Agent wars

eddddy

Bizzywizard wrote: »

If you were introduced to the buyer by your first estate agent and you then agree the sale when with the 2nd agent. The first agent will be entitled to their fee on exchange of contracts.

No - if you let that happen you will have to pay both agents' fees.

In the OP's case, the buyer must only deal with the first agent - and have no contact with the second agent.

(Even though the first agent is no longer marketing the property.)

That way, no fee would be due to the second agent.

googler

Tell agent 1 to refer the buyer to agent 2 and to make any commission-sharing agreement, of agent 2's fee ONLY, between them. Tell agent 2 to keep you appraised of progress, and that they are not to reject any approach from Agent 1 or the buyer without express approval from you.

Tell agent 1 that their only avenue to receiving commission from you is via commission share with agent 2, since agent 2 is now under instruction from you, and agent 1 is not.

Agent 1 does not have the right to accept an offer from this buyer on your behalf, as they are not under instruction to sell the property. They are not currently your agents. The only agents you have currently instructed, and the only ones with authority from you to receive and accept offers, are agent 2.


The above based on not having seen either contract with agent 1 or 2.

eddddy

googler wrote: »

Tell agent 1 to refer the buyer to agent 2 and to make any commission-sharing agreement, of agent 2's fee ONLY, between them. Tell agent 2 to keep you appraised of progress, and that they are not to reject any approach from Agent 1 or the buyer without express approval from you.

Tell agent 1 that their only avenue to receiving commission from you is via commission share with agent 2, since agent 2 is now under instruction from you, and agent 1 is not.

Agent 1 does not have the right to accept an offer from this buyer on your behalf, as they are not under instruction to sell the property. They are not currently your agents. The only agents you have currently instructed, and the only ones with authority from you to receive and accept offers, are agent 2.


The above based on not having seen either contract with agent 1 or 2.

That is completely wrong! Have you ever read an EA's contract?

The EA that INTRODUCED the buyer gets the fee.

In this case, EA1 introduced the buyer.


So in this case, the buyer should be told not to deal with EA2, only EA1. Because EA1 introduced the buyer.

kazzamunga

Ok so when I rang up EA2 he straight up said that we should go for the offer. Which was surprising. I've now asked him to put in writing that they wouldn't ask for any fees - bit of a delay on that one...so we'll see.
I'm trying to figure out the investor's intentions with his offer though. Why would an investor come back to a property 3 months later and put in another offer? Is there a chance he's trying to see whether we're desperate and then try to drop the price once we're committed? I wonder if there's anything we can do to protect ourselves, or to prove that he's serious and won't pull out again? It's weird because it definitely cost him money last time, so why would he want to do that again?

eddddy

kazzamunga wrote: »

Ok so when I rang up EA2 he straight up said that we should go for the offer. Which was surprising. I've now asked him to put in writing that they wouldn't ask for any fees - bit of a delay on that one...so we'll see.

TBH, if I were EA2 I think I'd probably say something like "the contract is already in writing, there's no need for me to add anything to the contract." (But to be clear, I'm not an EA)

kazzamunga wrote: »

I wonder if there's anything we can do to protect ourselves, or to prove that he's serious and won't pull out again?

I guess you need to consider the facts of situation. For example:

• What was the reason for the buyer pulling out the first time?
• What has happened to make the buyer change their mind again?
• What assurances can the buyer give that they won't change their mind again?

(I guess possible reasons include: He found a property he liked better. That's fallen through, so he's come back to you.)

In terms of protecting yourself:

• you could insist on leaving the property on the market while the conveyancing progresses

• in theory, you could insist on some kind of pre-contract deposit - but that may end up being more hassle than it's worth

kazzamunga

eddddy wrote: »

TBH, if I were EA2 I think I'd probably say something like "the contract is already in writing, there's no need for me to add anything to the contract." (But to be clear, I'm not an EA)

I don't think their contract is quite clear enough for me to accept that. I do think they could come back afterwards and say that the buyer had found out about the flat still being available through their online advertising. So I need them to confirm it, and I bet he won't. In which case, it's dead in the water anyway.

