Ready, Willing and Able Buyer

Pendsive

I've actually found another clause in the same contract that might shed more light to the previous clause that was posted "A purchaser is ready, willing and able if he/she or they are prepared and is able to exchange unconditional exchange of contracts of the purpose of the purchase of your property at the agreed price. They are considered able if the agency is in receipt of proof of funding for the transaction" This is then followed by "You will be liable to pay the agency fee to the agent in addition to any other costs or charges agreed if such a purchaser is introduced by the agent in accordance with your instructions and this must be paid even if you subsequently withdraw from the sale and unconditional contracts for sale are not exchanged, or you decide not to proceed with the full asking price offer from a proceedable purchaser, irrespective of your reasons"

The second clause here confirms what verytired has stated but it does seem that the client also has to be in a fully qualified position as well.  

Pendsive

GDB2222 said:

Pendsive said:

GDB- Yes I've seen that disclaimer and would always assume that to be the case anyway..

NameUnavailable- Yes that is a valid point

Verytired-- What you've stated seems to be similar to what GDB said BUT you've gone a bit deeper and taken the process much further back. So going back to my original post, does not the agent have to prove that they have found a ready, willing and able buyer, as in that their mortgage has been approved, surveyor was sent around (which the mortgage needs for approval) the seller has replied to the buyer's solicitor requests and the buyer is financially in a position to exchange? From what I understand from your post, it just seems that if the agent has a buyer that wants to buy and the seller withdraws they would then be eligible to receive their fee, regardless of the buyer not fulfilling the financial/legal criteria that I've already mentioned.

How far does the buyer need to go in the whole process to legally be termed a "ready, willing and able buyer"?. .

Perhaps you could answer two questions:

1. Are you the seller?

2. If so, what is the exact wording of your contract with the estate agent?

A family member is the seller and I've put two other important clauses in the next post which were in a separate place to the one I had put originally listed from the contract.

AnotherJoe

Pendsive said:

GDB2222 said:

If you exchange contracts, that's agreed. Otherwise, not.

Ok, so if anytime before an exchange of contracts takes place and the seller decides not to sell, they wouldn't be liable to pay the agent's commission?

I dont think so at all.Look at the wording

If a sale is agreed to a ready, willing and able purchaser/buyer, the agency reserves the right to charge the full fixed fee that would've been payable upon the unconditional exchange of contracts"

Its clearly there so that if a sale is agreed and then you back out, you can be charged. I suspect most wouldnt but suppose you agree to sell to Mr Annoying, then decide to back out and go with another agency and look for someone less annoying. They might well decide to charge you then.  IANAL but thats what it reads like to me. Ask yourself what other function that wording serves.

Thats why it states "would have been payable upon exchange"

Have you signed / agreed to this?

EDIT: Just seen your post at 9:36, which agrees with this.

Pendsive

My father has signed this contract and I've only become aware of the terms and conditions of them. He is over halfway through the contract and the agency has found a buyer for the property at the agreed price. But unfortunately his health has now seriously declined and he doesn't want to move house for medical reasons at the moment. The buyers from what I understand are in the early stages and are in a chain with the house under offer. Also they have had an appointment with their mortgage broker but as for how that has gone we don't know and that was meant to have taken place over a week ago. There has been no request as of yet for a surveyor to come round and no contact from either the client or agent. In fact the buyer has seems to be going very slow imo with the process, so I really don't know how great their own buying situation is.

I've now taken over the situation on behalf of my father and trying to remedy the situation the best I can. Under normal circumstances he would be happy to go ahead with the sale but unfortunately the situation has changed and the thought of moving is now depressing him, especially since the hospital and health services he needs are very close by.

eddddy

Pendsive said:

My father has signed this contract and I've only become aware of the terms and conditions of them. He is over halfway through the contract and the agency has found a buyer for the property at the agreed price. But unfortunately his health has now seriously declined and he doesn't want to move house for medical reasons at the moment. The buyers from what I understand are in the early stages and are in a chain with the house under offer. Also they have had an appointment with their mortgage broker but as for how that has gone we don't know and that was meant to have taken place over a week ago. There has been no request as of yet for a surveyor to come round and no contact from either the client or agent. In fact the buyer has seems to be going very slow imo with the process, so I really don't know how great their own buying situation is.

I've now taken over the situation on behalf of my father and trying to remedy the situation the best I can. Under normal circumstances he would be happy to go ahead with the sale but unfortunately the situation has changed and the thought of moving is now depressing him, especially since the hospital and health services he needs are very close by.

I have had a number of arguments with EAs about "ready, willing and able buyer clauses" (before signing the contract) - they are a recipe for disputes.


One way of getting around the issue might be if you can persuade the buyer to withdraw. If the buyer withdraws you (almost certainly) don't have to pay a fee. Perhaps say things to the buyer like...

 "Your father has taken a turn for the worse. It may be some time before he he feels able to look for a place to move to. If he takes another turn for the worse he might decide not to move at all. You thought you should tell the buyers before they spend too much money on legal fees, mortgage applications, surveys etc, which they might lose. You would completely understand if the buyers choose to withdraw on this basis."


But you'd have to 'play the game' with the EA - they'll probably try to get you to say you're withdrawing - so that they can claim their fee.  So perhaps your answer would be "No we're not withdrawing at this stage. We're waiting to see how things develop."


And maybe expect a bit of a hard time from the EA.

NameUnavailable

Surely your buyers aren't ready or able to exchange as they have to complete their sale and have to get a mortgage approved. Just advise the agent you have to withdraw the property due to your fathers ill health and you have good grounds to dispute any threat of legal action if they go after the fees.

steampowered

The meaning is "ready, willing and able" has been subject to court litigation and to a number of decisions by The Property Ombudsman.

The Property Ombudsman is advising agents against the use of the term in their contracts because it is too ambiguous. 

That Ombudsman has expressed a view that "ready, willing and able" basically means ready to exchange with all funds in place. In the conveyancing world that is basically the same thing as exchanging.  

But the Ombudsman's view is not legally binding, and you can get estate agents trying it on. It is best to insist that "ready, willing and able" clauses are removed before signing up with an agent - payment should be made on completion.

AdrianC

If the buyer pulls out, they do not fit the "ready, willing and able" test.
If the vendor pulls out, leaving the buyer hanging, they did...

The main time this could really cause an issue, assuming the vendor doesn't actually just change their mind, is if an upward chain collapses with the vendor unwilling to break the chain to preserve the sale.

AnotherJoe

AdrianC said:

If the buyer pulls out, they do not fit the "ready, willing and able" test.
If the vendor pulls out, leaving the buyer hanging, they did...

The main time this could really cause an issue, assuming the vendor doesn't actually just change their mind, is if an upward chain collapses with the vendor unwilling to break the chain to preserve the sale.

Good point by NameUnavailable above though, as the buyers dont currently have their mortgage, they fail on both ready and able, so if father pulls out now, it should be OK.. (disclaimer IANAL )

AdrianC

AnotherJoe said:

AdrianC said:

If the buyer pulls out, they do not fit the "ready, willing and able" test.
If the vendor pulls out, leaving the buyer hanging, they did...

The main time this could really cause an issue, assuming the vendor doesn't actually just change their mind, is if an upward chain collapses with the vendor unwilling to break the chain to preserve the sale.

Good point by NameUnavailable above though, as the buyers dont currently have their mortgage, they fail on both ready and able, so if father pulls out now, it should be OK.. (disclaimer IANAL )

Unless there's a strong counterindication to them actually being able to borrow, I think you'd be stretching.