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Original poster

Any lawyers? Estate Agent taking me to Small Claims.

15 replies

penguinseatmud · 15/07/2012 21:34

Hi. I am a regular but have name changed because ...
I sold my house via a nationwide EA. I signed a contract. They didn't do what was laid out in the contract. I refused to pay their full fee. I paid proportionately to the service received. I refused to pay for what I didn't receive. They are taking me to small claims court for the remainder, this week. It's been going on for over a year and they have sent me increasingly more 'pay or we'll take you to court' type letters. Ithink they expected me to go "oh shit! court. I best pay". But, I didn't becaue they don't deserve one more of my pence.

Will I be laughed out of court?
It's not so much the money, it's that they provided a really shit service and I don't see why I should have to pay for something that wasn't given. Am I being naive? I'm going on my own. I have no legal representation.
I'm not Julia Brockovitch am I? I'm fucked aren't I? The judge will peer over his/her glasses and in a frowny,stern voice say "You are being ridiculous Ms Penguin. You signed a contract. Pay this big, corporate bastards their money".
Any advice gratefully appreciated.

OP posts:
gallicgirl · 15/07/2012 21:42

In my experience of the magistrates court, I've found that if you are a lay person, a member of the public, the court clerk sticks up for you a bit to ensure your legal rights are protected. It will be the estate agent who will have the case to prove.

No experience of county court though, sorry.

YesMaam · 15/07/2012 21:42

I suppose the difficulty is is how does one work out what is the correct proportion to pay when the otherside have breached the contract by not providing x, y and z, but have still achieved the ultimate service, which is selling your property?

Presumably you have filed a defence and a witness statement and set out all the things they have failed to do, and how you have quantified them as a proportion of the overall fee?

It will be up to the Judge to decide if you are right or the otherside. If for example they failed to do the viewings, I can see a judge deducting something if you had to do them, not least because it would have saved them time and money. If they didn't prepare promotional material as they said they would, or market the property on websites, again, this might lead to a deduction.

Try not to worry though, the hearing should be fairly informal and the Judge will hopefully be nice given you are in person and without legal representation.

HTH

sleepdodger · 15/07/2012 21:46

I'm not a lawyer but I watch too much cop tv know a little about point of law don't use this as gospel or you'll lose
1- you signed a contract, that means you need to follow through on what you agreed to- in order to win you need to prove they didnt & the contract wasn't full filled, & you took all due diligent means to ensure it was ie instructing correctly, completing relevant paperwork on time etc
You will need all reliever correspondence and dates of calls rtc, most calls with corporates will be recorded 'for training purposes' if they help request them under data protection, if not they will wheel them out against you
2- bear in mind there are big court costs even if you win; if you win you still not might get your costs paid so (a) is it worth it and (b) should you have representation?
3- nosey what happened??! Wink

YesMaam · 15/07/2012 21:49

Oh and there is an estate agents' Code of Practice - see here www.tpos.co.uk/code_of_practice_sales.htm

Copy any relevant paragraphs in triplicate and take to the hearing to use in your cross examination/submissions

YesMaam · 15/07/2012 21:50

Also there are only small-ish court costs associated with small claims. Have a google of CPR (civil procedure rules) small claims track and look at the costs section

Original poster
penguinseatmud · 15/07/2012 22:00

Oh, lovely! Thank you so much for replies. I got a bit trigger happy when there were no replies and stupidly posted it in AIBU aswell.
The fee due was approx £5,500. I have paid £1,800. As I said in my OP it's really not about the money. I have sold houses before and paid EA fee without question.
They didn't negotiate the sale of the property. I did it myself directly with the vendor after the EA told me 'negotiations have broken down'. I sold for £40,000 less than the valuation. Fine, but the fee was based, and set, on their inflated valuation.
The two pwople charged with selling my house never visited it it, at all, ever.
The 'lead' negotiator lied about converstaions with EA of my purchase.
Oh, it goes on but they are a big company and I just think it's unfair that I pay for what I didn't receive. If I bought a hoover and it was missing its sucky thing - vacuum - should I have to pay?
I'm just worried they'll be so used to this it'll be a walkover when I want to stand up for myself and say "NO!, it's not fair!"

