Signed contract with agent with a capped comission, agent says pay full comission!

seth

RHemmings wrote: »

Surely they won't just forget about the commission.

How right you were!

Have sent a copy to my solicitor this is the OCR scan minus names / addresses etc
Re: Sale of <Address> ("the Property")

We have now been able to take our client's instructions on your letter dated 5th March 2008. We apologise for the short delay but we had been waiting to speak directly with <Salesman’s Name>. We note that you now accept the fact that you altered our client's Standard Terms and Conditions. Our client's understanding was that the document sent to you by email was a "read only" version of the document and therefore please clarify how you altered those Terms and Conditions?

Our client does not accept the version of events set out in your letter. We have spoken in detail with <Salesman’s Name>. and he has made it perfectly clear that at no time did he agree with you any arrangement for a 2 week appointment on a sole agency basis with a capped commission rate. Indeed, to suggest that our client would have agreed a capped commission at the rate claimed is nonsensical. We believe you are fully aware of this position. <Salesman’s Name>. has further confirmed that when he attended your property to sign the letter of appointment, at no stage did you draw his attention to the fact that you had altered our client's Standard Terms and Conditions.

Indeed, there is no reason why he would have expected the Terms and Conditions to have been altered. Had either of you drawn to <Salesman’s Name> attention the alterations you had made to Clause X, <Salesman’s Name>. would not have agreed to the terms set out therein. Having made the changes, the onus was upon you to draw those changes to our client's attention to them. It is clear from the evidence of <Salesman’s Name>. that our client had at no point knowingly agreed to the capped level of commission which you now seek to rely upon. We are satisfied that on an examination of the facts in this matter a Court will accept our client's position. We are further satisfied that in the event of any uncertainty over the terms of the contract, the Court will take the view that our client is entitled to a fair commission on the sale of the property. Clearly, a commission of Y% is fair. In the 'circumstances, we offer you one last opportunity to now settle the payment of our client's invoice within 7 days of the date of this letter. If you fail to take up this opportunity, we will advise our client to issue proceedings. Rest assured, as well as pursuing our clients losses in this claim, we will also be asking the Court to consider in great detail your conduct in this matter. We look forward to hearing from you as a matter or urgency.

Yours faithfully

Etc..

ginvzt

So, how did you alter a 'read only' document? If the EA sent you an email withthe contract and asked to aleter it, do you still have an original email and can prove that it was not 'read only'?

Anyway - the contract is signed. If they didn't agree to it, why did they take photos and advertised the house? Isn't there are low of some sorts that if they do this they accept the contract?

how was it wil Littlewoods when they requested £25 voucher back 2 months after they dispatched the goods? Iam sure people were arguing,taht since the goods were sent out, littlewoods accepted the voucher and that they couldn't revoke it 2 months downthe line. I am sure Littlewoods dropped the case soon afterwards.

Can't you try this - you sent them the signed contract, they read it, obviously, and agreed to advertise the hosue. so, they accepted what was written and it is their own fault.

seth

The file they sent was a word .doc file. I used Google apps to edit it.
It was not a PDF or other such file.

What does not seem to make sense with their version of events is that we both agree that they sent me printed copies of the standard contract to sign.

I seems to make no sense to send me a read only electronic copy of something I already had printed copies of. The only reason someone would send me a word document of something they had printed and left with me would be to alter the soft copy.

carolan78

If they are stating you should not have had this contract why did the sales person not qurestion it when you produced it? Why did they sign your copy and not one they had printed off and brought with them? More so why did they not check it for alterations prior to signing.

I think someone has messed up big time and now they are trying to lay blame at your door so their manager (who will be highly stressed in the present climate) doesn't fall on them like a tonne of bricks.

ginvzt

Well, I am not IT specialist, but *.doc files are not really read only. Unless you protect it with password or something...

Tell them that you understand that by advertising your house and taking photos of it the EA entered in agreement which was signed (by both of you?). Once signed, they cannot go back on it.

seth

Quick update:

1) I sent the original word document to my solicitor they were able to edit it.
2) My solicitor noted that in an email from the Estate Agent the estate agent themsleves had confirmed the revised rate was on their computer system. This is on an email BEFORE the sale.

The difference between the fixed rate and the variable commission is around £11k so I've offered to meet them in the middle to avoid litigation costs / distress.

I think that estate agents use litigation are part of they've normal course of business so their costs for litigations.

as the difference is £11k I thought litigation for me would cost £5k to £8k and around £2k for the SA.

So I've drafted a response and sent if off to my solicitor..

along these lines comment welcome!

