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Here is post i posted over one year ago and a post on PAINSMITH'S SOLICITOR's blog. To my mind this is the first court decision made under these regulations. "ESTATE AGENTS BE WARNED CANCELLATION NOTICE REQUIRED"
"Yes it is a contract law matter. For this contract to be legally enforceable you must have been given a NOTICE OF RIGHT TO CANCEL IN THE PRESCRIBED FORM contained in the written contract.
Failure to provide this mandatory written notice render's the contract unenforceable in law.
The relavent legistration is The Cancellation Of Contracts Made In A Consummers Home Or PLace Of Work Ect, Regulations 2008 SI 2008 NO.1861
I am of course replying to your post on the understanding that you were not given a cancellation notice--------- I have yet to see an Estate Agents marketing contract that complied with the law."
In a recent case in Watford county court an agent sought his commission for the successful sale of a property in October 2009.
The Defendant defended the claim on the basis that no Cancellation
Notice in the prescribed form pursuant to the Cancellation of Contracts in a Consumer’s home or Place of Work etc Regulations 2008 had been served.
In response to this defence the agent was relying on schedule 3 of the Regulations which excludes certain contracts from the Regulations. One such contract is for the sale or rental of immovable property.
However, the court held that the contract entered into by the parties was not a contract for the sale or rental of immovable property but one of marketing and as such schedule 3 did not apply.
The court also held that this was a commission contract and therefore caught by the Regulations. Therefore where no Cancellation Notice had been provided then pursuant to clause 7(6) the contract is unenforceable.
The agent’s case was dismissed.
Thank you to Mr Kennedy who brought this case to our attention.
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Cagger since : Jun 2014
Posts : 4 (0.00 post per day)
Re: "estate agent be warned" !!!
Hello. I have been searching the internet for days to try and find a case result such as this one. Would this apply to the dreaded 'Business Transfer Agents' ? Thank you
Cagger since : Nov 2009
Posts : 43,276 (13.32 post per day)
Re: "estate agent be warned" !!!
Originally Posted by MarkLewis1972
Hello. I have been searching the internet for days to try and find a case result such as this one. Would this apply to the dreaded 'Business Transfer Agents' ? Thank you
Basic Account Holder Do you record your calls? You'll regret it if you don't.
Cagger since : Jun 2014
Posts : 4 (0.00 post per day)
Re: "estate agent be warned" !!!
Hello Honey bee.
We signed a contract with a 'Business transfer agent' a few years ago.
It was to sell a Guest House.
We paid £600 upfront.
No success so we terminated the contract with them.
Shortly after the contract had terminated, we were able to sell it ourselves.
Out of the blue, nearly 18 months we have received an invoice for £6k from the business transfer agent
as they say they were still contracted to be 'sole agents' as the sale of the property went through so soon after the contract terminated.
Regardless of this, Watford county court appear to have set a precedence with the above ruling.
The internet is littered with complaints about these types of businesses sending out invoices once the property is sold
or demanding the 'withdrawal fee' of anything from £600 upwards.
We at least had the £995+VAT excluded from our contract.
Even though these types of businesses do not seem to do a great deal
but still send out the invoices even when they did not sell the property.
We were told there would be no cooling off period as it was a 'business to business' transaction which was signed in our own home.
Interpret what the above ruling says it could be applied to 'business to business' ?
Cagger since : Dec 2007
Posts : 72,624 (18.31 post per day)
Re: "estate agent be warned" !!!
What did your contract say about cancelling and if there was any bleed off period where, after cancelling, the agent would still be entitled to commission. Or was there no cancellation clause at all ?
If you signed it at home (away from the agents business premise) then Cancellation rights apply.. dont they ?
There seems to be quite a bit of information on google regarding the right to cancel.
Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.
PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE
Basic Account Holder Do you record your calls? You'll regret it if you don't.
Cagger since : Jun 2014
Posts : 4 (0.00 post per day)
Re: "estate agent be warned" !!!
Hello again Everyone. Thank you for your feedback. To try and answer everyone in one go -
"Just thinking out loud. If you sold it yourself, doesn't that make him still the 'sole agent' as you aren't an agent but the owner."
The contract says 'sole selling rights' (including ourselves not trying to sell it).
"If you signed it at home (away from the agents business premise) then Cancellation rights apply.. dont they ?"
It is a grey area depending on how you read the law.
"What did your contract say about cancelling and if there was any bleed off period where, after cancelling, the agent would still be entitled to commission. Or was there no cancellation clause at all ? "
We cancelled the contract with them as per the agreement. Can't say anymore than that.
"Watford county court can't set a precedence"
Thank you for clarifying. Will keep searching and hope the thought of the bad publicity it will generate for the BTA will be enough for them to eventually back down. We do have a solicitor working on our behalf.
If your case is the same or very similar, there is nothing to stop you using the same arguments and law as the individual in that case won. But you couldn't use that as a 'precedent' in your case. Best thing might be to get a copy of the Judgement and take a closer look.
'"Watford county court can't set a precedence"
Thank you for clarifying. Will keep searching and hope the thought of the bad publicity it will generate for the BTA will be enough for them to eventually back down. We do have a solicitor working on our behalf.'
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Basic Account Holder Do you record your calls? You'll regret it if you don't.
Cagger since : Jun 2014
Posts : 4 (0.00 post per day)
Re: issue with 'Business transfer agent'
"If your case is the same or very similar, there is nothing to stop you using the same arguments and law as the individual in that case won. But you couldn't use that as a 'precedent' in your case. Best thing might be to get a copy of the Judgement and take a closer look."
Thank you. Do you know how I can get hold of the details of this judgement? Thanks in advance.
You could contact Watford county court, you only have the year to go by, so won't be easy.
Originally Posted by MarkLewis1972
"If your case is the same or very similar, there is nothing to stop you using the same arguments and law as the individual in that case won. But you couldn't use that as a 'precedent' in your case. Best thing might be to get a copy of the Judgement and take a closer look."
Thank you. Do you know how I can get hold of the details of this judgement? Thanks in advance.
Welcome to Consumer Action Group
'Challenges are what makes life interesting; overcoming them is what makes life meaningful.' Joshua J. Marine
issue with 'Business transfer agent'
.
an agent sought his commission for the successful sale of a property in October 2009.
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Originally Posted by MarkLewis1972
