Foul Play/case for legal action

lincroft1710

badaz52 wrote: »

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??

If by "they" you mean TW they had no obligation to inform you of a prospective buyer, and as EA working for TW neither did they.

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?

It would save TW time, effort and money if you found your own buyer

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.

By signing the PX agreement, YOU effectively ended your contract with EA by saying "I've found a buyer independently of you"

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.

As has been previously posted EA has one client who pays them. TW have every right to sell the house to whomsoever they please, once you have sold it to them, which is what they did, their decision was to sell to Miss X as soon as the property became theirs.

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.

See above

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.

Again see above.

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.

Neither does it say the contract will not void any previous agreement with EA. It doesn't mention anything about previous agreement with EA

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.

Legal action for what? The property was sold for the figure you received. You have no quantifiable loss, in fact you have a quantifiable gain, you saved on EA fees, probably around £2K

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.

Oh yes we can

Did you get any advice from another solicitor?

GDB2222

sonastin wrote: »

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.

I'm sure that's what happened, although I'm not sure why you say that they could not act on behalf of both the OP and TW? I'm not sure that there is an insurmountable conflict of interest there. Essentially, the EA can offer the same buyer to both their clients. The EAs needed to take hold of the situation and clarify their position with all concerned, which they failed to do.

Consequently, the EAs still had a contract ongoing with the OP, and they should have terminated it perhaps. They didn't terminate it, which is going to cost them or their insurers a shed-load of money. I bet they won't make that mistake again!

lincroft1710

What we don't know is what were the Ts and Cs of OP's contract with EA. Was it for a fixed period of time, or was it ongoing until a buyer was found or either party terminated it?

sonastin

GDB2222 wrote: »

I'm sure that's what happened, although I'm not sure why you say that they could not act on behalf of both the OP and TW? I'm not sure that there is an insurmountable conflict of interest there. Essentially, the EA can offer the same buyer to both their clients. The EAs needed to take hold of the situation and clarify their position with all concerned, which they failed to do.

Consequently, the EAs still had a contract ongoing with the OP, and they should have terminated it perhaps. They didn't terminate it, which is going to cost them or their insurers a shed-load of money. I bet they won't make that mistake again!

They couldn't both sell the house. Either the OP is the client and the sale is negotiated for his benefit or TW is the client and the sale is negotiated for its benefit. On the face of it, the EAs task is the same "get the highest price possible" but a) who decides when the price is high enough? If TW are happy to accept £140k but the OP wants £145k, who's instruction is the EA supposed to take? Who does the EA send the bill to?

I agree that the EA should have made the position clearer but I don't think it is a clear cut case. I also think that there is very little money at stake here as the OP is going to have a hard time quantifying his damages. It is an interesting point of law and I think it can be determined by action as much as by what is in the signed documents. In the end though, short of getting EAs and part-ex developers to tighten up their contract terms I don't believe pursuing the argument will achieve very much.


OP - in law you can assume things that differ from what the contract says. The doctrine of estoppel does just that. I am not certain whether your conduct is sufficient to amount to estoppel but it does weaken your case, whether you like it or not.

badaz52

I'll dig out the contract we signed with the EA. IIRC it gave them the marketing rights for a set period of time during which if a buyer was found with another EA we would owe them money for marketing up to that date. Other than that I'm pretty certain that it's marketed until either party ends the contract.

I know that you will tell me the PX agreement ended the contract but surely in this world we live in that would have to be in black and white?

Like you say it became TW's to sell on the 30/08/2011, and their buyer completed on the 31/08/2011 but as it was only being marketed up until the 30/08/2011 I still feel that the EA took it that it had been "sold" to TW prior to 30/08/2011 when in actual fact all TW were doing was marketing it on behalf of us and themselves for the agreed price.

I don't think it mattered to TW either way, if a party had been found and we decided to pursue independently we probably would have negotiated about £2k-£3k in extras off the new one which is roughly give or take what it cost them to PX us so it would have made no difference to them.

