Dispute with estate agent - Ready Willing and able

[gclifford]

hi all. I entered into a sales contract with an Estate agent (EA). In their No sale no fee guarantee the following clause applies:

A buyer is ready, willing and able if they are prepared and are able to exchange unconditional contracts for the purchase of your property. If such a buyer is introduced by the Agent, in accordance with your instructions, our fee will become due even if unconditional contracts for the sale are not exchanged.

the EA introduced me to a buyer with an offer which i accepted, back in January. The EA tells me that at the time they had a mortgage In Principle.
The Buyer only paid their solicitors to start conveyancing (Searches etc.) in mid April.
As of now, the buyers solicitors have said they are still waiting for a mortgage offer from the buyer, and so we cannot set a completion date.

Therefore, I believe, the buyer has at no point been Prepared and able to exchange unconditional contracts, at any point till now. Therefore, they are not a Ready willing and able buyer, and therefore, I should be able to terminate my contract with the EA without having to pay any fee.

The EA keeps insisting that because the buyer is apparently still 'eager', that they will invoice me if i pull out the sale, and have threatened to take me to court if I don't pay.

This is a horrible and stressful situation to be in, with an appalling EA.
Surely I am correct, but what do you guys think? I'm happy to pay the fee if the EA can evidence that the buyer is ready to exchange contracts, but clearly without an actual mortgage offer, they can't?!

[atticus]

Eager is not the same as ready willing and able. If the buyers solicitor say they are not yet in a position to proceed, that shows that the buyer is none of those 3 things.

This estate agent is trying it on.

[gclifford]

Eager is not the same as ready willing and able. If the buyers solicitor say they are not yet in a position to proceed, that shows that the buyer is none of those 3 things.

This estate agent is trying it on.

thanks. This is also the message I got from the leicester law clinic and my conveyancing lawyer said the same thing. I think the EA is banking on the fact that when the offer was made they had a mortgage offer in principle. At that point the buyers solicitor hadn't even started the conveyancing process so wasn't ready or able to exchange contracts, obviously.

In addition, a mortgage offer in principle is not the same as an actual mortgage offer, so it's really bizarre to me that the EA insists that they introduced a 'ready willing and able' buyer - in their mind, i think they are interpreting 'ready willing and able' in a different way to what it actually says in their own contract.
If the buyer is not at a point where they can exchange contracts, then they are not ready willing and able as per the definition.

Oh well. I told the EA today to take it off the market. They insist their fee will be due.
I have instructed them to carry out my instructions and that I will happily pay their fee if they can show me that the buyer has at any point been prepared and able to exchange unconditional contracts. They can probably show preparedness but certainly not ableness, i don't think?!

[atticus]

Well, as Meatloaf didn't say, 3 out of 3 ain't bad. I doubt you will need to shop around for further opinions.

[gclifford]

The agent is still persisting to try and get his fee, sending the invoice.
I firstly said as per the terms of the contract the fee is not due and therefore there was no reason for me to pay it.

He initially tried to get me to state what evidence i'd want to pay his fee, effectively trying to implicate me.
I refused and have said I have nothing more to say on the matter. I have a clear trail of evidence from my solicitors documenting the buyers status from their solicitors right up to the point where I withdrew and instructed to take the property off the market.

The buyers solicitors said every step of the way that they couldn't give us a completion date or exchange contracts because they were still waiting to receive the mortgage offer from the buyer, which was not forthcoming after 6 weeks of waiting.

I'm still confident in my position, however, I came across this thread on the forum:
https://legalbeagles.info/forums/for...lling-and-able

The advise here was slightly different, however the clause cited by the OP here looks to be a bit more restrictive than mine, but i'm curious to know what distinguishes this case from mine as they look very similar.

I think the term 'prepared and able to exchange contracts' is pretty clear? If the buyers solicitor cannot give us a completion date, because they've said they are still waiting for their clients mortgage offer, and therefore we cannot exchange contracts - that surely means the Buyer is not prepared/able to exchange contracts?!

Is this fairly clear cut, from a legal perspective?

[atticus]

A couple of things you may wish to read:

https://www.tpos.co.uk/news-media-an...lling-and-able

https://lawi.org.uk/ready-able-and-willing/