Ready willing and able buyer clause - dispute with estate agent - who is right?

saajan_12

How long do you have left on your minimum term with the agent and what's the notice period?

This buyer is not currently ready or able to buy. The agents only argument could be that you have to keep the property on the market and in that time they would get to ready, willing and able. 

theartfullodger

If & when agent sues you judge will inform you who was correct 

eddddy

km1500 said:

I'm not sure how this clause would work in normal circumstances perhaps someone has experience 

for example you have a buyer for your property and you have made an offer on another property and everything is going along normally 

then your buyer seller pulls out or maybe you pull out because of a  bad survey 

does your agent say well we're still got to ready willing and able buyer for your property so even though you now have nowhere to go we are still going to expect you to sell it

do you have to then say OK will exchange but completion date is five years in the future so I can have time to find a new property?

The EA's fee is only payable, if you withdraw from your sale.

So if you lose the property you are buying, your position would often be... "I'm not withdrawing from my sale, but the sale will be delayed while I find another property to buy."

Your buyer might decide to wait, or they might decide to withdraw.

If your buyer withdraws, you don't have to pay a fee.


(But if you say something like "My purchase has fallen through, so I'm giving up on the idea of moving and I'm withdrawing from my sale" then you'd have to pay the EA's fee.)

hiohaa

saajan_12 said:

How long do you have left on your minimum term with the agent and what's the notice period?

This buyer is not currently ready or able to buy. The agents only argument could be that you have to keep the property on the market and in that time they would get to ready, willing and able. 

I'm well passed the minimum term of 16 weeks, Contract started in October last year. 

Yes it does seem pretty clear cut to me so i'm baffled as to why the agent is continuing to pursue me for his fee. I'm tired of repeating myself to him and have put in a complaint to PRS which they have accepted. The ball is really now in the agents court. 

I get the impression they don't actually understand the clause of their own contract. 

He has now tried numerous times further after complying with my instruction to take the property off the market - which he initially refused to do (!!) - to get me to cave in and pay the fee. 
First asking me what evidence I would need to see, even though I'd stated it repeatedly (evidence proving the buyer was prepared and able, which I know doesn't exist as my solicitor had received continuous and timely updates from the buyers solicitor up until I instructed to terminate, confirming that they could not exchange contracts as they were still waiting on their clients mortgage offer). 
Then saying I should pay the fee saying i'd be in breach of contract if not. 
Then saying he has an email from 'a solicitor' claiming to show the buyer was ready willing and able, but not sending the evidence to me or explaining what it is. 

Once this ordeal is offiically over, I will be naming and shaming. I'm about 95% confident in my position and will continue to hold firm. 

hiohaa

eddddy said:

km1500 said:

I'm not sure how this clause would work in normal circumstances perhaps someone has experience 

for example you have a buyer for your property and you have made an offer on another property and everything is going along normally 

then your buyer seller pulls out or maybe you pull out because of a  bad survey 

does your agent say well we're still got to ready willing and able buyer for your property so even though you now have nowhere to go we are still going to expect you to sell it

do you have to then say OK will exchange but completion date is five years in the future so I can have time to find a new property?

The EA's fee is only payable, if you withdraw from your sale.

So if you lose the property you are buying, your position would often be... "I'm not withdrawing from my sale, but the sale will be delayed while I find another property to buy."

Your buyer might decide to wait, or they might decide to withdraw.

If your buyer withdraws, you don't have to pay a fee.


(But if you say something like "My purchase has fallen through, so I'm giving up on the idea of moving and I'm withdrawing from my sale" then you'd have to pay the EA's fee.)

It surely depends on how "Ready willing and able" has been defined. In my case, it follows exactly as per the 1991 regulations provision to the 1979 Estate agents act - it's a copy and paste from that - and presumably this is what many other estate agents will follow. 
In my case it states that such a buyer is one who is Prepared and able to exchange contracts. 
At that point, it makes sense for the seller to pay a fee, if the seller pulls out. 
Assuming in your example the buyer had all the financing etc. lined up and was able to exchange contracts, and the seller pulls out, then sure, the seller has to pay the fee as the buyer was Ready willing and able. 

In my case, the mortgage offer in principle had expired about 3 months ago (I got the evidence today) and the buyers solicitors were still waiting for a mortgage offer in order to draft contracts and provide a completion date.