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

seth

Update, I offered a settlement somewhere between my position and their position but they are not budging...

So it looks like if I do not pay the full amount we will end up in court!
As I understand it Estate agents have no powers or special standing they are not regulated and my only agreement is the contract I have with them so it looks like my word against theirs. A pity I do not have the phone calls recorded! Just the paper contract signed and the emails.

WITHOUT PREJUDICE SAVE AS TO COSTS
Dear Sirs,
Re: Sale of **************** ("the Property")
Thank you for your letter dated **** April 2008.
We have discussed the letter with our client who does not accept that any of
the fomments raised in your letter are relevant to the issues in this matter
and/or alter your liability to our client. Our client is comfortable with its
position for the reasons we have outlined in our letter of the ** April 2008.
We note your proposals in respect of a time period for negotiations and your
subsequent offer of settlement. Our client is, of course, open to negotiation
discussions but would only be willing to enter into a settlement if that
settlement was on terms which reflected their position in this matter. Our
client is satisfied that you are fully aware that you have altered the terms of
the contract without our client's knowledge and that full consideration of all
the evidence in this matter will result in a finding along those lines. As such,
your offer to settle this matter, which appears to be an offer that you pay
X% of the difference between the capped commission fee (your case) and
the full invoice amount (our client's case), is rejected.
In the interest of trying to achieve a settement of this matter before
proceedings are issued, our client is prepared to make one final offer of
settlement. Our client would accept a payment of £<FUll amount> in full and final
settement of its invoice. Providing this payment is made within 7 days of the
date of this letter, our client will not pursue you for any interest on the
invoice. Further, it will not pursue you for the legal costs it has incurred to
date. We must express that this offer represents our client's best position.

We look forward to hearing from you with a response to this offer by 4pm on
Xth May 2008. If we have not heard from you by that date we have
instructions from our client to issue.
Yours faithfully

RabbitMad

looks like your going to court. Are you sure your house hold legal cover doesn't cover you in defending an action against you?

I think they are on dodgy ground arguing as you altered the contract and they signed it it is not valid and the old contract should stand.

I'm not a solicitor but I think you have a very strong case.
- Signed contract
- They sent you word version of contract, why unless it was to amend it to mutually acceptable terms
- Only one page contract, hard to hide alterations in
- evidence that they had amended commission amount on their systems.

It seems to me that you've negotiated a deal with somebody in the office who was unauthorised to conduct such a deal.

Good luck and keep us posted.

chappers

As I said previously what does your solicitor say about this, does he believe you have a case and would he be willing to act for you in this dispute.

Again keep all your correspondance to letter format sent by recorded delivery and preferably through your solicitor.

As far as I can see a contract is a contract, it doesn't matter who originated it.Both sides signed and agreed to the terms. Estate agents modify their own standard contracts all the time to suit particular agreements.

KEEP ALL CORRESPONDANCE VIA LETTER

seth

chappers wrote: »

As I said previously what does your solicitor say about this, does he believe you have a case and would he be willing to act for you in this dispute.

Again keep all your correspondance to letter format sent by recorded delivery and preferably through your solicitor.

As far as I can see a contract is a contract, it doesn't matter who originated it.Both sides signed and agreed to the terms. Estate agents modify their own standard contracts all the time to suit particular agreements.

KEEP ALL CORRESPONDANCE VIA LETTER

My solicitor changed during the purchase of the house. This was because the person dealing with it left the solicitors practice and also because my house purchase took a long time, my buyer was waiting for over 8 months.

I had a contract with my solicitor for 2 things 1) Sale of my house 2) Purchase of new house as the funds from 1 paid for 2) plus a top up.

Anyway my original solicitor handed the details of my sale and purchase over to someone taking on his caseload. The new solicitor worked on the exchange and the completion. All went well: I sold my house, purchase the new house. Then I got the bill from the Estate Agents based on their standard uncapped commission. Informed my new solicitor, who ask me to take up the matter with the EA. Explained and the new solictor offer the EA the capped amount. EA refuse to take the payment. EA wrote to me saying pay or we will hand this over to our solicitors. EA's solicitors wrote to me and he we are.

I attached a copy of the EA Solicitor's letter to my solicitor this was the response:

>They did not entertain the offer..
>Seth.