OP posts:
YesMaam · 15/07/2012 22:09

So other than initially marketing your house, by say putting up a for sale board and drawing up particulars etc, they did nothing?

Sounds like you have a good case, provided you can point to the parts of the contract/code of practice (which you can say is implied) that say
a. the fee will be a % of the sale price (rather than the valuation)
b. they have not complied with the terms and conditions for viewings/negotiations etc

Don't worry about them being a big company, the Judge will only care about what happened, and what the contract says, not status

Original poster
penguinseatmud · 15/07/2012 22:21

YesMaam. The fee was fixed on the valuation, not sale price. The people charged with selling my house never set foot in it. They didn't negotiate sale price, I did. I sent a letter of complaint immediately after the sale went through. The EA rang me to ask why I'd instructed my solicitor not to pay and I said I wan't happy with their service and who should I complain to? Him? I asked if that was the correct protocol for his company and he said yes. I received a reply 4 months later saying he'd investigated my complaint and couldn't uphold it.

OP posts:
YesMaam · 15/07/2012 22:30

So essentially, a fixed price for selling your house but you do not think all the fee should be paid because they did not properly fulfill the contract by doing what they promised to do.

Focus on the terms of the contract, any relevant parts of the CoPractice, and what they failed to do.

I expect they'll say that preparing the marketing material and time and effort spent on marketing (websites etc) far exceeds what you have paid...

Good luck

Original poster
penguinseatmud · 15/07/2012 22:41

Thanks YesMaam, they probably will but the particulars of the claim are:

  1. They were instructed to sell the property.
  2. They introduced the buyer.
  3. They are entitled to the commission.

But the contract sets out that they will do so much more, especially:

  1. get the best price for the property. They didn't, I did.
  2. Give professional advice. The advice given was awfuland completely unprofessional.
OP posts:
SizzleSazz · 15/07/2012 22:45

Sorry, but i think you should have taken them to the Ombudsman. I did this as i was not satisfied with the service and it was all sorted out by them.

maybe give them a call and see if they have any advice?

Original poster
penguinseatmud · 15/07/2012 23:47

Sizzle. I would have but I think their advice was that the complaint should try and be sorted out with the EA first. As their complaint's procedure took so long the Ombudsman route sort of melted away.

thanks for all your responses.

OP posts:
NapaCab · 15/07/2012 23:57

You'd probably have to have it all in writing and have recorded your dispute with the EA e.g. e-mails outlining why you're not happy with the (lack of) service they provided and why you think that justified a reduced fee.

If you don't have anything in writing, they can deny you ever expressed any dissatisfaction and claim you're just trying to dodge a bill.

( Caveat : I'm not a lawyer but in business if a client tried to pay less than the fee we charged, they were in the wrong unless they could prove that the fee was disputed and they had made clear why. That's business however so consumer issue may be different, hence the existence of Ombudsman I suppose)

Original poster
penguinseatmud · 16/07/2012 00:20

Thanks Napa, it is all in writing. I sent a comprehensive letter of complaint in the first instance.

OP posts:
Peppin · 17/07/2012 08:52

I'm a lawyer (litigation). You'll need to draft your defence setting out your position regarding what the EA was meant to do but didn't. This should be by reference to what is in the contract you signed, i.e. of the contract provides for the EA to have conducted the viewings and didn't, you say so.

Does the contract exclude your right of set-off? Are there any limitations on liability (i.e. a clause that says something like "if EA is in breach of contract then it's liability is limited to £100)? If so, and if the EA seeks to rely on these clauses in the Particulars of Claim, then these clauses may be "unreasonable" for the purposes of re Unfair Contract Terms Act 1977 (see section 11 and Schedule 2) and if they are, they will be unenforceable.

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