Agent threatening to sue vendor

esnelling

Hi

I registered with an agent in the area in which we want to buy - 60 miles from where we live.

The first viewing we had with them, we drove specifically for and were met by a frosty, unhelpful and rude agent who made no attempt to answer our questions or find out the information we needed. I phoned the agency after the veiwing to give them feedback and initially was given a sincere apology.

We had a second viewing lined up with the same agency for the following weekend but during the next week I had a call from the owner of the agency who was extremely angry with me for making a complaint against her agent and was told that she had removed us from their books. Our veiwing was cancelled.

As we were really keen to see the second property and the agency was the sole agent, we wrote to the owner and explained what happened and said that if she wanted to deal with us directly to get in touch.

The owner got in touch and explained that she was going to disinstruct the agents anyway as had found them to be pushy and we arranged to see the house after the agents had been disinstructed.

We have since made an offer which was accepted and we appointed solicitors. The agency, through an error that the solicitors made, have since found out that the vendor is dealing with us directly and is threatening to sue.

Do they have a leg to stand on since a) they were not acting in the vendors best interests by removing us from their books before showing us the property; b) they had been disintructed before we saw the property and c) they did not introduce us?

Thanks

nidO

Points b and c are not relevant as the contract between the agent and the vendor will cover these scenarios (they introduced you at the first viewing and the contract will probably state that introductions are valid for 6 months or so even if the agent has been disinstructed or the vendor goes to a different agent but then still ends up selling to you anyway).

The key though is really that the agent refused to continue your contact with the seller, effectively trying to prevent you from buying the place - The vendor pretty much has the agent over a barrel on this one, the agent has effectively disavowed any interest in you buying the property which means they can't then turn round and claim fees.
If I was the vendor I would be replying to the agent telling them very bluntly to do one, and also threatening to counterclaim back to the agent for any fees already paid, interest on their own mortgage for however much longer they think it might have taken them to make the sale with you having to go direct, and any other vague out-of-pocket expenses I could conjure up thanks to the agent not doing what they were contracted to do in getting a buyer to buy my property, and actively inhibiting the process.

None of this is legal advice though obviously, the vendor will probably want to read the exact wording of their contract with the agent and possibly get a free 30 minute consultation with a litigator to ask their initial thoughts on the claim's validity.

googler

It's a matter between the EA and the vendor, and not an issue for you to concern yourself with.

However, I seriously question how the EA can claim a fee for a sale to a buyer whom they expressly rebutted, out of nothing but petulance?

Ivana_Tinkle

Not sure how constructive this is, but if I were the vendor I'd tell the agent to go ahead and sue, and mention what a great story it would make for the local paper.

anselld

The EA will claim that you were introduced to the property/vendor via their marketing of the property. That view will be supported by the fact that you initially tried to view via them. The fact that they declined to offer a viewing does not really alter the fact that they introduced you to the property.

Can they make it stick? I don't know, but as googler states it is not your problem, it is a matter for the vendors.

princeofpounds

Can they make it stick?

Very unlikely.

The recent Foxtons vs Pelkey Bicknell decision confirmed a higher burden on estate agents to prove they actually introduced the buyer to the transaction, and not merely the property.

You can google it all over the web.

Given that in this case the agents were actively blocking a transaction, it would be very hard for them to claim they were the effective cause of the sale.

AdrianC

esnelling wrote: »

Do they have a leg to stand on since ... they did not introduce us?

How did you first become aware of the house being for sale? Was it because of the agency's marketing efforts (rightmove, for sale sign, own website etc)?

If so, then there's a strong argument to say they DID introduce you to it.

anselld

princeofpounds wrote: »

Very unlikely.

The recent Foxtons vs Pelkey Bicknell decision confirmed a higher burden on estate agents to prove they actually introduced the buyer to the transaction, and not merely the property.

You can google it all over the web.

Given that in this case the agents were actively blocking a transaction, it would be very hard for them to claim they were the effective cause of the sale.

