Foul Play/case for legal action

sonastin

I could put your house up for sale if I wanted to. It isn't illegal. The only reason why an EA would refuse is because the probability of me not being able to complete the sale is too high. But I might find an EA who was willing to work with me or I could advertise the house for sale myself. No different to TW.

If I find someone interested in buying, I would need to find a way to get them in to view or hope that they don't need a viewing. TW's buyer didn't need a viewing.

If I manage to negotiate a sale with this buyer, the only thing stopping me from selling to them is the fact that I don't own the house. I now need to convince you to sell it to me in order to be able to sell it on to my buyer and I need to buy it from you at the right price to make it worth my while selling to my buyer. TW already knew you were prepared to sell it to them and at what price.

As long as I don't exchange contracts with my buyer until after I've exchanged contracts with you, I am not committed to selling to my buyer so I can pull out of the transaction at any time if you decide not to sell to me. At no point have you indicated that TW had already exchanged contracts with the buyer before you were committed to selling.

So at no point have TW done anything wrong or illegal. They have played the game better than you and you're not happy about it. That doesn't make what they did wrong. You were happy to play the same game until you found out you'd lost.

The EA made assumptions about the contract because they understand the game and how it is played. The only potential case you have hangs purely on a loophole in a badly written contract. Stop feeling hard done by. The ombudsman might punish the EA for being sloppy but TW have done nothing wrong.

badaz52

It happened like this, we wanted more than £140,000 for the house and knew it was worth more than this although an offer higher say £150,000 had not been received as we originally instructed the EA we wanted closer to £165,000.

We agreed to sell it to TW for £140,000 as an exclusive deal, we confirmed this with the EA and specifically told them that if a better offer came along we would accept else we would exchange with TW. I have no doubts that the female who purchased the property would have paid £150,000 if she knew she could get it for that.

No offer came along but it did and as it held no conditions was better for us financially. No one informed us of this.

The problem I have is that the EA accepted this instruction to find us a better offer and confirmed that they would, they didn't inform us that they could not accept this instruction because TW were their client and not us. Therefore we believed that up until EOC/Completion our house was still on the open market at its original asking price all be it we have accepted £140,000 from TW if we don't find a buyer in the meantime ( a fair assumption IMO) what transpired is TW immediately put the house on the market for the same price we had accepted from them and found a buyer ready to move the minute they owned it. Fair enough right? not in my book, they restricted us from trying to achieve a better price on our house and neither TW or the EA did anything to help us out. We had no knowledge of when our house advertisement would be reduced in price nor did we agree to that part of the deal taking place immediately.

It proved to be detrimental and I cannot believe that I am being told that I shouldn't feel hard done by. TW and the EA held me to the acceptance of the £140,000 and removed any possibility of achieving more by dropping the asking price immediately following acceptance of the PX although I specifically did not agree to that in my T&Cs with TW and had not exchanged with them yet. I believe that is an error of judgment on their part as it was not their decision to make.

Let's not forget the advertisement stated "Massive price drop of £25,000" why would it say that if it was TW's ad and not our original one? I never agreed to reduce the advertisement to £140,000, all I did was agree to sell to TW for £140,000 once I have exchanged with them as a last resort. I don't think they had any right or authorisation to alter the advertisement in the way they did and look at the effect it has had on us? what if we had backed out? all those interested parties would have seen the house price drop then go back up again and it wouldn't have helped us any which way.

But your right we have been over all this before and you know my opinions. I am not dismissing your opinions as they may well be right, we will have to see when the ombudsman replies.

All I will say is the EA and TW made a hell of a lot of assumptions once they had my signature and I did not agree to some things that took place. You have seen the PX agreement I signed, there were no other T&Cs associated with that.

JQ.

OP - Many thanks for the update. However, you're now just going round and round in circles again, explaining the same gripes you've expressed many many times already in this thread. Your understanding of the process is wrong, explaining it again won't change that. So please come back and update the tread again once the Ombudman has looked at the papers (as I'm genuinely interested in their view of the process), otherwise there'll be another 13 pages of exactly the same debate.

I think Sonastin sums it up perfectly.

sonastin wrote: »

So at no point have TW done anything wrong or illegal. They have played the game better than you and you're not happy about it. That doesn't make what they did wrong. You were happy to play the same game until you found out you'd lost.

The EA made assumptions about the contract because they understand the game and how it is played. The only potential case you have hangs purely on a loophole in a badly written contract. Stop feeling hard done by. The ombudsman might punish the EA for being sloppy but TW have done nothing wrong.

GDB2222

sonastin wrote: »

The EA made assumptions about the contract because they understand the game and how it is played. The only potential case you have hangs purely on a loophole in a badly written contract. Stop feeling hard done by. The ombudsman might punish the EA for being sloppy but TW have done nothing wrong.

I agree that the OP has no case against TW, but the case against the EA is much stronger than you suggest (IMHO ofc). It runs like this:

If the EAs were still contracted to the OP, there is no doubt that the EAs broke the law (the EA 1979 act) requiring the EAs to inform the OP of any offers. If the EAs were no longer contracted to the OP, they had no obligations to them.