Like I said, point 6 on the PX agreement is leading me to believe that as they market with your own EA, they know that you still have a contract with the EA too so you have every right to pursue on your own if you wish, with that being said I feel the EA should have informed me.

One more thing, we asked TW that prior to completion is it unreasonable to instruct our EA and TW to try and get more than £140k if possible and they said no it's entirely up to us, but if a buyer came along they said the first one would be accepted and they would not bother entering into negotiations with a buyer for risk of them losing a potential sale. TW accepted the offer and must have done so before the 30/08/2011 through the EA.

I thought the EA would have at least informed us of this? sure TW may have been their client at this point but it certainly wasn't their house at this stage?

JQ.

I'm sorry, but you really are banging your head against a brick wall here and you are just going to waste alot of time going nowhere quickly.

Personally, I don't see what the problem is - to me everyone appears to have acted exactly as they would under the circumstances presented. It just appears like sour grapes because the developer has not lost any money on your house, or been stuck with it for 18 months, and therefore with hindsight you've realised you'd have been better off not entering into the px agreement. However, that is exactly what px'ing is all about, taking away the uncertainty for which you have paid a financial price.

I have absolutely no doubt that when the EA was presented with a signed agreement by their client agreeing to sell the house to a developer, thereby removing the EA's ability to secure a fee and agreeing that the developer could continue marketing the property they considered their contract with you terminated.

The only way I consider you would have a case would be if after signing the px agreement that you entered into a new contract with the EA where you agreed to pay them a fee irrespective of whether you sold to the developer or not, or were you expecting the EA to work for free?

badaz52

I wouldn't say sour grapes. I was happy entering into the PX agreement as we had no firm offers on the table and believed the house would not sell and had been on the market for 10 months. It would have sold if it was priced right!. I was happy with the price agreed, I was informed that as it was still my house until completion, the final decision is mine and the PX agreement clearly implies that it was not a legally binding agreement as you can opt out or pursue the sale on your own if you so wish.

My complaint is did the EA or TW have any legal duty to inform me that another offer had been received? Ok you could argue that the £140k PX offer we accepted was in writing from TW BUT that was only a provisional offer that really never went through, they never took ownership they only held it till the following day when the lady was ready to complete.

1. TW offer us £140k in writing we accept, this offer never came through the EA just direct to us via PX agreement
2. Pre-completion TW receive an offer through EA for £140k from a private buyer and they accept without letting us know, TW working on our behalf, EA working on TW's behalf, surely someone should have told us regardless of our prior contract with EA?
3. Contact with EA and TW at various intervals to exchange information with regards to gas/electric certificates etc, no mention at any point that they had a private buyer
4. Completion of new build 30/08/2011, still no idea if the house had been bought by anyone other than TW
5. Completion of px'ed house to new purchaser 31/08/2011

GDB2222

badaz52 wrote: »

I'll dig out the contract we signed with the EA. IIRC it gave them the marketing rights for a set period of time during which if a buyer was found with another EA we would owe them money for marketing up to that date. Other than that I'm pretty certain that it's marketed until either party ends the contract.

I know that you will tell me the PX agreement ended the contract but surely in this world we live in that would have to be in black and white?

What does the EA contract say about terminating it?

By the way, have you taken legal advice yet?

JQ.

I understand why you're annoyed, what I'm saying is that I don't see it has any validity in it and I wouldn't be annoyed in such a situation as it is exactly what I would have expected to happen in these circumstances.

The facts are you agreed to sell your house for £140,000 - it sold for £140,000. You agreed to buy your new house for £123,456 and bought it for £123,456. Eveything else is ifs, buts and maybes. There is no actual loss.

Out of curiosity, did the mortgage valuation of your new house agree with the purchase price?

badaz52

The mortgage valuation of the new house was the same as the purchase price yes.

GDB2222, currently working on getting legal advise, getting all my documentation ready to take to someone.