Booby trap clause

eddddy

RHemmings said:

 Nor do I know if it is too late already. But, unless there are better ideas (quite likely), I would write to both EAs saying that they are attempting to charge dual fees against the code of practice of The Property Ombudsman Scheme of which they are members, giving each other the other EA's identity and contact details, and saying that it is up to them to sort it out between themselves. And say that you insist that they immediately stop any attempt to charge you, or collect, dual fees. And that you will immediately go through their formal complaints procedures as on their website if there is any further action from any party at all attempting to collect dual fees from you.

I suspect that won't solve the situation. The situation is quite likely to be as follows:

• The OP sold their house in June 2021 to a buyer introduced by EA1 - but paid EA2 a commission fee. (EA2 probably broke the Ombudsman's rules, and probably should not have been paid a fee)

• EA1 is now correctly and legitimately claiming their fee from the OP for introducing the buyer

So EA1 is probably not doing anything wrong - but has no legal basis for claiming any money from EA2.

So the OP needs to ask the Ombudsman to step in to order EA2 refund the OP. And the OP can then pay EA1.



But that's based on a number of assumptions, including:

• The buyer was "effectively introduced" by EA1
• The buyer's offer was accepted within 6 months of the OP terminating the contract with EA1
• The OP was honest with EA2, and told EA2 about their previous contract with EA1

And just to clarify - the Property Ombudsman has no specific rule that Dual Fees must not be charged. The rules are more that an EA must explain the risk of Dual Fees, and take steps to avoid a seller inadvertently becoming liable for Dual Fees.

RHemmings

eddddy said:

RHemmings said:

 Nor do I know if it is too late already. But, unless there are better ideas (quite likely), I would write to both EAs saying that they are attempting to charge dual fees against the code of practice of The Property Ombudsman Scheme of which they are members, giving each other the other EA's identity and contact details, and saying that it is up to them to sort it out between themselves. And say that you insist that they immediately stop any attempt to charge you, or collect, dual fees. And that you will immediately go through their formal complaints procedures as on their website if there is any further action from any party at all attempting to collect dual fees from you.

I suspect that won't solve the situation. The situation is quite likely to be as follows:

• The OP sold their house in June 2021 to a buyer introduced by EA1 - but paid EA2 a commission fee. (EA2 probably broke the Ombudsman's rules, and probably should not have been paid a fee)

• EA1 is now correctly and legitimately claiming their fee from the OP for introducing the buyer

So EA1 is probably not doing anything wrong - but has no legal basis for claiming any money from EA2.

So the OP needs to ask the Ombudsman to step in to order EA2 refund the OP. And the OP can then pay EA1.



But that's based on a number of assumptions, including:

• The buyer was "effectively introduced" by EA1
• The buyer's offer was accepted within 6 months of the OP terminating the contract with EA1
• The OP was honest with EA2, and told EA2 about their previous contract with EA1

And just to clarify - the Property Ombudsman has no specific rule that Dual Fees must not be charged. The rules are more that an EA must explain the risk of Dual Fees, and take steps to avoid a seller inadvertently becoming liable for Dual Fees.

You're right that the code of practice does say that: https://www.tpos.co.uk/images/codes-of-practice/TPOE27-8_Code_of_Practice_for_Residential_Estate_Agents_A4_FINAL.pdf

However, in case studies it seems that in practice, TPOS will effectively enforce no dual fees. 

https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/dual-fee-deception-or-dilemma

https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/dual-fee-dispute

https://thenegotiator.co.uk/columns/redress/the-property-ombudsman-dual-agency-fees/

https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/a-clamber-for-commission

https://www.propertywire.com/news/uk/property-ombudsman-issues-guidance-over-dual-estate-agents-fees/


‘If a dual fee complaint is referred to TPO, we will be looking to address any consumer detriment. Our stance is that no consumer should unknowingly be placed in a position of paying more than one commission fee,’ said Katrine Sporle, Property Ombudsman.

Yes, I note the word 'unknowingly'.

I can't find any cases where TPOS supported the charging of dual fees. Hence, I feel that if the OP can get to the point of having gone through the complaints process of both EAs, and then proceeds to the ombudsman, then there is a very good chance of the problem being resolved. However, this relies on the situation not being too late as, as mentioned above, the Property Ombudsman may be reluctant to get involved if the dispute has reached the courts. 

E.g.

https://www.tpos.co.uk/outstanding-fees-and-court


Can the Ombudsman still review the complaint if it has been to court?In accordance with the Ombudsman’s Terms of Reference, we are not permitted to consider aspects of a complaint that a court has already ruled on.In view of the above, we would need to be provided with a copy of the judgement so that we can determine whether we are able to consider the complaint/s. In making this decision we will also take into consideration what was submitted to the court as evidence.

eddddy

Yes - I entirely agree. This is a problem for the Ombudsman to deal with.

I was challenging 2 suggestions...

