Beware! Estate Agent Agreement Terms :: Penyards Country Properties

haras_nosirrah

Also did they sell to this buyer via another agent or did they take the house off the market and the buyer contacted them privately

If it was sold via another agent I would say it is fair enough not to pay twice and they could argue the other agent did the work to secure the sale

If the buyer contacted them directly and this was done privately then I would agree with the agent as if they hadn't introduced the buyer they never would have bought it

BlimeyOriely

In summary Penyard's contract was terminated due to the 'unsatisfactory service received'. A new agent was appointed and a person who had viewed with Penyard's 18 months previously bought through the new agent. Penyards then relied upon the clause in the terminated contract to pursue their fee having done absolutely nothing to secure a sale - in effect they expected the home owner to pay TWO fees plus all costs.

Penyards refused to go to arbitration and aggressively pursued legal action

This is the term in question and according to the Unfair Contract Terms Act 1977 http:// www. legislation .gov.uk/ukpga/1977/50 (had to break link as not enough posts) and TPO guidelines should never be included in an agent's agreement unless specifically negotiated - if it is not then according to the act it cannot be relied upon. This term is from Penyard's contract:

‘You will be liable to pay our fees … if unconditional contracts for the sale of the property are exchanged after the expiry of the period which we have sole selling rights but a particular purchaser who was introduced to you during that period or with whom we had negotiations…’

The Test:

A standard term is unfair 'if, contrary to the requirement of good faith, it
causes a significant imbalance in the parties' rights and obligations arising
under the contract, to the detriment of the consumer'– Regulation 5(1).
Unfair terms are not enforceable against the consumer.

The requirement of 'good' faith embodies a general 'principle of fair and
open dealing'.1
It means that terms should be expressed fully, clearly and
legibly and that terms that might disadvantage the consumer should be given
appropriate prominence – see below. However transparency is not enough
on its own, as good faith relates to the substance of terms as well as the
way they are expressed and used. It requires a supplier not to take
advantage of consumers' weaker bargaining position, or lack of experience,
in deciding what their rights and obligations shall be. Contracts should be
drawn up in a way that respects consumers' legitimate interests.

pinkshoes

BlimeyOriely wrote: »

In summary Penyard's contract was terminated due to the 'unsatisfactory service received'. A new agent was appointed and a person who had viewed with Penyard's 18 months previously bought through the new agent. Penyards then relied upon the clause in the terminated contract to pursue their fee having done absolutely nothing to secure a sale - in effect they expected the home owner to pay TWO fees plus all costs.

Penyards refused to go to arbitration and aggressively pursued legal action

When you change agents, you need to ask the original agent for a list of all buyers that they have introduced.

Penyards introduced this buyer to your house, so although you sacked them, it was them who found the buyer, so you owe them a fee.

Did the buyer not think to mention to your second agent that they had viewed it previously? Did your second agent not think to ask the buyer if they had seen it before or why they were interested?

It seems to be your second agent at fault, NOT Penyards.

You should be getting them to share the fee, or the fee going to Penyards.

bod1467

Yes, but as I asked earlier ... how long should the previous EA have prior rights? 1 year? 2 years? 5 years? Forever?

IMHO 1 year is more than reasonable.

BlimeyOriely

pinkshoes wrote: »

When you change agents, you need to ask the original agent for a list of all buyers that they have introduced.

To answer - bod1467 - the codes of practice and contract laws state 6 months unless specifically stated - the viewer Penyards sought to seek a fee for was over 18 months after first viewing and over 6 months after termination of contract.

Actually The Property Ombudsman and National Association of Estate Agents State that THE AGENT must supply a list of people and state the terms of the termination of contract if they intend to rely on it in the future.

Remember, people selling their home are lay and should not be expected to know the ins and outs of Agent's clauses.

You are also missing the point in that the clause is actually illegal in the first instance in breaching the unfair contracts act. This could happen to anyone selling a house so it needs to be put out there.

When you sell through a second agent you are already in a contract with them so are actually liable to TWO fees if the origional contract was to stand, which is why the agent has to outline their terms of termination so that a customer can enter into a new contract.

hollydays

http://governmentauctionsuk.com/news-details/seller-beware-dodgy-agency-agreements-aggressive-estate-agents/73736

hollydays

I'm puzzled by your comment " the court failed to present a defence" on your behalf.do you mean your solicitor didn't turn up?

pendragon_arther

I'd never use an estate agent as such. You can sell online for as little as £1000, even Tesco does it now.

hollydays

pendragon_arther wrote: »

I'd never use an estate agent as such. You can sell online for as little as £1000, even Tesco does it now.

I have to disagree. A buyer of my last house tried to sell privately and was naive and got Messed about by their so called buyer, who was actually a property speculator who targeted people like this and had four or five of them on a string at the time. Let everyone down at the last minute, while not incurring any solicitors fees themselves.estate agents knew this buyer and could have warned her.

timbstoke

hollydays wrote: »

I'm puzzled by your comment " the court failed to present a defence" on your behalf.do you mean your solicitor didn't turn up?

That jumped out at me too.