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Original poster

estate agent trying it on...what are our chances?

33 replies

ionesmum · 07/05/2005 13:30

We are hoping to buy a house from a friend. We have known the family for five years, and have known that their house is for sale for two years. The only way we can afford it is because it is a private sale so the owner will be saving on estate agency fees, and therefore is prepared to drop his price. Now one of the local agencies is saying that he will have to pay fees as they have e-mailed the details to us a month ago, even though we are familiar with the house and started to talk about buying it a long time ago. We have never viewed the property through them or even discussed it with them. I understand that some contracts say that fees are payable if a buyer finds out that a property is for sale because of an e'mail, but we clearly are aware that the house is on the market through our friendship, and prior to the e-mail. The owner is refusing to sell to us unless either the agent changes their minds or we cover his fees, which we can't afford. We think the agent is in the wrong. Can anyone help?

OP posts:

bran · 07/05/2005 14:05

Did you ask them to e-mail you the details ionesmum? If so I think they may have a case as they could claim having the details made the difference between you making and offer and not making an offer.

However, if none of you are in a rush your friend could always take the house off the market and you could withdraw your offer and then do a private sale in a few months time when you could claim that the sale was a different offer to the market and not influenced by your contact with the estate agents. Read the small print of your friend's contract though, just in case they have something that still gives them a claim.

Heathcliffscathy · 07/05/2005 14:07

they are trying it on. i'm sure there will be a lawyer along soon, but as i understand it, estate agent contracts don't have a leg to stand on in court anyway.....

CarolinaMoon · 07/05/2005 14:07

Ionesmum, is the owner saying that their contract with the agent actually requires them to pay the fee in this situation? (i.e. when you didn't find the house through them or view it with them). Does the owner/agent contract have a loophole whereby the owner can take the house off the market and then sell to you afterwards?

Kaz33 · 07/05/2005 14:11

Look at the contract, it is probably a question of the exact wording of the relevant clauses. Post it on here, I can give you some initial thoughts. Then if it looks clear pay for their solicitor to look at the wording and advise the seller. Non practising commercial property solicitor.

Personally I feel that they trying it on and if you take a strong stance with them they will back down. Unfortunately it is the decision of the seller as they will be the ones sued if the estate agent takes that stance.

Original poster

ionesmum · 07/05/2005 14:11

Thanks for your replies. I didn't ask for the details to be sent to us, they just came as part of a general mail shot. We started negotiations to buy the house a month before this arrived; I even took my parents round to see it!!!!

I think it is a six mo period before the contract expires for any sales, which won't suit us as we are both under pressure to move - we need space now and they have somewhere lined up to move to.

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Original poster

ionesmum · 07/05/2005 14:13

Thanks, Kaz. I don't have the exact wording but will get dh to find out when they play cricket together tomorrow.

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Kaz33 · 07/05/2005 14:17

So you registered with this estate agency while you looked for a property. They sent you a general mailshot by email including this property as it matched your general enquiries.

Tell them to go to h* - not a leg to stand on !

However, I have seen estate agents contracts where it says if you sell the property whilst under contract even to a person not introduced by the estate agent you are liable to pay the fees. Is this one of them ?

Even if it is, my gut instinct is that is dodgy in the extreme and though I have no knowledge of this I am sure this has been litigated on. Just because a contract says something doesn't mean that it can be enforced.

Kaz33 · 07/05/2005 14:19

Driving to Cornwall on holiday tommorow but will try and get onto site in the next couple of days - DP goes nowhere without his laptop.

Original poster

ionesmum · 07/05/2005 14:28

Thank you so much, Kaz. Yes, that is about the size of it, the property details came through with a load of others because it matched our requirements. We were already interested but we were registered with all the local agents.

I will pass this on. This is so helpful of you.

Have great trip!

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StuartC · 07/05/2005 14:32

I've had dealings with an estate agent recently. Their contract agreement, which the would-be seller signs, says "... any negotiated sale that arises will be taken as having been achieved as a result of our marketing and will therefore attract the full commission as set out herein, unless we have been notified, in writing, within 48 hours of the completion of this agreement as to the details of such parties you wish to exclude from this agency."
If this is similar to the contract signed by your friends, they had 48 hours from the time of signing during which they could have given your details to the agency as "excluded persons".

Original poster

ionesmum · 07/05/2005 14:45

THank you. But it does say 'negotiated sale', and assuming this means 'negotiated by the agent' then this isn't the case.

