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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26016
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I put my property on the market with an Estate agent in

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Good afternoon, I put my property on the market with an Estate agent in April this year and signed the terms of business which included a sole selling rights period of 20 weeks. The implications of this were not explained to me at the time. My daughter now wants to buy my property from me privately. I am trying to understand the wording in the terms of business regarding the sole selling rights; it states 'if unconditional contracts for are exchanged with a purchaser who is introduced either by another estate agent or indeed yourself during the sole selling period'. Does this still apply if my daughter is the purchaser? Please can you confirm whether I am still contractually obliged to pay the full commission to the estate agent?
regards
Sue
Submitted: 1 month ago.
Category: Law
Expert:  Joshua replied 1 month ago.

Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

Does the estate agent know of your daughters wish and has she been in contact with the estate agents?

Customer: replied 1 month ago.
Hi Joshua, the estate agent is aware of my daughter's intention to buy the property but she has had no contact with the estate agent firm at all.
Expert:  Joshua replied 1 month ago.

Thank you. Do the agents have any written evidence that she is intending to buy? How are they are aware of her intention?

Customer: replied 1 month ago.
I was honest with them when I informed them that I no longer wanted to market it with them.
Expert:  Joshua replied 1 month ago.

Was this verbally?

Customer: replied 1 month ago.
I followed up our telephone conversation with an email as requested by the agent.
Customer: replied 1 month ago.
At the time I didn't understand the implications of the term 'sole selling rights' I thought I would be able to sell it to my daughter without penalty.
Expert:  Joshua replied 1 month ago.

Thank you. Providing the agent cannot show that the introduced your daughter as a buyer to you - i.e. it was not their suggestion that she purchase, then there is no difficulty selling to your daughter but you will need to ensure that you do not exchange contracts within the exclusive period the agents have the property as sole selling rights.

In practice this should not be a great difficulty unless there is serious time pressure for the transaction as conveyancing often take a 2-3 months anyway. Depending upon how many weeks into the agreement you already are it may be that you can therefore begin the sales process to your daughter and delayexchange until after the 20 week period is ove. Remember you will need to given them written notice to cancel the agreement after the 20 week period is over - it is unlikely to automatically come to an end unless the agreement provides as much. If you would like me to look at the terms I would be happy to do so.

The above is likely to be the easier approach than getting into a contractual dispute with the agents over whether you are bound by the agreement which will take time to resolve anyway. However if you prefer to challenge the validity of the agreement, you can do so. The property Ombudsman to which the agent must be a member Code of Practice requires agents to take particular care in defining and distinguishing between sole agency and sole selling rights agreements, and to clearly explain the implications to the client. If the agent has not done so then you can make a complaint to the Ombudsman who can decide whether the agreement is binding or not - the onus is on the agent to show that they sufficiently explained the agreement to you so you understood the implications. However as above this will take at least 2-3 months to resolve itself and exchanging contracts before it is resolved unless you do so having cancelled their service would be risky as you would not know the outcome of your dispute.

Does the above answer all your questions? If it does, I should be very grateful if you would kindly take a moment to click a rating for my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer: replied 1 month ago.
Thank you Joshua, the sole selling agreement will come to an end on the 11th September so exchanging contracts after that time will not be a problem, however the agent is saying that because the buyer (my daughter) was 'introduced' during their sole selling period, I am still liable to pay them commission. He has also stated that if I sell privately (without the involvement of an estate agent) within 2 years I will also have to pay them their commission!
Expert:  Joshua replied 1 month ago.

Based upon what yous ay they have not introduced your daughter. The question of introduction has been considered by the Court of Appeal in Foxtons v Bicknell. The court decided that an agency must be able to show that they were the agency that introduced a buyer to the sale, i.e.they have to show that they introduced the purchaser to the purchase, and not merely to the property.

As your daughter has had no contact with the agency they are likely to find taht very difficult because they need to show that they were instrumenal in the purchaser agreeing to purchase the property. I assume any negotiations have taken place between you and your daughter and the agent has not been involved in any way. You may wish to refer the agent to the above case which in practice they are likely to be well aware of as the decision is referred to in their code of practice and ask them to confirm that they accept they will not be entitled to commission in the above circumstances failing which you will make a formal complaint on the point and as regards ***** ***** understand what it was you were signing and refer the matter to their Ombudsman for a decision. I can see no realistic hope that they could enforce payment provding any exchange takes place after you have cancelled your agreement but if you prefer to not take any risk if you commence the complaints process you will not be wiaint too long for a decision before you exchange.

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer: replied 1 month ago.
With regards ***** ***** wording in the terms of business regarding the sole selling rights that state:
'if unconditional contracts for sale are exchanged with a purchaser who is introduced either by another estate agent or indeed yourself during the sole selling period'.
Does the liability relate to the introduction of a purchaseror the exchange of contracts, within the sole selling period?
Expert:  Joshua replied 1 month ago.

That term will not be enforceable. This will be an unfair term under the Unfair Terms in Consumer Contracts Regulations and is contrary to the Court of Appeal Decision. The agent is clearly writing their own terms without any legal experience and in any event they are bound by the decision in the Bicknell case above as it is common law now regardless of what they put in their conditions. They may guilty of an offence under the Consumer Protection from Unfair Trading Regulations 2008 by including terms which they know or ought to know are unlawful and trading standards may take an interest. Whilst my view is it will be perfectly safe to proceed regardless of that term because it will be unenforceable clearly the agent is aggressive and either genuinely believes they are entitle to rely on that provision or they are going to seek to make a claim regardless causing you stress.

Accordingly despite your being able to proceed as above, you may prefer to raise a complaint now so that you have closure and clarity before you commit to an exchange of contracts with your daughter. They must respond to your complaint within 8 weeks of making it and then you can refer it to their Ombudsman for a binding decision free of charge.

The agency must be a member of one of three ombudsman services by law and you can either ask them which is the applicable one or you can search their websites online:

https://www.gov.uk/redress-scheme-estate-agencies

The decision of the ombudsman is binding upon the estate agent.

Is there anything else I can help you with?

Joshua and other Law Specialists are ready to help you
Customer: replied 1 month ago.
No thank you, ***** ***** been very helpful. Thank you for your time and advice!
Expert:  Joshua replied 1 month ago.

A pleasure. If I can help any further please do not hesitate to contact me.