Foul Play/case for legal action

badaz52

The builders had not "legally" bought the house by this stage, we did not exchange contracts with them until the 26/08/11, the PX agreement was signed in May and surely could have been nothing more than a provisional agreement? until we exchanged contracts it was still my concern what happens to the house and how it might affect me as I was the legal owner.

Wimpey told me they would be using my EA presumably as they already had information on previous interested parties so it would be easier to sell which is understandable.

The key thing here is only when I exchanged contracts on the 26/08/2011 did it become Wimpeys to sell, the px agreement does not mean squat, as if it did wimpey would not have added term 6: which stated that I can pursue a sale with a buyer independently if between exchange of contracts and original acceptance of the px agreement a buyer was found either by them or the EA.

I had no idea a buyer had been found as neither the EA or Wimpey told me and surely as I was still the legal owner till the 26/08/11 I should have been informed either way.

GDB2222

He could have said to Wimpey that he wanted to continue to market it for more and if by the time exchange of contracts was due he couldn't find a buyer would they take it off him for £140K?

Surely he had every right to continue marketing his own property up to the time of exchange - unless the PX deal said he couldn't.

His complaint is that he did not withdraw his contract with the EA, and he did want them to continue marketing on his behalf. They did receive an offer during that 3 month period before exchange of contracts took place, but they did not tell him. Had they done so, he would have taken that offer and not gone ahead with the Wimpey PX deal. He would then have been in a much stronger bargaining position with Wimpey or could have bought an entirely different, second-hand house, which as you often point out would have been much better value.

Unless the EAs can show that their contract was ended (and how can they do that unless they wrote to him ending it?), they are in clear breach of the EA Act, and the OP suffered damage as a result.

lincroft1710

badaz52 wrote: »

The builders had not "legally" bought the house by this stage, we did not exchange contracts with them until the 26/08/11, the PX agreement was signed in May and surely could have been nothing more than a provisional agreement? until we exchanged contracts it was still my concern what happens to the house and how it might affect me as I was the legal owner.

But did you contact the EA at any time between May and August and either tell them a possible sale was agreed and they should either a) stop marketing the house, or b) continue to market the house and regularly update you or otherwise.

Wimpey told me they would be using my EA presumably as they already had information on previous interested parties so it would be easier to sell which is understandable.

By posting this you are implying that you accept the fact that Wimpey could sell to anyone who had previously expressed an interest in your house. You are also implying that the sale of your house is now Wimpey's problem not yours.

The key thing here is only when I exchanged contracts on the 26/08/2011 did it become Wimpeys to sell,

"Sell" and "market" are not the same. Wimpey did not sell your house prior to 26 Aug, they marketed it i.e. offered it for sale


the px agreement does not mean squat, as if it did wimpey would not have added term 6: which stated that I can pursue a sale with a buyer independently if between exchange of contracts and original acceptance of the px agreement a buyer was found either by them or the EA.

Which is the height of ambiguity! It merely states you "can". In other words the builder will not prevent such a sale, it does not state the builder or EA are obliged to inform you of a potential buyer.

I had no idea a buyer had been found as neither the EA or Wimpey told me and surely as I was still the legal owner till the 26/08/11 I should have been informed either way.

If you think the above is nitpicking then if this does get to the stage where you bring an action against either or both EA and Wimpey, this is exactly what their lawyers will do to your arguments and claims and will further state you have misread agreements, contracts etc.

You've had advice from one conveyancing solicitor, what does your own solicitor think?

Richard_Webster

It still doesn't really make sense.

If I was in this position I would have been on to the state agents every week or so asking what was going on - had anyone exprseed an interest? Was OP doing that? Was he really still trying to get a buyer at a better price than Wimpeys had offered?

After the "deal" was done over the PX (but before exchange) did OP contact the estate agents and make it clear that he still wanted it marketed?

Did he expect Wimpeys to sit back and do absolutely nothing about his house until after he had sold it to them?

As has already been said, anyone can try to sell something they don't own - the rubber hits the road when the buyer asks for proof of ownership.

GDB2222

It's probably a mess-up at the EAs, rather than a conspiracy. Nevertheless, they should have recognised the conflict of interest and resolved it. There were several ways for them to do that.