So, the only question worth asking is whether the EAs were still contracted to the OP. The argument there is in 3 parts:
a) the estate agency contract was still in force unless ended,
neither the OP or the estate agent specifically ended the contract, so
C) did the agreement that the OP entered into with the housebuilder automatically end the estate agency agreement?

There is no argument about A or B, so the whole thing comes down to C. my own view is that as the agreement with the housebuilder was conditional it did not end the estate agency agreement. Other people argued differently, I know.

I am sorry to keep going round the same points that have been dealt with previously, but I do think it is important for the OP to understand precisely the very narrow point on which his case against the estate agent rests. Even though it is a narrow point, I think it is a strong one, and it would be a shame if the OP loses his case because he fails to concentrate on the real issues involved.

I have no sympathy with the estate agents. They are professionals, and they had a duty to avoid any ambiguity about their role, which they clearly failed in.

badaz52

Well its in the hands of the ombudsman now. All I will say is in the EA letters to me they mentioned the names and amounts of the offers that they did pass onto me when in their words "acting solely on your behalf" but did not disclose the offer in question to me in their letter. My assumption to this is they believed when that offer was received their client was TW and they had no obligation to me.

I am 100% certain neither I or them ended our original contract and their terms of business clearly stated it would remain in force until it was ended in 21 days written notice, no cancellation took place and as you rightly say I would have been free to change my mind on TW's offer at which point the EA surely would have then switched their attention back to me and carried on trying to sell the property, which would have been a headache and marketing nightmare when the property had already been reduced by so much we would obviously want to put the advertisement back up to full asking price.

I never ended that contract and the PX agreement I signed never contained a condition that prior arrangements with the EA must end, either the EA assumed that to be the case or TW mislead them.

I would be very surprised if the ombudsman equitted the EA of all wrongdoings but you never know.

badaz52

TPO has been in touch. They have been awaiting further information from the EA since Early December and the case is currently with one of their senior officers. They said we should receive a letter in the next few days from them.

carefullycautious

keep us informed

badaz52

Another update from TPO.

They have heard from the EA and the case has been reviewed by one of their Senior Case officers. The complaint falls within the Ombudsman's terms of reference and will now be put forward for review by the Ombudsman.

Not sure "exactly" what this means but it sounds promising as it's the ombudsman who can make the awards...

I hope things turn out well but who knows how the ombudsman will see the case.

I'm still a bit uncertain with all the evidence we have shown whether we can actually demonstrate actual proven financial loss, my only evidence is what my next door neighbour paid by not proceeding with an offer through the PX scheme (not sure if this is enough) we can clearly prove distress, aggravation and inconvenience though!

badaz52

Well no updates as yet I'm afraid. The ombudsman are really taking their time with this one. We had a letter saying they are very busy at present so hopefully it is reaching a resolve very soon.

DVardysShadow

GDB2222 wrote: »

I agree that the OP has no case against TW, but the case against the EA is much stronger than you suggest (IMHO ofc). It runs like this:

If the EAs were still contracted to the OP, there is no doubt that the EAs broke the law (the EA 1979 act) requiring the EAs to inform the OP of any offers. If the EAs were no longer contracted to the OP, they had no obligations to them.

So, the only question worth asking is whether the EAs were still contracted to the OP. The argument there is in 3 parts:
a) the estate agency contract was still in force unless ended,
neither the OP or the estate agent specifically ended the contract, so
C) did the agreement that the OP entered into with the housebuilder automatically end the estate agency agreement?

There is no argument about A or B, so the whole thing comes down to C. my own view is that as the agreement with the housebuilder was conditional it did not end the estate agency agreement. Other people argued differently, I know.

I am sorry to keep going round the same points that have been dealt with previously, but I do think it is important for the OP to understand precisely the very narrow point on which his case against the estate agent rests. Even though it is a narrow point, I think it is a strong one, and it would be a shame if the OP loses his case because he fails to concentrate on the real issues involved.

I have no sympathy with the estate agents. They are professionals, and they had a duty to avoid any ambiguity about their role, which they clearly failed in.

I agree with this analysis but I think it runs deeper than the question of to whom the EA was contracted. I have kept right out of this thread because it is only now I have got my head around it.

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 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.

I am with this. But actually there is a deeper point here, beyond the fact that the EA did not pass on the offer. The EA had a conflict of interest in that they were acting for 2 different clients over the sale of the same property.

This overrides [in my mind] the question of to whom were they contracted. They should have immediately [OK, it has taken about a dozen pages for us to get here] identified to both seller clients that there was a conflict of interest, explained resolved this conflict and only then continued with the marketing. The natural point at which to put the change of client into effect is of course exchange of contract from OP to builder if no other buyer came along.

It has not been helped by OP rightly feeling done down, but being unable to correctly identify the party at fault. As you say, GDB, it is a narrow point, but adding conflict of interest to failing to pass on an offer, it is a strong one. I think the ombudsman will take their time to get their heads around this - and then an even longer time to decide a level of compensation.