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

neverdespairgirl

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!

Yes, it struck me as an interesting interpretation of the burden of proof as well!

TaxGeek

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.

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.

It struck me as sarcasm.

I think the fact the EA offered to settle for 50% is clear indication that they know they wouldn't get anything if they pursued it through the courts.

Commonsensesearcher

Been sitting in the small claims court for this very issue - Estate Agent won but they HAD introduced the buyer, they were just trying to sell to a friend for lower at the same time. BUT in this case I'd say the crucial thing is whether there was a For Sale sign up - if there wasn't and the introduction was essentially through someone that had no connection with the Agent and who would reasonably know directly from the seller whether the place was for sale or not then I reckon from what the judge in our case said then the Estate Agent haven't got a case. It'll be a small claims court matter anyway (under £5k - generally) but best to write to them stating clearly and politely that they have no valid claim as they did not introduce the buyer, either directly or indirectly.

Tozer

zebulon wrote: »

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?

No, the legal principle is that the Claimant needs to prove the claim on the balance of probabilities.

Given that the terms and the facts of the matter are not clearly applicable to their claim for a fee, my view as a contracts lawyer, is that the OP is not liable to pay. Even if there is a spurious argument that the terms do apply, I would suggest that they are not sufficiently clear and that the UTCCR and principle of contra proferentum would apply to defeat the action.

Hope that helps.

Richard_Webster

Originally Posted by zebulon
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?
No, the legal principle is that the Claimant needs to prove the claim on the balance of probabilities.

Given that the terms and the facts of the matter are not clearly applicable to their claim for a fee, my view as a contracts lawyer, is that the OP is not liable to pay. Even if there is a spurious argument that the terms do apply, I would suggest that they are not sufficiently clear and that the UTCCR and principle of contra proferentum would apply to defeat the action.

Hope that helps.

I agree. I really can't see how they can make out a claim.

neverdespairgirl

Tozer wrote: »

Given that the terms and the facts of the matter are not clearly applicable to their claim for a fee, my view as a contracts lawyer, is that the OP is not liable to pay. Even if there is a spurious argument that the terms do apply, I would suggest that they are not sufficiently clear and that the UTCCR and principle of contra proferentum would apply to defeat the action.

I agree. I'm looking forward to going to court tomorrow, and saying, "I represent the Claimant, my Lord, and I don't have to prove a thing!"

RabbitMad

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 don't know why you feel this is a new concept. HMRC have been using this approach for years.:rotfl:

However I concur that the OP should tell the EA to FO

jimc_2

neverdespairgirl wrote: »

I'm looking forward to going to court tomorrow,

Just how many lawyers are there on this thread?

I just counted three!

chickmug

jimc wrote: »

Just how many lawyers are there on this thread?

I just counted three!

One of the delights of this type of forum as you never know what most folks do for their day job. I read with great interest help being offered and because I am the know (my work) about some of the issues I often read good avice which is accurate but I often read 'well meaning' advice which is wrong.

RabbitMad

I'm only of the arm chair variety

Although I'd be happy to turn my hand to soliciting if needs be.