Yeah I do think he might have lost out on another deal. the old agents actually do do a deposit thing, they supposedly make all their buyers do it. So it might be possible to do that.

eddddy

kazzamunga wrote: »

I do think they could come back afterwards and say that the buyer had found out about the flat still being available through their online advertising.

And why is that a problem for you?

Is there a term in their contract that says you have to pay a fee in those circumstances? (I'm pretty sure there won't be.)

Their contract is a legally binding agreement. They can't 'make-up' new terms later on.

If you really want to cover your back, send the EA an email or letter saying something like:

In confirmation of our phone conversatoin on 22nd Jan.

I have received an offer on my property from Mr xxxxxxx, which I am considering.

Mr xxxxxxx was introduced to my property by [EA1] on [date]. Therefore, should Mr xxxxxxx purchase my property, I will pay a fee to [EA1].

Mr xxxxxxx was not introduced to my property by you, and has not had any negotiations about my property with you. Therefore, based on the terms of your contract, no fee would be payable to you in relation to this transaction.

If you disagree, and feel that some fees would be due to you in relation to this transaction, please let me know immediately.

Mutton_Geoff

eddddy wrote: »

That is completely wrong! Have you ever read an EA's contract?

The EA that INTRODUCED the buyer gets the fee.

In this case, EA1 introduced the buyer.


So in this case, the buyer should be told not to deal with EA2, only EA1. Because EA1 introduced the buyer.

Completely agree, but at the time of signing there was no prospective buyer. Agent 2 could legitimately claim they introduced the buyer (again) through their Rightmove ad (they wouldn't have even needed a point of contact, a board outside the house is sufficient). I know because I tested this in court and lost.

kazzamunga

Here's some more context from the contract. The timescales aren't what I signed up to - we're 16 weeks with 4 weeks' notice:

Sole agency
Where [the agent] act on your behalf as your sole agent, you will be liable to pay remuneration to us, in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the property are exchanged with a purchaser introduced by us during the period of our sole agency or with whom we had negotiations about the property during that period; or with a purchaser introduced by another agent or any private introduction during that period. Sole agency instructions are subject to a minimum contract period of 24 weeks. Either party may terminate such a contract by giving 4 weeks’
notice in writing. Such notice cannot be served prior to the twentieth week of instruction due to this minimum period.

Multiple agency
Where [the agent] is instructed along with other agents, you will be liable to pay remuneration to us, in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the property are exchanged with a purchaser introduced by us during the agency period or with whom we had negotiations about the property during that period or with a purchaser to whose attention we brought the availability of the property. A multiple agency instruction can be terminated at any time by either party by giving 4 weeks’ notice in writing.

When you become liable to pay
The fee becomes payable in the event [the agent] introduces a purchaser whether directly or indirectly who enters into a binding contract to purchase the property. Introduction may be made by means of sales particulars, the internet, magazine or other advertisements, sign board, letter or personal enquiry through any [agent] office. In the case of a sole agency agreement, the fee becomes payable to us even in the event that another agent introduces the buyer or if any private introduction is made during
that period. For the avoidance of doubt and without prejudice to the above where a purchaser is introduced by [the agent] to the property, they will be deemed to have been introduced to the purchase. Furthermore, where a purchaser is introduced by [the agent] to the property, [the agent] shall be deemed to be the effective cause of the purchase. For these purposes, an introduction shall be deemed to have occurred where [the agent] has brought the property to the attention of the eventual purchaser.

kazzamunga

Mutton_Geoff wrote: »

Completely agree, but at the time of signing there was no prospective buyer. Agent 2 could legitimately claim they introduced the buyer (again) through their Rightmove ad (they wouldn't have even needed a point of contact, a board outside the house is sufficient). I know because I tested this in court and lost.

Do you think that if we can get an email from the agent saying explicitly that he agrees to us accepting the offer and won't ask for fees, that'll be enough to stop this from happening?