Estate Agent fee; The Property Ombudsman interpretation.

principlecounts

I've escalated this to a first stage complaint, and have got basically the following reply with my comments:

"However, there are terms outlined in your Agency Agreement explaining that fee was £3,000 excluding VAT, and that you have two weeks from the signing of the contract to cancel the Agreement with no further obligations if you do not agree with any of the points enclosed."

>>This is moot. I was happy this was £3000 inclusive of VAT. so no need for me to disagree so soon.

"Furthermore, I note that you received your Memorandum of Sale on 8th April 2015, which also clarified that the fee was £3,000 excluding VAT."

>>Again moot. I actually double checked two months before as exchange was getting close, and got no reply until 14 weeks later! So they've portrayed me in a negative light. I have evidence to screw them over at TPO for this.

"The Agreement you signed also contained a clause stated that you had read and understood the terms of the agreement, therefore the full fee is payable."

>> Full fee as written in the contract, £3000 exc. VAT. Total left blank. Hence VAT not clear.

To give this more substance, I came across this, which discusses the ambiguity of guidance about E.A. and VAT.

(c) the total price of the goods or services inclusive of taxes, or where the nature of the goods
or services is such that the price cannot reasonably be calculated in advance, the manner
in which the price is to be calculated;

Ref: http://www.legislation.gov.uk/uksi/2013/3134/schedule/1/made

I'm still going to argue my case, but do I stand a chance with this regulation?

principlecounts

Just to recap, the contract prints as follows:

£ 3000 plus VAT TOTAL £ <empty>

Photographic link: http://postimg.org/image/iaclzgqdz/

Interesting court case about exc. VAT.

http://www.morton-fraser.com/knowledge-hub/exclusive-vat-not-always-enough

principlecounts

Just drafted a letter. Fingers crossed.

Thank you for taking the time to investigate my complaint. However I am not satisfied with the conclusion for the following reasons:

“However, there are terms outlined in your Agency Agreement explaining that fee was £3,000 excluding VAT, and that you have two weeks from the signing of the contract to cancel the Agreement with no further obligations if you do not agree with any of the points enclosed.”

The Agency Agreement states £3000 plus VAT. However, the ‘Total £’ field was left empty. This supports my claim that VAT was verbally waived and agreed during the conversation as described in my original complaint; “£3000 and nothing more” is the commission fee my wife, I (as average people) and the negotiator understood at the time. Hence, I did not have the need or desire at the time to question the agreed commission fee within two weeks. It was only when our property was getting closer to a possible exchange day did I formally request a confirmation of the full commission fee. That is my final position.
Related to the above, in your Terms & Conditions, it states: ‘The Commission Fee is the amount set out in the Agency Agreement.’ Is this the ‘Countrywide Agency’ field or the the ‘TOTAL £’ field? This is not clear, and raises (suspiciously) the question, what is the purpose and relevance of the ‘TOTAL £’ field. Especially when not filled.

Furthermore, I note that you received your Memorandum of Sale on 8th April 2015, which also clarified that the fee was £3,000 excluding VAT.

Yes, this is true. However an enquiry about confirmation of the commission fee was sent before on 20th February 2015, together with a follow up enquiry after 14 weeks. An official answer from a member of Taylor’s staff wasn’t received until 21 weeks later from the original enquiry.

The Agreement you signed also contained a clause stated that you had read and understood the terms of the agreement, therefore the full fee is payable.

Yes, I understood the terms of the Agreement, and therefore the full fee payable is £3000 and nothing more.

You will also be aware the Agency Agreement is under the protection of the Consumer Protection Regulations 2013. I wonder how the Agency Agreement will play out against Paragraph 9 together with Schedule 1 of the Regulation.

9.—(1) Before the consumer is bound by an on-premises contract, the trader must give or make available to the consumer the information described in Schedule 1 in a clear and comprehensible manner, if that information is not already apparent from the context.
>> verbal and written information overall is not clear. ‘Total £’ field not filled. £3000 verbally agreed, hence £3000 written on Agreement.
(2) Paragraph (1) does not apply to a contract which involves a day-to-day transaction and is performed immediately at the time when the contract is entered into.
>> N/A
(3) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
>> Not sure. Maybe verbal information provided is included here.
(4) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.
>> I do not agree that VAT is paid.
Schedule 1:
(c)the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;

>> https://www.estateagenttoday.co.uk/1297-the-complicated-relationship-between-agent-s-fees-and-vat

kinger101

If you do get anywhere with this, it's on a technicality. Based on the document you uploaded showing the empty box, the sensible thing to do would have been to seek clarification.

I can't help thinking you deliberately omitted to query this at the time to potentially raise a claim. On the other hand, I can't help thinking the EA left it blank to make their fee appear smaller.

You're letter lacks clarity and contain inaccuracies. An EA does not have authority to waive VAT. It's best to keep it concise - surely your aim is to get them to close the case so you can refer it with the ombudsman.

knightstyle

Well I would have thought that a £3000 plus vat means exactly that!
It is how companies protect themselves against increases in vat coming out of their fees and is used when there is liable to be a long time between signing and paying.
It looks reasonable to me. But if there was a verbal agreement for the £3000 to include vat why wasn't the +vat crossed out on the document? I think you are wasting your time.

principlecounts

@kinger - yes I do agree, my letter is on the brash side, but I'm just arguing my points. How would I deliberately overlook this to claim? When I was verbally told the exact price. In addition, they made no response about my commission enquiry after 21 weeks! - TPO would question that.

@knightstyle - I think my chances are slim. But why is the 'TOTAL £' left blank?

I was just about to send the letter. I'm just going to shorten it, and leave the points I've made to fight it out with the Ombudsman.

DandelionPatrol

On the whole, I think this one is unlikely to be a winner - although the agent might have his knuckles rapped. However, the following opens an possibility

principlecounts wrote: »

"The Agreement you signed also contained a clause stated that you had read and understood the terms of the agreement, therefore the full fee is payable."

You could say "Indeed, and my understanding is XXXX" which would be difficult for them to respond to [so it might be ignored ... ]

principlecounts

DandelionPatrol wrote: »

On the whole, I think this one is unlikely to be a winner - although the agent might have his knuckles rapped. However, the following opens an possibility

You could say "Indeed, and my understanding is XXXX" which would be difficult for them to respond to [so it might be ignored ... ]

Yes, in a line, I said words to those effect. I'm going to let the Ombudsman deal with the nitty gritty. Thanks. Would be a miracle case law. I've had miracles. happen

principlecounts

So I've come to a conclusion. I've accepted £300 to settle this complaint early since I have no time to spend on this. This still does a leave an open question about leaving a total box empty in a signed contract, and one I think the estate agent in question are uncertain about themselves. Maybe any pro-bono lawyers want to go 50-50 on winnings then be my guest, I'll put you in touch with the TPO.

I didn't waste my time. Never give up. Adios.

marksoton

principlecounts wrote: »

I didn't waste my time.

Well you did. And everyone else's. Ridiculous.