My solicitor replied:

I trust that you are not surprised. You should send the payment within the time stipulated; otherwise inform them that you do not intend to pay the full amount, make part payment (which they can refuse to accept) and you will defend the claim. If you lose, you will have to pay interest on the monies outstanding (which can potentially mount up by the time the case gets heard), Estate Agent legal fees, your own legal fees, etc.

Whilst you are probably fighting this on a point of principle, there will ultimately be a winner and a loser if it goes to Court because it is your word against theirs.

I hope this helps you reach a decision.

Yours sincerely,

seth

Spoke to my family and I have some questions I'll look into:

• Does my contract with my solicitor for selling the house include disputes with the EA? I assume it was a standard law society approved letter.
• Currently I've been drafting letters for my solicitor to check the working and I've been sending the letters not my solicitor, is this the right thing to do?
• Is the any prior case law relating to this type of dispute?
• Should I ask another solicitor about the chances of winning this if it goes to court?
• If I lost how much would the costs and interest be, given most of the delays have been with the EA taking 3+ weeks to reply via the solicitor. Also the standard EAs contract had base rate + 8% for delays in payment, I took this out of the version of the contract that the EA signed. How do the courts calculate interest.
• If I won would my time wasted be awarded to me if so how would this be calculated?
• How can I tell if my new solicitor (or the practice they work for) can deal with litigation Vs conveyancing work.
• The difference between what I want to pay and the EA demand is £12k when does the amount become significant enough to take to court?

seth

RabbitMad wrote: »

looks like your going to court. Are you sure your house hold legal cover doesn't cover you in defending an action against you?

That's the sum of it the solicitor for the house insurance did offer to look into the matter but said they would likely reject it as it is for defending not pursuing a claim. Typical I will look into the small print of the insurance. Might be worth sending the details to the house insurance solicitors even if they say its not covered?

seth

chappers wrote: »

As I said previously what does your solicitor say about this, does he believe you have a case and would he be willing to act for you in this dispute.

Again keep all your correspondance to letter format sent by recorded delivery and preferably through your solicitor.

As far as I can see a contract is a contract, it doesn't matter who originated it.Both sides signed and agreed to the terms. Estate agents modify their own standard contracts all the time to suit particular agreements.

KEEP ALL CORRESPONDANCE VIA LETTER

Initially my solicitor was quite sure that I had a firm agreement with the EA the signed contract. I think now my solicitor is being very careful to ensure I make any decisions and is not committal. Not sure if this because:

• disputes with EA are covered in my contract with my solicitors
• my solicitor does not want to spend their time on me, they have their money
• my solicitor and their practice lack the staff / experience to go up against the huge mega law firm that the EA employ

A mixture of any of the above. My dad is going to chat to some friend who are solicitors to see what they think, and I'll send details of this to the solicitors who provide legal cover for my house insurance. (No idea how long this will take but I should at least find out if they will represent me or if the insurance covers these costs)

I've kept all correspondence by letters that I've signed and scanned and emailed as PDFs and then called the other party to confirm receipt, by email. I take your point will ensure my solicitor write and send the letters in future.

I've not had to deal with legal stuff like this before so I'm learning as I go. Thanks for the advice.

reehsetin

seth wrote: »

• Is the any prior case law relating to this type of dispute?

can't really say much on the rest but i'd imagine you'd need to look at case law surrounding incorporation of terms, as it depends on whether the courts would think this term was properly incorporated into the contract

seth

reehsetin wrote: »

can't really say much on the rest but i'd imagine you'd need to look at case law surrounding incorporation of terms, as it depends on whether the courts would think this term was properly incorporated into the contract

Gosh, had no idea that there was a "properly incorporated into contract" process. I just edited the word document to reflect our verbal discussions. So it is unlikely I did anything properly. But I can show you the sections of the contract I took out and the bits I added?

seth

seth wrote: »

That's the sum of it the solicitor for the house insurance did offer to look into the matter but said they would likely reject it as it is for defending not pursuing a claim. Typical I will look into the small print of the insurance. Might be worth sending the details to the house insurance solicitors even if they say its not covered?

Just read the key fact summary for my home insurance under legal expenses is says under options available: Legal expenses for the pursuit of a claim, but then in the "significant exclusions or limitations" section opposite this is says "defense of a claim unless it involves the sale of good over £125" which might offer some hope. I'll post the full text later this morning.