"After the "deal" was done over the PX (but before exchange) did OP contact the estate agents and make it clear that he still wanted it marketed? "

Surely that was the EA's responsibility? They were the ones faced with a conflict of interest.


"If I was in this position I would have been on to the state agents every week or so asking what was going on - had anyone exprseed an interest? Was OP doing that? Was he really still trying to get a buyer at a better price than Wimpeys had offered?"

Well, he had been marketing the property with these EAs for 10 months before entering into the PX deal. If he had been onto the EAs every week for that 10 months and then stopped as soon as the PX deal was signed you would have a point.

"Did he expect Wimpeys to sit back and do absolutely nothing about his house until after he had sold it to them? "

My understanding is that he did not expect Wimpeys to do nothing, and he was quite happy for them to market his house before exchange. But he would happily have accepted a buyer at the lower price of £140k, and the EAs had an offer at that figure that they did not pass on to him. That's the EA's problem, they stopped treating him as a client, and they had a buyer acceptable to him. If he had sold at £140k to that buyer, he could have saved a lot of money on whatever house he then purchased.

Egg_custard_2

badaz52 wrote: »

I have just found the part exchange agreement and clearly under point 6 it states:

- 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 to TW all marketing and selling costs incurred by them.

This part of the agreement makes it clear that TW intended to market your property prior to exchange of contract (otherwise there would be no need for them to state what would happen if a buyer had been found by TW prior to exchange of contracts).

You knew someone had viewed your property twice at the higher price, so why didn't you pursue that and see if you could get an offer in excess of the PX amount offered by TW before signing the PX agreement with them?

I'm not sure I would have expected TW to allow you to back out of the PX deal at any time prior to exchange. Would you have been happy if TW had continued to try to find another buyer for the house you were purchasing? Signing the PX deal was a commitment on your behalf. As someone else said, if you believed you were still entitled to try to find a buyer yourself, surely you would have maintained contact with the EA?

I have a friend who has just signed up to a PX deal with a builder (pre exchange at the moment) and the builder has put his house on RM at a reduced price with the same EA too. My friend's EA did ring him on receipt of the PX deal, so I wonder if this was out of courtesy or an actual requirement - you may have grounds for complaint here. I can't see that you have lost out financially though - as far as you were concerned you still had the right to sell your property until exchange, and you didn't find out otherwise until after exchange... and yet you didn't actively try to find a better purchaser for your house and you didn't find one. The TW deal was still the best deal on the table as far as you were concerned at the point of exchange.

badaz52

We asked TW on numerous occasions that if we found a buyer before completion could we do that and not go ahead with the PX and they replied "yes of course" it is your house after all. Therefore on that basis as we still had an agreement with our EA we felt they should have kept us up to date with any viewings or offers and they did not. I don't think asking me if I was on the phone constantly to the EA asking if there was a buyer is fair as the EA is supposed to inform "me" not me hassle them constantly. The thing is the EA was in touch after the PX agreement was signed to pass on various pieces of information from TW but at no point did they mention an offer was received. TW had every right to market my property I told them they could and at the reduced price, I also didn't have a problem with them finding a buyer while we were still living there. My one and only complaint is I did not end my contract with the EA and they did not end it with me formally in writing either. I think the EA was naive and assumed that as a PX agreement was signed they did not need to have any further contact with me which is absolutely ridiculous.

Regardless of the PX agreement the EA did not inform me there was a buyer, probably as they thought the buyer was TW so their dealings with me was finished as far as they were concerned but that was only a provisional agreement and was not concrete until completion.

Just to note: after the now owner viewed the property for a second time at the original price we asked the EA on numerous occasions if she had made an offer, they said the had not, shortly after we signed the PX agreement and then funnily enough (probably as soon as she saw the price drop on the ad) she made an offer, the EA knew we were interested in selling to her but didn't pass on her offer because they assumed the PX agreement took precendence and believed that TW were the ONLY party that needed to be informed which I don't think was right. The EA IMO once they had seen the PX agreement they were the ones who ended the communication, I mean we did speak to them a few times before we completed and they were unhelpful and didn't let on about anything, they seemed to have the attitude of "why do you care?" like they didn't have to inform us of anything and were surprised that we were even calling?