Dear ....
I received your letter… blah….
Clearly there is a difference of opinion between your client and myself.
There are several facts that I am able to substantiate based on documents provided by your client, events that third parties such as my buyer will be able to substantiate.
After signing the contract to engage your client I had calls from both the XXXX and YYYY Office there was confusion about which office should deal with the sale and resulting commission. They buyer had seen the property in One branch but it was marketed by another. Your client's internal remuneration considerations are not something that I expected to have sight of when dealing with a professional firm.
In XXXXXX I was told by your client that my buyer had pulled out and that we would have to re-market at a lower price. At my own expense I met up with the buyer to discuss his concerns. I was able to reassure him subsequently and the sale was successfully completed. This is something that I would have expected client as professional negotiators to have done. I have records of this meeting and the buyer will confirm these events.
I notice that your client has not denied that the sales team left me with printed copies of your standard contract for me to sign in their presence. Something I declined as they rate and terms were not as discuss. Given that your client had left 2 printed copies of their standard terms with me, why would they send me a copy by email? In your letter you also asked how I edited the document. I used the Google Office which allows me to edit the document. I can also confirm that the document sent to me via email is indeed editable, something that my solicitor was able to confirm using Microsoft word.
Finally your client has confirmed to me in communication prior to the sale, that "Our computer records show that a joint fee of 1.4% plus vat was agreed when we started marketing the property" This proves that indeed your client was aware of the contents of the contract. I find it hard to reconcile your client's position that they were not aware of the revised contract they had signed when by their own written admission:
1) Your Client's own internal computer system, confirms that a rate not found in your clients standard contract was entered into their system.
2) I have written communication from your client confirming this, a copy of which my solicitor has seen.
I noticed that in previous correspondence with yourself and your client, several weeks have elapsed from the time I sent a response and a reply. I realise that it is not always possible to respond instantly but if possible I would like to agree a fixed time period for any negotiations and also how monies in any agreed final settlement should be paid. Please let me know if this is acceptable to your client. I would suggest a period of not more than 2-4 weeks for negotiation if we agreed to confirmed email communication, or 4-6 weeks by letter / fax.
I realise that selling a house is a complex process. Indeed this is made more difficulty when a many offices are involved: XXXX, YYYY and ZZZZ.
If your client is willing to discuss these concerns and consider an offer of an attempted negotiated settlement please let me know. Clearly if no agreement is possible within an agreed time frame then we will be forced to resort to legal process. I would like to point out that the document sent to me was editable, and that your clients computer system had the revised rates before the sale took place.

As the difference between the fixed commission and the percentage commission is around £11k would your client be prepared to consider a settlement somewhere between the 2 figures, say 50% of the difference? I feel this is a fair without prejudice offer, with no acceptance of liability. Indeed I only feel able to make this offer because despite the mix ups your client was professional in all other ways. Indeed I have some properties that I wish to sell in 2008 and if we are able to resolve this amicably I would seriously consider, engaging your client for this work.
I hope that we are able to bring this matter to close, in a timely manner and look forward to putting this matter behind us and hope I can continue to do business with your client in 2008.

RabbitMad

I don't think you should offer them anything, but that's your choice

irnbru_2

seth wrote: »

2) My solicitor noted that in an email from the Estate Agent the estate agent themsleves had confirmed the revised rate was on their computer system. This is on an email BEFORE the sale.

I don't understand you have a signed contract with T&Cs. See them in court.

notatroll

Seth, you talking about related ‘stress’ makes me want to cuddle you. I dislike solicitors but if they bully you out of £11k with no proof they deserve the money and not you. Courts aren’t made for them to make money, you know. Just to recoup: I understand you have no negative history, reasonably ‘good citizen’ and EAs do not have any proof that you have acted with any untoward intent, the evidence you have described here shows quite the contrary. In the end EA’s ‘losses’ would be deducted from the sales person’s bonuses and forgotten about. (If you managed to sleep with her/him and now feel sorry - go ahead and share) They would even accept your other properties to sell if that is what you want. Go speak to the EA firm’s principle if you do not want any more stress - tell that you would agree to leave it out of court and pay full £3.5k out of you pure goodwill - you can even offer him/her a ‘commiseration’ dinner if that makes you feel better. Otherwise file a ‘Seth against EAs’ harassment case

zzzLazyDaisy

I would send the sols a letter explaining once and for all that the price was £x amount, as set out in the agreed contract and signed by [name] on behalf of the company prior to marketing the property.

Then say that you are enclosing a cheque for the said amount, and as far as you are concerned, that is the end of the matter.

Tell them that no further correspondence will be entered into, and they must not write to you again unless it is to issue proceedings.

The reason I say send them the cheque is that you accept that you do owe them that sum of money, and if the matter should come to court, you will be whiter than white, having paid what you say was owed.

DO NOT make the mistake of marking the letter 'without prejudice' as this will prevent you from showing the letter to the judge if it does come to court - however this is not very likely as they will incur solicitors fees which - based on the information you have given us - they are very unlikely to get back.

However - please note if you offer more than the contractual amount, then you SHOULD mark the letter 'without prejudice save as to the question of costs' and tell them this letter is sent in accordance with section 36 (otherwise you are deemed to be admitting that you do infact owe the higher amount)

If it helps, I had a dispute with an EA over a bill (advertising was supposed to be included, they changed their terms halfway through marketing the house and tried to get me to cough up for the advertising after the change) I refused, paid what I owed, and after a long long silence, they wrote and said they would not be taking the matter any further (keep all your papers for 6 years tho, just in case)