Looking to cancel agreement with estate agent

[dacascos42]

URGENT HELP NEEDED! I have an estate agency agreement which has been filled in wrong, they have put me down as the owner of the property but I am not. I have been granted probate as executor of a will to sell the property and the estate agent has a specific section in their agreement for such circumstances where they need to put the owners info and obtain my right to sell but did not fill it in or take a copy of the probate. Does this bring the validity of the agreement into question?. Also with regards to Terms and Conditions, should their be a cancellation clause and or cooling off period clause situated within the terms and conditions or can they be anywhere within the agreement?

[Steve__M]

It would be better to start this as a new thread.

 

There is likely no "cooling off period" and no requirement for a cancellation clause. Failure to fill the form in correctly is not likely to void the agreement any more than spelling your name wrong would be, as you *do* have the right to sell the property.

 

I suggest you start a new thread and discuss why you want to cancel the agreement. There may be other grounds or other solutions to your problem.

[honeybee13]

Hello there.

 

I've started a new thread for you, please continue to post here.

 

My best, HB

[dacascos42]

I have cancelled and there was a cooling of period in the agreement but they are being funny. It was cancelled because the service was rubbish, no photographs, sign board when i said I did not want one, misled about viewings and no marketing documents even though I paid for it to start straight away (which I have now noticed was not signed by me to authorise marketing). I have now sold the property but they have claimed that because I have sold it to somebody they introduced I owe them their fee. However it transpires from letters from them that the person who bought it was contacted by the agent and told about the property PRIOR to ANY agreement so they did NOT find the buyer during the time the agency agreement was in force. As the cancellation was done during the cooling off period which is covered under Cancellation Of Contracts in a Consumers Home or Place Of work regulations 2008 then the agreement and terms are terminated as if it never existed.

 

Am i being foolish or is this correct as they have threatened me with court action via a solicitor.

[Steve__M]

Looking around at trading standards advice, it seems they advise estate agents to include a waiver of your rights such that you agree to pay any of their costs should you use the cancellation right. Did your contract include anything like this.

 

If you are concerned about them issuing a legal claim, can you check whether they are a member of a redress scheme. It may be that the complaint could be handled by this scheme.

 

http://www.oft.gov.uk/OFTwork/estate-agents/EARS/;jsessionid=39A18EEB36F400DCABEADB3C1597DF09#.UlZhdte9sgo

 

I don't think that you could prove adequately that the buyer was told before the contract was concluded. The estate agent would presumably easily claim that they simply told the buyer that they were likely to be able to offer viewings of an appropriate house in a particular area. Don't know what difference this makes.

[dacascos42]

There is no mention of waiving rights, quite the opposite, the cooling off period states my right to cancel is NOT affected by instructing them to start marketing straight away.

 

Also I have written conformation from the agent that they did contact and arrange viewings prior to the agreement being signed which was also stated when they came to the initial meeting.

 

I do see from some regulations that if work commences straight away then services should be paid for which at the time of the contract was the marketing however my signature is NOT on the marketing section of the agreement allow them to proceed with marketing.

 

Upon reading the code of practice they are signed up to I can prove with documents that they breached several parts of the code which apparently breaches the unfair trading regulations 2008 as well as breaching the cancellation of contacts in a person's home regulations as they have not complied with schedule 4. They have also potentially breached the estate agency act 1979 by not telling me about when my liabilities occur.

 

I can also prove that the information they gave the solicitor is false as I have conflicting documents from their head office. By providing false information which they will rely upon in court to make me pay their fee surly comes under section 2 of the fraud act?

[Steve__M]

I can also prove that the information they gave the solicitor is false as I have conflicting documents from their head office. By providing false information which they will rely upon in court to make me pay their fee surly comes under section 2 of the fraud act?

 

What information?

 

If you agreed a contract, and benefited from their services then it may be that a judge may simply decide that you agreed to their terms, and they may not rely on any information other than the fact that a buyer introduced by them to you went on to buy your property (I don't think you have disputed this).

 

There is a legal concept called quantum meruit that (as I understand it) says that if someone does work in a situation where a contract is unclear or has not been completed, then they are entitled to be paid for that work. Iamnotalawyer though!

