Unfair terms in Agent's contract

[selfhelp]

I have had a claim by an agent for a fee for the sale of my property. I had gone to the Property Ombudsman (PO) but short of walking in to the agents office with a hidden mic and camera there was little I could put forward as proof of how I was misled prior to placing business with them. Not that I ever thought I would need to be armed with a hidden mic/camera when walking in to an estate agent's office!!!!

The PO's decision (in favour of the agent) was that they sold the property which was what they were there to do i.e. introduce a buyer to a seller. Irrespective of sub standard service and general ineptitude and apathy. However they added that they wouldn't get involved in issues over Unfair terms and this was not their remit. In short the issue I have is that I sold with vacant possession to a first time buyer in a buoyant market, the process taking 3 months. The reason for the delay was that once the sale had been agreed the agents would simply not communicate with me or the buyer. Leaving myself and the buyer to lurch forward somewhat unprofessionally.

My contention is that if the buyer and/or I would have taken add ons (mortgage/legals) they would have been all over us like a rash through to completion. Their marketing material also implied they were there through to completion. However the fact is that as there was no further financial incentive they pulled down the shutters and put the phone off the hook. Their contract also hints at 'service'. Without doubt they operate a two tiered service or two levels of service, one for me and one for a.n.other who takes a mortgage with them after falling for the usual propaganda, to me this seems fundamentally wrong and within Unfair Terms. As I see the thrust of any case I would have is that why then should I pay the same fee as a.n.other for the lower tiered or sub standard service. If prior to the contract I was advised that once a sale was agreed they would blank me I would never have entered in to the contract. I have to get a defence together and hopefully I can present it as professionally as possible. Any help gratefully appreciated

PS. I tried to keep it as brief as possible but any more info I can add as and when.
[MENTION=71570]R0b[/MENTION] [MENTION=49370]Kati[/MENTION] [MENTION=6]Amethyst[/MENTION]

[EXC]

Re: Unfair terms in Agent's contract

It doesn't sound like an unfair terms or even contractual issue to me, just poor service.

[selfhelp]

Re: Unfair terms in Agent's contract

I don't think, in my opinion, there was ever any doubt about poor service but I'm not the first and I'm sure I won't be the last. without banging the drum about estate agents and so on. I still have the original contract with a reference to 'service' but imagine it would be fairly water tight. The over riding issue is the seeming futility of having to pay this amount of money for such a derisory service. If there is nothing within the UTCCR I can use or rely on then I may have to resign myself to rolling over and paying, as submissive as it is. Although I would have preferred to go to court and told the judge what a charming bunch they are.

[EXC]

Re: Unfair terms in Agent's contract

With UTCCR a contractual term has to be unfair in itself:

A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

The performance of contractual terms (which I think is the issue) is another matter.

[selfhelp]

Re: Unfair terms in Agent's contract

Asides from if there were something to use within UTCCR could I use 'misleading' advertising

[des8]

Re: Unfair terms in Agent's contract

So you are thinking in terms of misrepresentation as per Misrepresentation Act 1967. in that they promised a level of service which induced you to enter the contract, but they not only failed to supply that service, but never had the intention to supply it.

If you have sufficient evidence it MAY work as a defence

Also to tentatively disagree with EXC (and risk a ban lol) doesn't this lack of service fall under CPUTR Part 2 Reg 5 (5) (g)?

[R0b]

Re: Unfair terms in Agent's contract

Hello, agree with what's been said so far, without seeing the contract and/or term you are referring to it will be difficult to say whether its an unfair term or not. But equally negligent misrepresentation could be a defence under CPUT

[EXC]

Re: Unfair terms in Agent's contract

Also to tentatively disagree with EXC (and risk a ban lol) doesn't this lack of service fall under CPUTR Part 2 Reg 5 (5) (g)?

Possibly but without the details it's tough to say. All I'm sure of is that it won't fall within UTCCR.

[Crazy council]

Re: Unfair terms in Agent's contract

Can i just add something here

. In short the issue I have is that I sold with vacant possession to a first time buyer in a buoyant market, the process taking 3 months. The reason for the delay was that once the sale had been agreed the agents would simply not communicate with me or the buyer. Leaving myself and the buyer to lurch forward somewhat unprofessionally.

12 weeks turn around from buyer expressing first formal interest, to completion, about averidge unless the area is highly sought after, especially if there a first timer with mortgagee
Also, If any one of the other parts in the chain slow due to workload ( typically solicitors, ), it slows everyone
Mortgagee cos, tend to be a little more edgy with first time buyers in the final stages, making sure everything's done correctly.
Agents tend to concentrate on the buyer ( there the one with the money )

[selfhelp]

Re: Unfair terms in Agent's contract

Apologies for delay, The sale commenced @ mid November 2013 completed late May/14. The delay I put down to the fact that once the sale was agreed and there was no further financial incentive there was no further communication. Not even a returned email. There are, without doubt, 2 levels of service and/or a 2 tiered service. I will run with misrepresentation and I also think I can summons the story teller in to court and ask him to confirm to me, in front of the judge, what he said to me. The sales literature is also the usual promises of 'seeing the job through' blah blah. also is not a 2 tiered service while expecting the same fee discriminatory and/or prejudices my sale confirmed by the length of time in a buoyant market. However perhaps the issue of discriminatory service is for another day. The length of time from agreeing the sale and completion was 3 months. Thanks again for input.

[selfhelp]

Re: Unfair terms in Agent's contract

Forgot to mention buyers lenders had local search indemnity which I advised the agent on but agent said would take as long to confirm with the lender as it would to complete.