Sole Selling Rights

[lizzieevans]

Hello all

My deceased parent's property has been for sale since January 2010 and we have finally had an offer for it but not via the estate agent. It is friend of a friend who got our contact details from our friend.

In our opinion the agent has been useless and we have told them this a few times although we have recently had a couple of viewings which is more than we have had in earlier years. \They even recommended we use one of these online auction sites who have hardly any properties for sale in our area but would charge us the earth if we sold within six months of the end of the auction.

Anyway back to the estate agent. I do not have a copy of a signed contract but I have a letter with terms and conditions listed. This letter states that they have sole selling rights basis. and then it continues to say that they will charge us a certain amount if we withdraw the property - no notice period....

the next para is a bit vague.

RE; their sole selling rights terms they are required by law to advice us that we are liable to pay renumeration (no mention of what this renumeration is) to them as well as other costs or charges agreed if :
a) any time uncondtional contracts are exchanged with a purchaser introduced by them during their period of sole selling rights NOT
b) with whom they had negotiations about the property during that period NOT
c) with a purhaser introduced by another agent or any other person including ourselves during the period.

My question is - do you think I have to pay them the whole commission - my OH has been surfing and has found something called the Property Misdescriptions Act 1991 which states that property marketing should be reviewed every 6 months - which hasn't been done.
Any ideas
Thanks

[FlamingParrot]

Re: Sole Selling Rights

Hello all

Hi and welcome!

My deceased parent's property has been for sale since January 2010 and we have finally had an offer for it but not via the estate agent. It is friend of a friend who got our contact details from our friend.

In our opinion the agent has been useless and we have told them this a few times although we have recently had a couple of viewings which is more than we have had in earlier years. \They even recommended we use one of these online auction sites who have hardly any properties for sale in our area but would charge us the earth if we sold within six months of the end of the auction.

Anyway back to the estate agent. I do not have a copy of a signed contract but I have a letter with terms and conditions listed. This letter states that they have sole selling rights basis. and then it continues to say that they will charge us a certain amount if we withdraw the property - no notice period....

the next para is a bit vague.

RE; their sole selling rights terms they are required by law to advice us that we are liable to pay renumeration (no mention of what this renumeration is) to them as well as other costs or charges agreed if :
a) any time uncondtional contracts are exchanged with a purchaser introduced by them during their period of sole selling rights NOT
b) with whom they had negotiations about the property during that period NOT
c) with a purhaser introduced by another agent or any other person including ourselves during the period.

There has to be a written contract with your estate agent, and it will be for a set period of time, such as 12 or 16 weeks, not indefinitely!
https://www.gov.uk/buy-sell-your-home/estate-agents

If you use an estate agent to sell your home, you must sign a legally binding contract with them.

You may want to look at this: http://www.oft.gov.uk/news-and-updat...8#.UgutLFNXZgc

The OFT is drawing consumers' attention to a recent Court of Appeal ruling that affects 'sole agency' contracts with estate agents.

The recent court case ruled that estate agents cannot claim their commission under a 'sole agency' agreement unless they can show that they have introduced the buyer to the purchase, and not just to the property.

In the case of Foxtons v Bicknell in April this year, the Court of Appeal decided that Foxtons was not entitled to a £20,000 fee after a buyer it had originally introduced to a property but who decided not to purchase the property at the time, then went on to buy the property at a later date through another agent.

[lizzieevans]

Re: Sole Selling Rights

That's great; thank you very much, sorry for the delay in getting back to you things have been a bit manic.

I do not have a copy of what I signed - I think it was just a copy of the terms and conditions with no mention of the timescales....I will go back through it all again. I'll see if I can find the letter that went through it. I am pretty sure no dates were mentioned and it has definitely not been re-negotiated.

The agents know that an offer has been made but nothing else - I do not want to withdraw the property from them until I now that it is going through .....don't want to tempt fate.

If I can scan it as text I will put it up for your perusal - I can't just put it up by blanking out the name cause the the way it is set out is very distinct.
Liz

[lizzieevans]

Re: Sole Selling Rights

If anyone could help with this it would be much appreciated. Have made one offer to the agent which was refused and have been advised to make an increased offer - without prejudice as the agent did not fulfill all the obligations on the T & C letter before paying up the whole amount. This contract was never reviewed by the agent despite us complaining that they were not meeting their obliagtions.
If anyone could point me towards the info that Flaming Parrot mentioned about the fixed time scale for contracts it would be appreciated.
Thanks
Lizzie

[PlanB]

Re: Sole Selling Rights

Since the Foxtons case in 2008 the Court of Appeal ruled in 2010 that "sole selling rights" entitles the (original) agent to damages equal to the commission they would have received if they had introduced the buyer providing the initial agreement/contract has not been terminated. This applies to a buyer introduced by any third party whether it's privately or through another agent. Here's a brief overview of the case Nicholas Prestige Homes vs Neal:

http://realestatedefined.com/php/cas...s2.php?id=2567

And here is the full judgment:

http://www.bailii.org/ew/cases/EWCA/Civ/2010/1552.html

There is a legal difference between "sole agent" and "sole selling rights".