[raydetinu]

a verbal agreement can be a contract; looks like they well proceed to court, if so you need to have your defence ready.

[dacascos42]

The issue is the agreement is not filled in correctly, they have broken the code of practice they are signed up to, the buyer was found PRIOR to an agreement so NOT a result of marketing or their actions under an agreement as the buyer was a client of theirs and viewing arranged before ANY paperwork was signed. The agreement was cancelled under the allocated 7 day cooling period, the notice to cancel was not as prescribed by law in the regulations as it was missing information. The agents have admitted to finding the buyer outside of the agreement and I have this documented in several letters and they have a witness statement which I can prove contains false information and possibly fraudulent claims due to my right to cancel as it contradicts their own agreement. They may have also committed fraud by failing to disclose information they are legally obliged to by NOT informing me of liabilities when using another estate agent until the property was sold as if I knew I would never have sold the property as I would have to pay 2 sets of fees.

 

By NOT advising me of ANY liabilities when the agreement was cancelled and were informed of me hiring another agent this breaches the code of practice they are signed up to which also breaches the unfair trading regulations 2008 and the estate agents act 1979 so how with all these regulation breaches they can ask for the money is beyond me. Just because an agreement was entered into it does not bind me to those terms if cancelled within 7 days under cancellation of contracts made at home regulations.

[raydetinu]

Fine if that's your defence then file it if they take you to court, which they are perfectly entitled to do, and let a judge decide!

That's what courts are for to settle different points of view or interpretation.

[dacascos42]

Fine if that's your defence then file it if they take you to court, which they are perfectly entitled to do, and let a judge decide!

That's what courts are for to settle different points of view or interpretation.

 

I presume a judge could not just discount my evidence and relevant regulation breaches and side with them because they introduced the buyer.

[mariner51]

Not sure I am following your argument correctly.

You appear to be complaining that EA introduced a buyer that was on their books before you instructed them to market your property.

This prospect subsequently made an offer for your property and you are trying to avoid EA advertising fees

 

If Ea made prospect aware of your property details then they are marketing it as per instruction.

What fee cost is in dispute?

Was the property also advertised in press/internet?

 

Most sellers would be happy with a quick introduction to a viable prospect buyer

[Steve__M]

There are a lot of things you are not telling us.

 

Did the buyer view your property, and when (relative to the contract being signed and then cancelled)?

You have onlyu just mentioned that you engaged another estate agent. What role did they have in introducing and negotiating with your buyer?

Have you, or are you expecting, to pay fees to your new estate agent?

[raydetinu]

Yes, a judge can do what he feels is appropriate; if he thinks you defence arguments are not valid he will dismiss them, but should tell you why!

[ericsbrother]

I think you are arguing about the wrong estate agent unless the second one you instrucetd arranged the viewings for the buyer, who happend to be on the books of the first one that you cancelled a contract with. When did the buyer view? if it was before you signed up with the second agency then you are not obliged to pay them unless you gave them sole rights and then it will depend on timing.

[dacascos42]

I'll try to explain better, I arranged for an estate agent to sell the property and PRIOR to an agreement being signed the agent found a potential buyer and arranged a viewing. This was done outside of an agreement so they did it of their own accord. They then began to market it as I paid to have it done straight away which in their agreement did NOT affect my right to cancel, however during the cooling off period I had some issues with their conduct, they erected a sale board when my specific instruction was not to have one, they did not take pictures, nor did they produce a marketing brochure but did conduct a viewing which they arranged out of the agreement that produced an offer on day 6 of the 7 day cooling off period. This offer was not accepted as I did not think they deserved to continue with my business and I was cancelling the agreement due to their poor performance and what I found out later complete lies as I paid for work they had no intention of doing. I informed them of my issues and the fact I will be looking at a new agent, at this point when they were made aware of this it was their duty to inform me of possible liabilities which they did not do.

 

After rightly cancelling within the 7 days, the regulations states that if I do this then it is as if the agreement never existed, I waited a week before looking at another agent who I then employed, they marketed the property the next day, producing a brochure within 48 hours and took numerous photo's as expected by an agent. The problems arose when the buyer made an offer through this new agent and the buyer was the one the previous agent had contacted.

