract with the EA, the PX agreement and the legal obligations in the EA act 1979 do not all go hand in hand.

The PX offer didn't make sense to be honest, If I had Exchanged 28 days after acceptance of their offer (which I couldn't because of solicitors delays) then I had committed to sell the house to TW, at that stage I would have expected that for the next 2 months before completion of the new one they would then market it and try and find a buyer to recoup their £140,000. In fact they marketed it before I had committed and found a buyer (well didn't "find" she was already introduced) before I had committed and neither TW or the EA informed me of that second offer. The EA being aware of the strict conditions of TW's offer would realise that the offer from the independent party would be more appealing and since neither I or the EA ended the original agreement or caused anything to make it cease (i.e. the EA were still getting their agreed commission), the EA had a legal duty to inform me of all offers even though I had accepted one.

Therefore I proceeded to exchange with TW, believing their offer to be the ONLY one on the table. I made a mistake to proceed with the exchange and commit to a sale to TW that has cost me financially but it is not a mistake caused by me. I was misinformed or rather not informed at all.

badaz52

Many of you believe the PX agreement/offer to be legally binding but the law says differently. TW made an offer to buy my house subject to EOC within 28 days, there was a delay on this exchange because of solicitors, in the meantime a better offer came in (i.e. no conditions). Whether the EA were not treating me as their client at this point is irrelevant, the offer should be passed onto the vendor and the offer had to have come in before TW became the vendors.

I believe that up until I committed to the sale with TW (EOC) I had every right to be treated as the EAs client seeing as though I did not end my contract with them. As soon as I had committed then and only then should TW have become the client for the EA and taken 100% control of marketing with no further requirement to inform me of any dealings.

badaz52

One more item that I have found that may help prove my case. TW asked me directly for a copy of the energy rating certificate, now the energy rating certificates are held by the EA. I requested the certificate on the 09/05/2011. Bearing in mind the EA is saying that from the 05/05/2011 they were taking instruction from TW. I then forwarded this onto TW.

If TW were indeed the EA's client at this point and the EA holds the certificates why get me involved?

I either was their client or I wasnt....

RabbitMad

Yawn - badaz52 you are up to 6 pages and still no nearer forward. Personally I believe you have a case against the EA - go and see a solicitor for a free consultation and see if they would be willing to undertake the case on a conditional fee arrangement (no win no fee thingy)

I would quantify your loss at 10% of purchase price minus EA commission on £140K sale minus a bit for hassle factor.

You may find EA is willing to do a deal once a solicitor is involved

badaz52

Thanks RabbitMad, I am currently writing my 2nd letter to the EA, then its onto either a solicitor or the ombudsman.

decsdad

badaz52 wrote: »

How was I to know the marketing would be immediately following the acceptance of the px offer? the agreement never said that. .

This is from your post no 167:

"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."

This says they have done it, not will do it, or will begin marketing from a specific date/EOC. Thats how I read it at least.

As TW were marketing your property, with consent,(although they don't even need it I think) if your interested party wanted to make TW an offer, then the EA passes it on to TW(EA was acting on TW behalf, even if they were acting on your behalf also, it wouldn't matter IMO). The previous viewer and eventual buyer didn't want to make you an offer.

Again, I think you should continue with this, but I beleive this will be the crux of the matter.

GDB2222

decsdad wrote: »

As TW were marketing your property, with consent,(although they don't even need it I think) if your interested party wanted to make TW an offer, then the EA passes it on to TW(EA was acting on TW behalf, even if they were acting on your behalf also, it wouldn't matter IMO). The previous viewer and eventual buyer didn't want to make you an offer.

Again, I think you should continue with this, but I beleive this will be the crux of the matter.

That point had never occurred to me. Whenever I have made an offer on a property to an EA (and I must have done this about 30 times in my life) I have NEVER specified whom the offer is being made to - just to the vendor. If the EA was acting for two vendors he would have had to tell the buyer this and ask which one he should pass the offer to. My reply as a buyer would undoubtedly have been "both".

silvercar

GDB2222 wrote: »

That point had never occurred to me. Whenever I have made an offer on a property to an EA (and I must have done this about 30 times in my life) I have NEVER specified whom the offer is being made to - just to the vendor. If the EA was acting for two vendors he would have had to tell the buyer this and ask which one he should pass the offer to. My reply as a buyer would undoubtedly have been "both".

Sometimes a buyer is prepared to make an offer to a seller like TW because they know there is no onward chain and they know the seller won't decide not to sell. So the offer may be worth more to the buyer ie they may not have been prepared to make the same offer to OP due to the risks of OP changing their mind or then going off and finding a different property to buy, delaying EOC.