I've read your first post and you say that there is no mention of the remuneration which the agent would charge in a sole selling rights situation. I expect it would be the same at the agreed commission since that is what they would charge if they had successfully introduced the buyer.

[PlanB]

Re: Sole Selling Rights

the agent did not fulfill all the obligations on the T & C letter . . . . . This contract was never reviewed by the agent despite us complaining that they were not meeting their obliagtions.

I would think that would be a service level issue rather than a total breach of the contract. Service level issues are dealt with by the Property Ombudsman once you've exhausted the agency's complaints procedure, assuming that they are a member of TPO. You can check that here:

http://www.tpos.co.uk/make_complaint_sales.htm

[PlanB]

Re: Sole Selling Rights

I do not have a copy of what I signed - I think it was just a copy of the terms and conditions with no mention of the timescales....I will go back through it all again. I'll see if I can find the letter that went through it. I am pretty sure no dates were mentioned and it has definitely not been re-negotiated.

You admit you signed the agent's contract and/or Terms of Business so you need to get hold of a copy of that document to see what you have agreed. I would be very surprised if it didn't state a notice period which is typically 28 days. If you've had recent viewings then the agent might argue that although the contract began nearly four years ago it is still very much alive.

[PlanB]

Re: Sole Selling Rights

Have made one offer to the agent which was refused and have been advised to make an increased offer

Who has advised you to make an offer to the agent? Was this a solicitor?

[PlanB]

Re: Sole Selling Rights

My deceased parent's property has been for sale since January 2010

Who actually owns this property now? Whose name is on the deeds at Land Registry assuming it was registered in the new owner's name after probate was granted?

This may be the loophole you're looking for if the person who signed the estate agent's contract nearly four years ago was not the owner of the property at the time. Just a thought

[lizzieevans]

Re: Sole Selling Rights

Hello Plan B
Thanks for your comments - much appreciated.
It looks like we'll have to pay them..........
Points you made :
There is no mention of a Notice Period in the letter and T & C. The T & C are in the letter I partly quoted and all the signed bit says is I agree to the terms in the enclosed letter
Myself and my daughter signed it - we were left the property jointly in the will; the property was eventually sold by the estate.
It was a solicitor friend who advised us
In the letter refusing the offer I made to them - they state " Regrettably we cannot accept your cheque in full and final settlement of your account and in this respect I enclose a copy of our instructions letter and your signed certificate setting out our Termsof acting as Sole Agents on your behalf.
Do you think its worth a complaint to the ombudsman or a mention of the ombudsman in the next letter I send to them.
Its worth pointing out I did set aside the money for the fees when we received the sale monies.
What really bugs me is that they did not meet their obligations and they passed us on to one of these online property auction sites to sell it quickly - this online company had about four houses in our region for sale and could not even tell us how many they had sold. As well as the exorbitant fees they would charge if we sold after the auction, etc. I consider that the agents gave us bad advice here.
Thank you
Lizzie

[PlanB]

Re: Sole Selling Rights

Do you think its worth a complaint to the ombudsman or a mention of the ombudsman in the next letter I send to them.
Its worth pointing out I did set aside the money for the fees when we received the sale monies.
What really bugs me is that they did not meet their obligations and they passed us on to one of these online property auction sites to sell it quickly - this online company had about four houses in our region for sale and could not even tell us how many they had sold. As well as the exorbitant fees they would charge if we sold after the auction, etc. I consider that the agents gave us bad advice here.

Let me play devil's advocate. If the agent was doing such a bad job why did you stay with them for four years? I don't know where the property is located but surely there was another agent in the neighbourhood which could have done a better job. You could have fired the first one and then instructed a replacement. You were free to walk away (giving notice in writing to terminate your contract) at any time.

As far as the auction advice goes it's hard to complain it was bad advice because you didn't take that advice. You haven't lost anything as a result of that bad advice.

There's an old saying which goes "a property is only worth what someone is prepared to pay for it". If you were asking a price that no one was prepared to pay then you can't blame the agent. Is this private buyer paying more or less than the asking price? That may give you a clue as to whether your agent got it wrong.