 

The sale took 3 months and in this time I was NOT made aware of the liability of fees to the old agent even though I was emailing them asking for an investigation into their conduct, it was not until the day of exchange the old agent demanded fees when the property legally changed hands trying to force me to pay them.I complained to the TPOS who they are a member of but they did not investigate correctly as I have received documents which prove the agent lied to the TPOS (does not surprise me they did not investigate as the agents PAY the TPOS an annual fee and this specific agent pays them £255k per year) even when I gave the TPOS proof of the breaches of code of practice they said they would not look at it. I have subsequently found out that they purposefully withheld the fee liability from me for 3 months which is against numerous regulations and the code of practice. I also found out that the agreement itself is not completed correctly and breaks several regulations most importantly the notice of right to cancel as it does not conform to the rules.

 

I have now received a witness statement they will be using in court and the witness states that the agreement was not cancelled during the cooling off period because I waived my right as I got the marketing commenced straight away. This however is a lie as their own agreement states the right to cancel was not affected by commencing work straight away so he lied in a witness statement. He also lied when he said that the cancellation of contracts at home etc regulation 2008 did not apply because they started marketing straight away. The regulations state if I cancel during the cooling off period but have services done during that period I only pay reasonable costs for services in that period which was the marketing fee. He also lied when he said they did not need to inform me of the fee liability as this is a breach of the estate agency act 1979 and the code of practice they sign up to as it states that as soon as i cancel the agreement they have to, in writing, inform me they no longer are agent and must state any fee liability that may be due which they were aware of when I cancelled.

 

My issue is that the agent broke the law, lied about their service, ignored instructions, did not comply with the code of practice, breached numerous regulations, did not do their job to a satisfactory standard and has the cheek to chase for a fee that they are not legally entitled to.

 

Am I wrong to stand up for the rights given to me under the law against a company who broke numerous regulations?

[Steve__M]

Am I wrong to stand up for the rights given to me under the law against a company who broke numerous regulations?

 

Not at all. It's an interesting tale, and not all the facts were available at the start, which has led people to sympathise with the agent!

 

This offer was not accepted as I did not think they deserved to continue with my business...

 

Was the offer you rejected much worse than the offer you finally accepted?

 

I would worry that failure to follow guidance (i.e. informing you of your liabilities) would not count as a failure as it is only guidance and not law. A judge may conclude that you knew full well that you had a *potential* obligation to the original agent.

 

Have they issued a court claim? Or are they still in the process of issuing threatening letters?

[dacascos42]

The offer was the same amount as I was thinking about whether or not to accept but their actions led to mistrust in the agent.

 

The Estate Agents Act 1979 states all liabilities should be given to the client, also by not following the code of practice this in turn goes against the Unfair Trading Regulations 2008 which states if they advertise the fact they abide by a code of practice then if they fail to adhere to its rules then they are in breach of the regulation. The code does have some guidance however there are certain MUST points in the code which as a member you have to follow, this includes informing clients of potential liabilities when an agreement is cancelled.

 

The problem was when I cancelled the agreement within the 7 days they did not inform me of potential liabilities nor did i receive a letter confirming they were no longer acting as agent which is another MUST in the code of practice so at that point I did not know of any liability. As far I was aware the agreement was cancelled as per the Cancellation of contracts in a consumers home etc regulation 2008 which state if the agreement is cancelled within the 7 day period it will be as if it never existed.

 

They even told me the only liability I would face if I cancelled within the 7 days was the marketing fee and noting else, even though they knew at the time they had already arranged a viewing with a potential buyer outside of the agreement.

[Steve__M]

Couple of things.

1. If the contract was cancelled, then the agent may not be obliged to inform you of anything.

 

2. Presumably the potential liabilities were referenced in the contract (that you would be liable should a potential buyer introduced by them buy the property at a later date).

 

Also, I only had a quick look at the Act, and the Act seemed to give the judge the right to use his judgement. But I may be looking at the wrong bit:

 

18.6(a) the court shall dismiss the application if, but only if, it considers it just to do so having regard to prejudice caused to the client by the agent’s failure to comply with his obligation and the degree of culpability for the failure; and

Has the agent issued a court claim?

[dacascos42]

I have heard about the case in Watford County Court with regards to the notice of cancellation, does any body know who the parties involved were and where I can find a transcript of the case?