Fair enough then. I hope you are right, they certainly deserve no more than a poke in the eye.

moneyistooshorttomention

I'm reading it that the EA refused to show the OP the second property.

Being me, I'd quite possibly head into the EA's office and tell them what for in no uncertain terms and that they weren't paid by people to "have opinions". Though, I guess, wiser counsel might be to write them a strongly-worded letter and then tear it up.

But..yep...best for the owner of House 2 to be the one telling this EA that they clearly hadn't "fulfilled their contract", as they had refused to introduce a proceedable buyer asking about it (ie OP) and this proceedable buyer would back them up, if need be, that they were blocked by the EA and therefore the EA didn't deserve a fee.

I bet they wouldn't want to argue it out in court as to whether they were or weren't entitled to their fee, as OP could instantly tell the judge the full circumstances and he/she might very well not rule in favour of the EA.

I am guessing it would only be a small claims court matter anyway and therefore no big deal if the EA did try and sue.

It's my guess that the EA is all "bluff and bluster" and have just put a paper tiger on the table to roar and one quick "light of a match" later of a comment and that tiger would go up in flames and that's the end of the matter. The boss of EA agency was obviously having a bad day and chose to take it out on someone else and picked on OP as fall guy for THEIR bad temper. Goodness knows why they were so unprofessional...but they may already be hoping that no-one realises it was just a paper tiger.

bouicca21

I apologise that this is a bit of a hijack, but the case law raises some intriguing possibilities. As I understand it case law distinguishes between contracts with EAs entered into by the purchaser and contracts by the vendor.

So here is a hypothetical case: I have just seen a house up for sale by tender. I have no contract with the EA that can be enforced. I can however identify the house and could approach the vendors direct. The vendor's contract with the EA presumably mandates that EA fees are to be paid by the purchaser. What is to stop the vendor from entering into a private sale and thus subverting the intentions of the (shark) EA?

I'm not going to do this, just wonder how a court might interpet these new style contracts for sale by tender. Does anyone have any idea of the sort of terms and conditions sale by tender contracts contain?

eddddy

bouicca21 wrote: »

I apologise that this is a bit of a hijack, but the case law raises some intriguing possibilities. As I understand it case law distinguishes between contracts with EAs entered into by the purchaser and contracts by the vendor.

So here is a hypothetical case: I have just seen a house up for sale by tender. I have no contract with the EA that can be enforced. I can however identify the house and could approach the vendors direct. The vendor's contract with the EA presumably mandates that EA fees are to be paid by the purchaser. What is to stop the vendor from entering into a private sale and thus subverting the intentions of the (shark) EA?

I'm not going to do this, just wonder how a court might interpet these new style contracts for sale by tender. Does anyone have any idea of the sort of terms and conditions sale by tender contracts contain?

Hi bouicca21

As you might expect, the EAs have thought of this and protect themselves with a Sole Selling Rights contract. Essentially, the contract says that if the buyer doesn't pay a fee, then the seller must pay instead.

Here's an example extract from a contract:

Sole Selling Rights I]EA Name[/I will have Sole Selling Rights from the date of this agreement, throughout the period of the tender process and for a period of 28 days following the tender closing date. If either party wishes to terminate this agreement on or after this time 14 days Written notice will be required.

You will be liable to pay remuneration to us, in addition to any other costs or charges agreed, if unconditional contracts for the Sale of the property/land are exchanged,

- in the period during which we have sole selling rights if you sell to a purchaser who was not found by us but by another agent or any other person, including you,

Or
- after the expiry of the period during which we have sole selling rights but to a purchaser who was introduced to you during that period or with whom we had negotiations about the property during that period.

Or
- in the period during which we have sole selling rights, if you still wish to sell to a purchaser who did not sign the tender bid form agreeing to pay the introduction such cases we will inform you of this when submitting the offer and you will be liable for our fee in place of purchaser if You accept the offer and contracts exchange. In such cases this remuneration will amount to 2%+VAT of the contracted sale price of the property/land or £2,000.00