One thing you may be able to complain about is lack of marketing. What does it say in those Ts & Cs about marketing your property? Does it refer to advertising etc and did they fulfil that side of the bargain? If the agent didn't do what the Ts & Cs promised then you've got a good reason not to pay.

I think it's time to call the agent's bluff. After all when you sell the property the money will go to your solicitor and they will transfer it into your bank account. The agent won't get their hands on it unless you pay them. That puts you in the driving seat of this negotiation If the agent wants money and you're not prepared to give him any then he'll have to sue you in the county court for it. That's a genuine risk as I'm sure your solicitor friend will have explained.

I would study those Ts & Cs and then write a letter to the agent headed Formal Complaint setting out all the things that they didn't do and should have done. Tell them that they have breached the Ts & Cs and wasted four years of your time. Tell them if they had succeeded in getting you a buyer in 2010 then you would have banked the money and earned interest. Tell them they have caused you to suffer a financial loss by their inactivity and unprofessional conduct :blah: :blah: :blah: None of this is true, but it may give them a fright and they could back down. Enclose the cheque again in case they decide to bank it and walk away.

A lot will depend on the price you have achieved privately compared with the agent's asking price.

[PlanB]

Re: Sole Selling Rights

In the letter refusing the offer I made to them - they state " Regrettably we cannot accept your cheque in full and final settlement of your account and in this respect I enclose a copy of our instructions letter and your signed certificate setting out our Termsof acting as Sole Agents on your behalf.

Did the letter say "Sole Agents" but the contract referred to "Sole Selling Rights" as per your thread title? There is a legal difference between the two.

[lizzieevans]

Re: Sole Selling Rights

Hi- thanks
basically we stayed with him after complaining in 2011 because we couldn't afford to move - they wanted the withdrawal fee + VAT; then payment for the HIP which they had paid for; if we moved to another agent - which we looked at (4 in the area) we would have to have paid roughly a £500 up front fee; all this added up to more that 1200 which we couldn't afford as my partner had been redundant.

My complaint with them is mostly with the marketing, etc.

In the T & C they state that they will

a) Advertise the property in their monthly newsletter - No monthly newsletter has been published for years.
b) Advertise the property in the local papers - advertised once I believe - this company no longer advertises in the papers - not since late 2010
c) Put it on Right move - poor listing - one photographs and then when it was put on zoopla it was advertised as a one bed property - it was a 3 bed semi. We had to complain three times before they changed it
d) Put up signs - only one put up initially where no one could see it and then they put one by the back drive which could be seen by more people
e) Accompany all viewings during office hours - over the three years it was for sale with probably 8 viewings my partner did all but one.
It was on the market at a higher price initially and we gradually reduced it - it was a family friend who bought it and she did pay less than we wanted in the open market but by now it needed more work on it and she was a cash buyer with no chain and wanted to complete quickly so we weighed up our options and agreed a price with her. We wanted rid ......as it was becoming a burden to us not so much financially but emotionally as it was very hard to see the house your parents had lived in happily detriorate and seem so empty and cold.
I offered them 1/3 of the fees plus the cost of the HIP as a goodwill gesture which they refused but they have not banked the cheque. I will increase the offer in a letter headed Official Complaint and see what happens - the money is there in the bank waiting.
Thanks for your help
Lizzie

[lizzieevans]

Re: Sole Selling Rights

Forgot to mention - a local came up to me and asked if it was still for sale I said yes and why - and they mentioned that their friend into the agents looking for a property - 3 beds in our town and our house was not passed to them at all.
My daughter and my partner friend both rang the agent saying they were looking for a property in the area with 3 beds in a certain price range - which is quite rare here and our property was never mentioned to my daughter and my partner's friend had to push hard and the agency staff even suggested he tried another agent in the area before mentioning our property. They both had suggested to them 2 bed cottages and a large 6 bed victorian - whcih was very different to the criteria.
Thanks

[lizzieevans]

Re: Sole Selling Rights

Yes the letter I received refusing the offer says Sole Agent and the T & C says Sole Agents in one paragraph and then goes on to say something along the lines of this commission is agreed on a Sole Selling Rights basis and continues to say that their sole selling rights terms they are required by law to advice us that we are liable to pay renumeration (no mention of what this renumeration is) to them as well as other costs or charges agreed if :
a) any time uncondtional contracts are exchanged with a purchaser introduced by them during their period of sole selling rights NOT
b) with whom they had negotiations about the property during that period NOT
c) with a purhaser introduced by another agent or any other person including ourselves during the period
Thank you