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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10610
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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Please can you help me with my query. I had an offer on my

Customer Question

Please can you help me with my query. I had an offer on my property at the beginning of August & within 2 days their chain fell through. I chased the agents regularly then was told at the end of November that they were now in a position to proceed. At this time the property I wanted to buy had been withdrawn from the market so I said I wasn't in a position to proceed with the sale. They then told me that I had signed a contract agreeing to 50% of the fees. Fair enough I signed the contract but nobody drew this fee to my attention, I have bought & sold several properties over the years and feel that i was duped into signing the contract without having this information disclosed to me. I have never had anything in writing concerning the offer, and i never confirmed anything in writing either. Where do i stand? I feel that they have basically got me backed into a corner. Can you advise me what my rights are?
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

and thanks Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

Could you give me a little more information, please-

So your Agents are saying that because they have "found" you a Buyer, you are responsible fees?

Have you now formally withdrawn your property from the market?

Were you not ever given a copy of the Agent's agreement?

Could you let me know the name of your Agents, if you don't mind?

I look forward to hearing from you.

AL

Customer: replied 2 years ago.
The agent is Newton Fallowell.
The wording was 'you will be liable to pay Newton Fallowell remuneration equivalent to one half of our agreed fee and in addition to any other charges or expenses agreed, if a ready, willing and able purchaser is introduced by us and the terms are agreed sale of the property in accordance with your instructions, but you subsequently withdraw, reason, and unconditional contracts are not exchanged' .
I was given a copy of the contract, however I did not read the small print at the time.
I have now removed my property from the market until I find somewhere I want to buy.
Expert:  Aston Lawyer replied 2 years ago.

Clare,

Thanks reply.

I will come back to you in a few minutes.

Kind Regards

AL

Expert:  Aston Lawyer replied 2 years ago.

Clare,

Most Estate Agents agreements allow only to be payable once Contracts have been exchanged.

Sadly, there are some Agents Agreements that do include a provision that a part of their commission becomes payable if they have introduced a "ready, willing and able" buyer, and the Seller then decides to withdraw, and if so, their fee is payable. Agreements should therefore always be read before signing.

However, in your case, I feel you have a strong case to argue no "ready, able and willing" buyer had been found. I say that, on the basis that I assume no Contracts had been issued, and no mortgage had been obtained by the buyer. If so, in no circumstances can you say that a party who has merely made an offer to buy a property is a "ready, willing and able" buyer. Indeed, if they never sent you confirmation of the offer made by the buyer, and hence you had no way of "accepting" their offer, it is clear matters were merely at the negotiation stage.

Newton Fallowell are members of the Professional Guild of Estate Agents, and as such, need to comply with the body's terms, an extract of which I set out below-

3 Terms of Business, Instructions, Commission and Termination

  1. By law you must give your client written confirmation of his (see 12 below) instructions to act in the buying or selling of properties on his behalf. In so doing you must give the client written details of your fees and expenses and of your business terms. You should give the client these details before he is committed or has any liability towards you. If appropriate, you must notify your client in writing if you or an 'associate' (see 9b below) or 'connected person' (see 12d below) wish to offer estate agency, surveying, investment, insurance or other services to people proposing to buy your client's property through you.

  2. Except previously agreed expenses and fees, fees will only become due if a purchaser enters into a contract (in Scotland, concludes missives) through you, to buy the property, or as stated otherwise in your terms of business. If you use the phrase 'sole selling rights', 'sole agency' or 'ready, willing and able purchaser' within the terms of engagement, you must explain these phrases in writing, as set out in The Estate Agents (Provision of Information) Regulations 199

  3. You need to use these definitions in full otherwise this would be deemed to be misleading because of the other provisions in the contract. If this is the case, you should amend the definition to give an accurate description of the client's liability to pay. If you use any different term, which has the same meaning, you should still use the relevant definitions to explain your term.

I refer you to paragraph 2 above, as I feel they have also possibly contravened these terms.

I therefore suggest that you phone the Guild tomorrow and explain your issue. They will be able to assist. Telephone-(###) ###-####4141 or email- [email protected].

If you have no joy with them, N Fallowell are also members of The Property Ombudsman which is an impartial redress system . www.tpos.co.uk

Before you can approach the Ombudsman, you first have to write a formal letter of complaint to N Fallowell.

I hope this helps you and sets out the legal position.

Kind Regards

AL

Expert:  Aston Lawyer replied 2 years ago.

Clare,

Can I assist you any further?

Kind Regards

AL

Expert:  Aston Lawyer replied 2 years ago.
Clare,
Can I assist you any further?
Kind Regards
AL