Egg_custard - you say I did not try and actively find a buyer, how is this my job? that is what I appointed an EA for? my agreement with the EA never ended formally, so of course the TW PX was still the best deal on the table as I had no idea there was anything different and the EA didn't tell me anything.

My biggest problem here is the PX agreement was conflicting and my advise to anyone looking at doing this, if your house is already on the market with an EA. End the marketing with them before you sign the PX agreement or stipulate that you do not want the developer to use the same EA. I'm going to pursue this as I think my EA with them being a small independant firm owned by two local guys acted out of turn and showed their inexperience as they should not have taken what TW were telling them as gospel they should have formally ended their agreement with us first and they did not and we were prevented from entering into negotiations with TW before completion as a result.

Calculating a loss is not important at this stage.

Like I said we DID contact the EA to see if this lady had made an offer and they kept telling us there had been no offers, so they lied to us, as I said probably because they thought it was not our concern, whether TW told them to keep info from us or whether they did it off their own back I don't know but they were not forthcoming in anything after we had signed the PX agreement.

sonastin

The EA can't sell the house on behalf of 2 clients. Either they are working for you or they are working for TW. By entering into the part ex deal and consenting to TW marketing the property through your EA, you sent a message to the EA that you no longer required their services and were happy for them to work on behalf of a new client. That may not have been the message you wanted to convey but your subsequent action did nothing to change their view. If you had been proactive in contacting them and pushing for updates and information after they became aware of the PX agreement, it might have made them realise you still considered yourself to be their client and they could have addressed the conflict issue. As it is, they had no reason to believe there was a conflict as they were under the impression that you were no longer interested in selling the property through them. As TW were, they would get their commission anyway so there was no need for them to object to your apparent early termination.

badaz52

If this was the case, my EA would have had zero contact with me up until completion, in actual fact TW were relaying things to do with gas/electric certificates through my EA but they conveniently never mentioned there was a buyer lined up??

Plus if this was the case and the PX agreement took precedence, why would TW say you can pursue the sale independantly if there is a buyer in place? what would be the point in saying that?

I think the EA still had a duty to make sure they ended their contract with me formally and they did not, you can't just take someone elses word for it on a "provisional" agreement I might add.

People seem to be missing the point here, a PX agreement is a provisional agreement where they will find a buyer and if not they will take it off your hands on completion of the new build. In the meantime they can market it, alter the price basically anything they want but they DO NOT own it so the final decision is NOT theirs to make NOR is it the EA's to make. Therefore as they used my EA, I had a right to be informed as usual if there was a buyer that was not TW and this never happened. Whether I called them on a regular basis or not is irrelevant.

I would say you would be right if it was a different EA then yeah fine they would only have to inform TW as that is their client but as TW used our EA and we had not formally ended our contract with that EA. That EA had to inform us of any offers and they did NOT.

The EA had a conflict and to resolve that conflict should have formally ended their contract with us first before agreeing to market it for TW, they missed this step out and we feel aggrieved by what happened after so I am seeking legal action against them as I think I am entitled to do so.

I have read the PX agreement (which presumably EA would have received a copy of with our signatures on) and it does not state anywhere that it will void any previous agreements you have with said EA.

I'm sorry you cannot just make assumptions and what your implying is that when presented with the PX agreement from TW, our EA assumed that they would no longer deal with us.

decsdad

I have to say, I think you are just a bit annoyed and bitter with hindsight, as you were happy at the time. You did agree for TW to market your property through your EA(and hence with your leads) which is all the viewer was at that point,a lead, a previously interested party, who the EA would have phoned to update them with the new price. You were unable to secure a deal with the viewer, where TW did, by lowering the price.
You could have lowered the price and tried to sell it before signing a Part ex deal, but you opted for secuirity, transferring the risk to TW.
The part ex deal did remove risk, hassle, worry, stress etc from you during your sale/move, which is what you paid for with (potentially) lost profit/negotiating power.
Your choice at the outset.

Regarding the EA, the Part ex agreement you signed would have said that TW were authorised to market your property from x date, with your signature.
I too have made many a decision over time which I later regretted. You need to look at it as "it was the correct decision at the time".
All the best.