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Original poster

ionesmum · 07/05/2005 14:47

Sorry, typing with one hand as dd is on my lap, that sounded a bit short. Stuart, I would think a decent lawyer could drive a horse and coaches through that contract.

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Mirage · 07/05/2005 20:39

We are buying a house from a family friend.It was with 2 agents although neither agent sent us any details.Our friend just rang the agents,took the house off the market & told them that she was selling to a family member.That was it & as far as I know,neither agent has tried to get our friend to pay fees.

Can the agents prove that you actually received the email they sent?

Original poster

ionesmum · 07/05/2005 21:44

Thanks, Mirage. I have no idea if they can prove it or not. It all sounds like nonsense to me. Thye'd be earning thousands for absolutely nothing.

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StuartC · 08/05/2005 08:53

ionesmum - when this is all settled could you post with the final details?
I'm sure it would be of interest to a number of people.

Mud · 08/05/2005 09:02

"they'll be earning thousands for doing nothing"

you are surprised at that ?

sweetkitty · 08/05/2005 09:08

I'm with an estate agent and our house isn't selling, I phoned and asked them if I found a buyer would I still have to pay their fees - they said no!

Don't know if that works in your case. I would get a lawyers advice asap but I'm sure it will be fine.

noddyholder · 08/05/2005 09:08

Isn't it the seller who pays the agent ?

Freckle · 08/05/2005 09:15

You will need to see the contact really, but normally estate agents can claim to have negotiated the sale if they introduce the buyer to the property, either by virtue of showing them round or by sending details. If you can prove that you were interested in the property before they sent the details, then I doubt that they would be successful in trying to get their fees.

If the contract says that they are entitled to their fees anyway, I would suggest contacting the Office of Fair Trading as that sounds as though it might be an unfair contract term.

Your problem though is that it is the seller who is going to have difficulties if the estate agent gets sticky about it and I suspect that they will want assurances that the agents are not going to pursue them before they will proceed with you.

Mud · 08/05/2005 09:15

sweetkitty - check your contract and get it in writing

there have been cases taken to court where sellers have had to pay

Original poster

ionesmum · 08/05/2005 14:43

Mud Indeed!

Noddyholder, yes it is the seller who will be paying the fees; he has dropped his price on the understanding that it is a private sale but if he has to pay fees will raise his price - in effect we will have to pay them for him, which we can't afford to do.

Okay, the plot thickens...

Dh saw his mate this morning. So far he hasn't told the agent that he is hoping to sell to us privately. The reason he is concerned is that his contract mentions the e-mail as counting as an introduction, and (get this) the agent sends him a list each month of the names of people to whom they have sent details either by post or by e-mail. Dh has seen this, they really have sent our name to our friend and therefore presumably to everyone else whose details we have recieved. Has anyone come across this before? Surely this is a misuse of data? Our name isn't common and in a small community like this it is obviously us - in this instance the owner knew we were looking but we may not have wanted anyone to know.

The situation is that the owner is taking legal advice from a friend. We have offered to look at the contract and if necessary get it looked at at our own expense, but at the end of the day it is down to our friend as to whether he feels confident enough to risk a lawsuit. I will post the outcome.

In the meantime, I'm fuming about our details being sent out...could I complain? Or even counter-sue?

OP posts:

LIZS · 08/05/2005 15:31

If he has to pay in the end could you afford to split the cost. At the end of the day if they sold via the agent they'd have lost that money anyway, and may still not have got their asking price. Could they give notice to the agent in question but allow you to purchase after it has expired or is it too late if the agent knows already.

Original poster

ionesmum · 08/05/2005 15:49

Hi, LIZS, I was thinking of offering the same thing. I will see what happens onc ehe has spoken to his lawyer. It would be a struggle for us to afford it but we really, really need to move. I think I will also suggest he double-checks the period after which he will no longe rbe regarded as under contract to them once he has given notice. If it is only s few weeks we can wait but if it is months neither of us can.

I'm so bloody angry, they are scuppering this an dhave done nothing at all.

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CarolinaMoon · 08/05/2005 20:32

under the Data Protection Act, the agent needs your consent before they can send you details out. often when you register for that kind of thing (i.e. the email updates) there's an 'I agree to your terms and conditions'-type button on the website, and the terms it refers to will inc something saying you agree to that use of your name etc. However, you can always say you withdraw that consent - I wd def complain anyway, it's a weird practice IMO.

Original poster

ionesmum · 08/05/2005 21:03

I didn't register on-line, I went into their office and the agent wrote down my e-mail address. At no time was I shown any terms and conditions etc.

Who do I complain to?

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