Estate agent claiming fees on private sale.....

Tozer

jimc wrote: »

Phew! Estate Agents really are going for broke on this! They are trying to redefine ALL internet searches as 'agent duties' to try to claim their (unearned) commissions.

Under their definition Google is an estate agent now!

Fortunately the judiciary are not stupid and have just ruled against another claim for commission in a disputed area because of the desire to protect the seller/buyer from the possibility of a double commission. No doubt this clause (which really does seem 'home-made' and not legally crafted) would be laughed out of court if the agent ever tried to enforce it.

Interesting case although I think the distinction is that it was trying to protect against double commission rather than any commission.

On what basis do the EA actually say that they made the introduction?

The Unfair Terms in Consumer Contracts Regulations will apply to the terms together with the legal principle of contra proferentum. This means that any ambiguity will be construed against the person trying to rely upon it (in this case the estate agent).

jimc_2

liberty_lily wrote: »

and that as we cannot prove the buyer DIDN'T see an advert by the H****** and they cannot prove that they DID, my F-in-L should meet them half way and pay half of the 1.5% + vat.

Hi Tozer. The whole problem in the OP case is that the Agent is claiming that the buyer MIGHT just possibly have seen something or had a subliminal message that originated from them. Perhaps it was a dream induced by driving through their town that did it! Thought transference perhaps?

They have absolutely no proof (or any rational reason to believe) that their 'efforts' had anything to do with the sale.

The Estate Agent's normal rationale in this situation is that the buyer "might have been attracted to the property by their 'for sale' sign" but talked to the seller directly which at least has a semblance of truth but totally does NOT apply in this case (nor in the case of anyone finding the property on a Private Sale Website.)

Unfortunately this "Yeah but - No but - Yeah but - the buyer must have seen something we did" is a very common ploy by Agents ever more desperate for fees. It is the general public paying for their duplicity and these actions need to be stamped out.

Tozer

On that basis they need to prove that they introduced. They need to put up or shut up in my view.

I wouldn't even bother going to their complaints department. Just a statement to them saying that no fee is due. Could the purchaser confirm this as well?

nutmegman

liberty_lily wrote: »

Thanks for your reassurance everyone!

Chickmug - the contract is definitely sole agency, not sole selling rights - thankfully!!!

Jorgan - the wording on the contract is as follows -

'you will be liable to pay fees to us in addition to any other costs or charges agreed if at any time unconditional contracts for the sale of your property are exchanged -

with a buyer introduced directly or indirectly during the period of sole agency or with whom we had negotiations about your property during that period, or

with a buyer introduced by another agent during that period.

In this agreement references to 'another agent' includes any person operating an internet site or using other electronic media to advertise properties for sale whether or not they do so with the authority of the owner of the property. 'Introduced' includes any person introduced by us to your property through browsing on an internet site or viewing other electronic media used to advertise your property for sale.'

Hope this helps!

Thanx again!!!

I am afraid you have little argument here, you have signed an agreement with an EA. I would rule that you were liable for all the fees not the 50%.

I know this stinks but they have invested time & resources in marketing your property, that property has now sold. The only way you can win your case is to prove that non of the EA's work contributed to your sale i would doubt this possible.

However, They (EA) have weakend thier hand by seeking 50%, so keep pushing this, in law a quantum merrit may be payable, a judge would need to rule on that.

HTH

PasturesNew

nutmegman wrote: »

I am afraid you have little argument here, you have signed an agreement with an EA. I would rule that you were liable for all the fees not the 50%.

I know this stinks but they have invested time & resources in marketing your property, that property has now sold. The only way you can win your case is to prove that non of the EA's work contributed to your sale i would doubt this possible.

However, They (EA) have weakend thier hand by seeking 50%, so keep pushing this, in law a quantum merrit may be payable, a judge would need to rule on that.

HTH

I (no legal understandings) would disagree. Since seeing the OP's posting with the clause, the sole agency agreement seems particularly targetted at other agents being an introducer. But this was a private arrangement, done without the intervention of any agent or any medium that conveyed the property details as the introducing source was word of mouth through a random conversation with somebody not in the property agent profession at all.

So I'd still say "Nothing to pay" even though I've seen the exact wording on the contract.

It's just that "directly or indirectly" that's making me waver a bit though.

Tricky b4stards arent't they...

Richard_Webster

I am afraid you have little argument here, you have signed an agreement with an EA. I would rule that you were liable for all the fees not the 50%.

I know this stinks but they have invested time & resources in marketing your property, that property has now sold. The only way you can win your case is to prove that non of the EA's work contributed to your sale i would doubt this possible.

However, They (EA) have weakend thier hand by seeking 50%, so keep pushing this, in law a quantum merrit may be payable, a judge would need to rule on that.

HTH

A new concept in English Law - if the plaintiff in an action asserts something he must be right until the defendant proves otherwise!

I can just imagine the County Court or District Judge sitting there asking the estate agent's lawyer what proof he had that his clients directly or indirectly introduced this particular buyer. "er...well, they did a lot of work and arranged lots of viewings...."
"Yes, but what did they do with reference to this particular person...?" Seller's solicitor submits that there is no case to answer, and Judge dismisses the case and awards costs to the seller against the estate agent.

Although there is the extra bit about internet selling, this was not a sole selling rights agreement and the agent has to prove that he directly or indirectly introduced the buyer, which he plainly didn't.

zebulon

Richard_Webster wrote: »

A new concept in English Law - if the plaintiff in an action asserts something he must be right until the defendant proves otherwise!

I can just imagine the County Court or District Judge sitting there asking the estate agent's lawyer what proof he had that his clients directly or indirectly introduced this particular buyer. "er...well, they did a lot of work and arranged lots of viewings...."
"Yes, but what did they do with reference to this particular person...?" Seller's solicitor submits that there is no case to answer, and Judge dismisses the case and awards costs to the seller against the estate agent.

so if it's the agency that goes to court - they would be the plaintiff and OP the defendant, so OP would have to 'prove otherwise'.
Is that correct?

PasturesNew

Note to OP: Whatever Richard Webster says, in my opinion, is the posting of most informed value here.

Jorgan_2

nutmegman wrote: »

I am afraid you have little argument here, you have signed an agreement with an EA. I would rule that you were liable for all the fees not the 50%.

I know this stinks but they have invested time & resources in marketing your property, that property has now sold. The only way you can win your case is to prove that non of the EA's work contributed to your sale i would doubt this possible.

However, They (EA) have weakend thier hand by seeking 50%, so keep pushing this, in law a quantum merrit may be payable, a judge would need to rule on that.

HTH

The EA has invested time & money in marketing the property, but they work on a no sale - no fee basis, from what has been posted, the EA did not contribute towards the sale, so no fee is payable.

If the EA wanted to ensure a fee, they should have used a sole selling rights contract.

neverdespairgirl

nutmegman wrote: »

The only way you can win your case is to prove that non of the EA's work contributed to your sale i would doubt this possible.
/quote]

I think it's the other way round. If the agent wants to sue for his fees, he would have the burden of proof, as the claimant in proceedings.