Sole agent vs sole seller T&C

Delta_1984

Hi All, 

We are selling with one of the big high street EAs, however before our ad went live we showed round some friends who confirmed they would like to make an offer. EA have said that according to our T&C we owe them the commission regardless. T&C copied below - I think this just stating sole agency conditions, not sole seller - and therefore we 'could' sell privately and save the commission? The EA were adamant however that they would be owed. 

SOLE AGENCY You will be liable to pay commission 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 by a website / portal other than our own during that period.
• If a Sole Agency is agreed it shall last for the period stated on the agreement overleaf. After the Initial Period, the sole agency agreement will continue until either you or we bring it to an end, in writing and giving 28 (twenty eight) days notice. Notice can be given within the initial period to end at the end of the Initial Period. 
You confirm that no introduction of a perspective purchaser for the property has been made already.
If another agent is instructed, or where a website/ portal other than our own is used during our Sole Agency, and 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, then you will be liable to pay a Multi Agency Commission Fee which will be charged at the higher rate than applicable to a sole/ joint sole agency and this rate is 3% + VAT (3.6% in total) of the selling price, where no other written arrangement has been agreed. In consideration of us marketing your property, we shall be entitled to our fee on sale for a purchaser we have introduced even if we are not the effective agent at sale.

eddddy

In your position, I might reply to the estate agent saying something like...

"Looking at your terms and conditions:

• You did not introduce the prospective buyer
• You did not negotiate with the prospective buyer
• The prospective buyer wasn't introduced by another agent or website/portal
• No introduction of a prospective purchaser had taken place at the time we had entered into a contract with you
• No other agent has been instructed

So please clarify which term in your contract you believe makes me liable to pay you a fee?"

I guess the follow up depends on the estate agent's response. (For example, if they claim that they introduced the buyer in some way.)

Is the estate agent a member of The Property Ombudsman Scheme?

Delta_1984

Thanks @eddddy - will do that. 

eddddy

... but I would also be careful about 'burning bridges' with the estate agent. You might need to go back to them, if the buyer walks away,

Obviously, I don't know the background... but is your buyer really viable, or is it a 'romantic pipe-dream'?

• Were they seriously looking for a property, before seeing yours?
• Have they instructed a solicitor, and applied for a mortgage?
• Or have the buyers at least spoken to a mortgage broker and got a mortgage AIP?
• Have they already got a deposit in the bank? (Or are there complexities - like 'hopefully my parents will lend me some money?)
• Do they have a property to sell? If so, is it under offer?

• Are you confident enough to take your property off the market?

Maybe mention to the estate agent that you will, of course, get back to them if this sale doesn't proceed. 

Delta_1984

Really good advice, thanks again @eddddy

propertyrental

Before instructing an EA, I advertised myself - just with a For Sale sign for local people to see. I showed 5 people round (probably local busy-bodies, but worth a try!).

I gave all their names to the agent and it was agreed if any of them ended up buying there'd be no fee.

I was surprised how many local agents insisted on 'Sole Selling Rights' contracts - they all got crossed off my list.