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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 27897
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We engaged an estate agent in Walthamstow to sell our house

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We engaged an estate agent in Walthamstow to sell our house in East London in February this year. There were very few takers, in the end they convinced us to lower the price.We got an offer for 565K and accepted it. There were three chains involved. Then the estate agent wrote to us to say that the buyer wanted a 3K reduction. My partner was busy that day and didn’t respond right-away like he usually did. The estate agent called us within the hour to try and convince my partner to accept the reduction. My partner stupidly agreed to 50% of the reduction. My question back then – who was the estate agent acting on behalf? Us or the buyer? This is issue number two.Issue number one was they were very messy in setting up viewings (the house was vacant) and we only received last minute email about viewings.After the acceptance of 1.5k reduction, we started the process of selling the house to the buyers, whom meanwhile wanted to have the house surveyed by multiple parties. During this period of time, we were not always notified when contractors visited the house. Issue number three.My partner was checking on the house and realised they left the back door of the house unlocked (not closed properly). Issue number four.We complained to the manager – negligence, doubting their professionalism as they behave like the buyer’s representative, not ours. The manager offered a small reduction in their commission. We accepted it and reminded him that it’s an admittance of negligence.Then the lockdown came, many staff of the estate agent were furloughed including the manager himself. All it’s left is a woman Kim. Further into the lockdown, the person on the bottom of the chain wanted a 50k reduction. So the sale fell apart.
We were looking at options when the buyer managed to sell their house and wanted us to “honour” the initial price of 563.5K. Kim also tried to get us to “honour” this price. We said no. They accepted 565k. We told Kim several times that 565K was the initial offer we accepted and questioned why she would ignore this. Never heard back from her.Then the buyer continued to send people to survey the house – electrician, damp specialist… and at some point, they wanted a 20k reduction, claiming that there’s damp in the house. We refused and said we would put the house back on market. All these times, Kim did nothing – she never called the buyer to do any sales pitch nor to find out the details of the findings which led to the 20k reduction request.The buyer initially bought the house for 565k as we stood our ground. We told our solicitor that we would handle the estate agent’s commission ourselves. This was in July. We asked the estate agent for a visitor log, as we knew it from a previous house sale as seller, we are entitled to. We never heard back from the estate agent. All they did was to invoice us and threaten us with legal action. We always replied and reminded them that we never received the visitor log from them. Then someone would write to us from the account team to ask for money. All the other emails about their negligence and visitor log were ignored. There are about a dozen of them, if not more.I spoke to the owner of the estate agent yesterday and he said of course they had a log of everyone that had made appointment to view the house. He reminded me that we had signed a contract and I reminded him that he had signed a contract which obligation he did not fulfil. He then went on to say that even if they had made mistakes, it doesn’t mean that they are not going to charge us a commission. Quite blatantly! I asked him to send over the visitor log before we would consider paying them anything. Then I hung up.Since they have ignored us all this time, it is clear that they never had any idea who entered the house – both potential buyers and the subsequent contractors hired by the actual buyer. One would think they had all the previous email communications with people and could have made something up in the four months that they had been ignoring us.They have basically let people trespass our property.We spoke to the Ombudsman, which in my view is pretty useless. They said we should pay first then complain/contest about it later, which I disagreed because the estate agent’s continuously threat constitutes harassment in my view. And this is the final straw. It’s been very stressful being threatened like that. Like as if we are going to put to jail and leave our small children behind if we don’t give them the money.Can you give us a few pointers about this matter please?

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years experience.

  1. I am very sorry to read of the above. May I clarify that from what you say above you did eventually managed to sell your property and complete at the original price of £565,000?
  2. have you formally submitted the complaint to the agents and then subsequently the property ombudsman? I note you refer to comments the ombudsman is made but I am not clear as to whether this is in response to a formal complaint or a general enquiry you made of them?
Customer: replied 19 days ago.
it's sold for 565k and we have negotiated that ourselves. The estate agent actually asked us to accept the reduction. Yes we have formerly made complaint to the agent but was ignored. We went nowhere with the Ombudsman as they said we should pay them first then make a formal complaint. We would have paid on day one after the completion of the sale if they had got back to us with the visitor log. They didn't.

thank you. Based upon what you say, it seems to me that the agent is certainly due a commission because the sale took place under the terms of their retainer to you as agent. I do not think for what you say you do speak this in principle but rather your dispute is as regards ***** ***** of commission that should be due as a result of the above inadequacies in respect of the service.

Analysing this from a legal perspective alone, if one looks at the outcome, you did achieve a sale at the original asking price and therefore there is no financial loss element which you can introduce as a basis for any claim. Accordingly, your basis for any claim for reduction would be based upon breach of contract for failure by the agent to carry out the service they undertook to carry out on your behalf with appropriate skill and care in all respects. He would presumably play and this led to additional work being required on your behalf involving additional telephone calls and also at certain points, potentially endangering the sale will ultimately happily it did conclude successfully.

Accordingly, the holding all payment from the agent may not be entirely wise as I cannot conceive realistically that any decision however favourable to you could conclude that the agent is not entitled to any payment under their invoice whatsoever. Accordingly, as a starting point you may consider making an offer which you consider to be fair and reasonable in all the circumstances as full and final settlement making clear how you have quantified and calculated any deductions you seek to make ( in other words, clearly "show your working"). You can send your correspondence together with a cheque in the amount offered, and if the agent banks your cheque, this is conclusive evidence of acceptance of your offer and it is very difficult for the agent to subsequently claim any further funds from you.

If the offer is rejected, you can advise that you will proceed with a complaint to the ombudsman - I am not aware of any rule in the ombudsman's ADR regulations that requires that you must have paid the agent before you can bring a complaint though the ombudsman may be able to point you to such a rule. In the circumstances, for the above reasons, you may still wish to offer some payment on account to the agent rather than withhold all payment.

if the ombudsman refuses to accept your complaint, as above, I'm not aware of any such provision for them to do so, you still have the right to defend your position in court and it would be for the agent to issue proceedings against you for recovery of any outstanding balance of their invoice in the circumstances and you would have the opportunity to defend their claim. In the same circumstances, it makes sense from your perspective to make any payment you consider to be fair to them either ideally as a full and final settlement as above failing which is a payment on account to reduce the amount in dispute to the actual amount in dispute rather than the whole amount part of which you presumably or failing which would be wise to accept is owed. The benefit of this is that in the event to perceive the course, it would reduce potential costs in court and would hopefully ensure that it is heard as a small claims matter on the smaller sum in dispute rather than a fast track claim for a higher sum which may allow some legal costs to be claimed and generally increase court fees and costs generally

Customer: replied 19 days ago.
Hi Joshua, thank you for your advice. We will do exactly that. Plus a No-star review of this estate agent on Google and Trustpilot. Thanks again.

I'm glad the above is of some assistance I hope you are able to resolve the matter to your mutual satisfaction with the minimum degree of dispute.

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