DIscussions about buying the property started when the property was being managed by the agent. Offer was also made when the property was under the agent's management
Does the agent accept that there is nothing due in respect of the property mgt, and that they are simply claiming because it is sold?
Why did you take over the mgt?
Nothing due in management fees. In fact the first tenant did not pay me the last months rent and they let the tenant vacate the property without paying. Have all paperwork to show this. They did nothing to help me with it. Was essentially unhappy with their services, hence took over management
Thought of a few more points as there was a tenant before this chap, which was when the contract was signed with the agent. The timeline may also be relevant
1. First tenant in Sept of year 1 for 12 months,when the contract was signed. I have signed nothing else with the agent after this. SO the first contract has been extrapolated (correct terminology??) to the second tenant
2. Two months empty property (Sept and Oct year 1)
3. Second tenant in October of year 2 for 12 months until September year 2; new contract signed, but there was no page regarding selling information sent to me with the second contract (sent by email)
4. From September year 2, this was extended on a 3 monthy basis as the tenant was not sure regarding his long term job status in the region
5. This was when the discussions and offer to buy the house took place.
That is correct. The first contract was signed in 2009. The second person was also found by the agency, but no contract was signed especially for the second tenant (who bought the house). Before selling, I asked for a copy of the contract (sent to me by email hence has a date/time stamp etc) and this page was not there on the email. So I felt comfortable selling the house without repercussions.
The word you were looking for, for the contract is "novated", ie replaced witha new one. I don't think you can be bound by a contract with a term in whichhas been replaced with a contract without the term in that they want to rely on.
Assuming it is under £5k I wouldn't be paying anything and letting courtdecide. It will be small claims under £5k so the worst that can happen is youhave to pay the sum (if you lose for some reason) they claim plus court fees.They don't get solicitors cost back in small claims court generally
Can I help further?
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No worries regarding delayed responses. Just to clarify:
1. The previous contract will not apply to the new tenancy unless another one has been specifically signed and "novated".
2. Although the house was sold when I was managing the tenancy, do you think because the offer was made during the time they were managing it, they still have a claim?
3. I got a bit confused with the chronology: I signed the contract with them in year 1, but the property in year 1 was let out by another agent. The property then went on the market again when the first tenant left, and the agent in question found the tenant. They used the contract I signed in year 1 to manage it in years 3 and 4.
Would be grateful if you can address these points.
1 On your original facts the new agreement with the agentsupercedes the old one they want to rely on. But see 2 and 3 below
2 Yousaid that they were managing it but you said that at that time it was under newagreement with no sale commission clause in. That seems to conflict with whatyou now say in 3
3 Ifthere has only been one contract with this agent, then they can probablyenforce that term.
If that is correct and you would rather make them anoffer, I can tell you how to deal with that to prevent them coming back formore
So sorry I got my facts wrong:
1. There has been only one contract with this agent. They found the tenant a full 2 years after the contract was signed.
2. What worries me is the wording ""Should at any time after the commencement of the tenancy unconditional contracts for the sale of the property are exchanged with the tenant, the agency will be entitled to a commission of x% plus VAT."
3. The email attachment of what they sent me recently when I asked for a copy of the contract did NOT include the information about the fees.
4. I would greatly appreciate your thoughts on making them an offer
So did the contract that you signed include the phrase or not? What has the email got to do with it?
If you had the original contract why did you ask for another?
In cases like this, I never suggest making anoffer. I suggest sending a cheque. Armed with a cheque in the hand for some ofthe amount they want, compared to an argument over the whole of the amount,(and arguments. They may win or lose) the cheque in the hand is a prettypowerful incentive to accept it.
So consider deciding how much you would liketo pay the (you need to make it attractive enough) and send it with a coveringletter headed "without prejudice save as to costs". That means that they cannotproduce the letter in court as any proof that you admit owing them any money atall.
Tell them in the letter that you are offeringthis money in full and final settlement of all claims against you, past,present and future, and that by cashing it they accept it as such. Tell themthat if they do not accept it, they should return the cheque to you and if theyissue legal proceedings, you will defend them on the basis of A, B, C,whatever.
Tell them that if they do not understand thesignificance of the letter. They should take independent legal advice.
I can tell you this approach works nine timesout of 10, provided the offer is reasonable and not derisory.
For legal reasons which I will not boreyou with but which go back several hundred years, the cheque must not come fromyou, but was come from a third party, friend, relative, solicitor, our accountant,neighbour, girlfriend, wife, husband, whoever, just not from you.
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