Booby trap clause

Pipval

Thank you… does a M.O.S justify an estate agent asking for a fee because it fell within a 6 month period that a client they introduced but did not buy the property through that agency?

propertyrental

Probably yes.

Clearly the EA1 introduced a buyer and issued a MOS. So yes - they did their job and should be paid.

Begs the question why did that sale not Complete and why did the seller appoint a new agent?

BarelySentientAI

Pipval said:

Thank you… does a M.O.S justify an estate agent asking for a fee because it fell within a 6 month period that a client they introduced but did not buy the property through that agency?

Did that client go on to purchase the property through the second agency?

Pipval

Yes we did

sheramber

Pipval said:

Yes we did

your first post is about selling your house.

Now you are saying you bought  through the second agent.

???

eddddy

Pipval said:

Thank you… does a M.O.S justify an estate agent asking for a fee because it fell within a 6 month period that a client they introduced but did not buy the property through that agency?

It's impossible to answer that question without more information.

It sounds like you're looking at one paragraph in the Estate Agent's contract and/or one paragraph in the Property Ombudsman's Code of practice.


You can't safely conclude anything by reading one paragraph in isolation. You need to look at the contract and/or Code of Practice as a whole, and compare that to what actually happened overall.

Perhaps this is the Paragraph of the Ombudsman's Code of Practice that you've read:

Fee Entitlement and Client Liability

5t At the time of receiving instructions from a seller you must:

• point out and explain clearly in your written Terms of Business that you may be entitled to a commission fee if that seller terminates your instruction and a memorandum of sale is issued by another agent to a buyer that you have introduced (see definition of effective introduction (*) and supplementary TPO ‘Dual Fee’ guidance) within 6 months of the date your instruction ended and where a subsequent exchange of contracts takes place.

Link:https://www.tpos.co.uk/images/codes-of-practice/TPOE27-8_Code_of_Practice_for_Residential_Estate_Agents_A4_FINAL.pdf

Pipval

Hi , I have read some of the code as you’ve pointed out , quite difficult to understand what is what.. the contract with AE1 ended after the 12 week period.. we were not given a list of names at the end of the contract who had viewed the property.. AE2 introduced the client who ultimately bought our property.. we now presume that AE2 had an obligation under PM SCHEME to ask the potential viewer/ buyer had they viewed the property with another EA? And if yes then we would have been informed of a potential breach of contract eith AE1 …

eddddy

Pipval said:

Hi , I have read some of the code as you’ve pointed out , quite difficult to understand what is what.. the contract with AE1 ended after the 12 week period.. we were not given a list of names at the end of the contract who had viewed the property.. AE2 introduced the client who ultimately bought our property.. we now presume that AE2 had an obligation under PM SCHEME to ask the potential viewer/ buyer had they viewed the property with another EA? And if yes then we would have been informed of a potential breach of contract eith AE1 …

That's probably about 10% of the information that's needed to give an opinion.


But as I've said previously, my best guess is that...

• You owe EA1 their fee. If EA1 takes you to court, you will probably lose

• If you complain to the Ombudsman, the Ombudsman is likely to tell EA2 to refund your fee (but that is not definite)

Pipval said:

And if yes then we would have been informed of a potential breach of contract eith AE1 …

FWIW, you're using the wrong words. Neither EA1 or EA2 has breached a contract.

But EA1 and/or EA2 have probably breached the The Property Ombudsman's Code Of Practice.

(But it's quite likely that you have breached your contract with EA1, because you haven't paid them their fee.)

Pipval

hi, if EA1 at the end of the contract has not provided a list of names dates and times of all viewers of the property then they have breached the property ombudsman code of practise. It would seem unreasonable to pursue a fee if we where not provided with this list. 

eddddy

Pipval said:

hi, if EA1 at the end of the contract has not provided a list of names dates and times of all viewers of the property then they have breached the property ombudsman code of practise. It would seem unreasonable to pursue a fee if we where not provided with this list. 

This is a complex topic.

If you were taken to court by EA1, the court would look at...

• EA1's contract

• The law

A court (probably) wouldn't look at the Property Ombudsman's code of practice - because it isn't part of the contract, and it isn't part of the law.

So it's likely that you would lose in court.



If you complained to the Property Ombudsman, the Property Ombudsman would look at...

• EA1's (and EA2's) contract

• The law

• The Property Ombudsman's code of practice

If both EA1 and EA2 have broken the code of practice, the Ombudsman seems to work like this:

• If both EAs are equally guilty - you pay each EA 50% of their fee
• If EA1 is less guilty - you might have to pay EA1 75% of their fee, and EA2 25% of their fee
• If EA1 has done nothing wrong, but EA2 has - you might have to pay EA1 100% of their fee and nothing to EA2

But just for completeness - it's also possible that neither EA1 or EA2 have done anything wrong, and they are both due 100% of their fee. (e.g. If EA2 explained to you at the outset that you might have to pay 2 fees, because of a Sole Selling Rights agreement.)