• That the 2 EAs would sort out the problem between themselves - I think that's likely to be a "no hoper"

• There is blanket ban on Dual Fees by the Ombudsman

If Dual Fees are being demanded, it's likely to be because of 1, 2 or 3 of the following reasons:

1. EA1 has broken the Ombudsman's Rules
2. EA2 has broken the Ombudsman's Rules
3. The OP has done something that makes the OP liable for Dual Fees

The OP hasn't provided enough info to indicate which of 1, 2 and 3 apply.

But as I say, my guess is that the OP has paid EA2 - after EA2 broke the Ombudsman's rules. So the Ombudsman will tell EA2 to refund the fee to the OP. But as I say - that's a bit of a guess.

Jonboy_1984

Pipval said:

hopefully it won’t go to court.. we are now dealing with a second debt collection agency that have took up the reins.. not sure why the first agency passed it on they did seem fairly gung-ho last year … 

Prior to court orders being obtained, collection agencies make a lot of noise to intimidate people into paying, but if you prove there is a reasonable doubt they tend to fire it straight back to their client (unless they also have solicitors in house that can mediate/litigate the issue and the client is prepared to pay for their services). 

The client then often simply appoints a second agent who know nothing about the first agents involvement….

eddddy

Jonboy_1984 said:

Pipval said:

hopefully it won’t go to court.. we are now dealing with a second debt collection agency that have took up the reins.. not sure why the first agency passed it on they did seem fairly gung-ho last year … 

Prior to court orders being obtained, collection agencies make a lot of noise to intimidate people into paying, but if you prove there is a reasonable doubt they tend to fire it straight back to their client (unless they also have solicitors in house that can mediate/litigate the issue and the client is prepared to pay for their services). 

The client then often simply appoints a second agent who know nothing about the first agents involvement….

The problem in this case is that it's likely that the Estate Agent has a valid claim - and so the Estate Agent is likely to win, if it goes to court.


The OP's problem is that they have already paid "the other Estate Agent" - so they need to complain to the Ombudsman to get their money back from "the other Estate Agent".



(But the OP hasn't provided enough info to know that for sure.)

RHemmings

eddddy said:

Yes - I entirely agree. This is a problem for the Ombudsman to deal with.

I was challenging 2 suggestions...

• That the 2 EAs would sort out the problem between themselves - I think that's likely to be a "no hoper"

• There is blanket ban on Dual Fees by the Ombudsman

If Dual Fees are being demanded, it's likely to be because of 1, 2 or 3 of the following reasons:

1. EA1 has broken the Ombudsman's Rules
2. EA2 has broken the Ombudsman's Rules
3. The OP has done something that makes the OP liable for Dual Fees

The OP hasn't provided enough info to indicate which of 1, 2 and 3 apply.

But as I say, my guess is that the OP has paid EA2 - after EA2 broke the Ombudsman's rules. So the Ombudsman will tell EA2 to refund the fee to the OP. But as I say - that's a bit of a guess.

For 'sorting it out among themselves' - I wasn't expecting this to happen. But, the OP (if it's still possible) needs to go through a complaints procedure with the EAs before approaching the ombudsman. I have no expectation that it would get sorted out in any way by the agents, but the OP has to ask the EAs to solve the problem before they can approach the ombudsman. 

Yes, you're right that technically the code of conduct of TPOS does not specifically ban dual fee schemes. But, from what I've been able to ascertain from the very many cases TPOS has handled for dual fee schemes is that TPOS acts as if it's proscribed. I couldn't find a single case where a dual fee was allowed - and I did look. I think that when TPOS says 'unknowingly' above, they are interpreting that pretty liberally in the favour of the customer. Without any example cases, it's hard to know what circumstances it would take before TPOS found in favour of EAs for dual fees. 

nicmyles

Isn't it relevant that apparently EA1 cannot provide any record of what names were given to the OP at end of contract? If they can't do that, a) how do they know the buyer was introduced by them and b) how would they evidence it to anyone's satisfaction?

eddddy

nicmyles said:

Isn't it relevant that apparently EA1 cannot provide any record of what names were given to the OP at end of contract? If they can't do that, a) how do they know the buyer was introduced by them and b) how would they evidence it to anyone's satisfaction?

The good thing about complaining to the Ombudsman is that the Ombudsman would investigate all that stuff.

The Ombudsman would demand all the relevant details from both estate agents files (and from the OP), and go through them to reach their decision about who should get a fee.

So the arguments you mention would be between EA1 and the Ombudsman (and between EA2 and the Ombudsman).  The OP probably won't need to get involved  - unless maybe if the Ombudsman decides that both fees are payable by the OP.


Conversely, courts and judges don't investigate. It would be up to the OP to investigate, and build a case, and present it to the court.

Pipval

Hello all , thank you all for your input. Another question… does a memorandum of sale exclude any more offer being made on the property? 

BarelySentientAI

Pipval said:

does a memorandum of sale exclude any more offer being made on the property? 

No.

Nothing excludes someone making an offer.  Exchange of contracts practically (but not legally) prevents someone accepting an offer.