Possible Estate Agent Issue Bairstow Eves..Court Claim received.

[tony3x]

Friend of mine put his house up for sale with Bairstow Eves after they promised him they had plenty of people on their books looking for properties like his - Ha!

 

He did receive a couple of offers early on but these were declined as too low.

 

He then accepted an offer but the buyer pulled out due to not liking something on a Homebuyers Report. No other offers were received.

 

After the 3 month contract was up he gave notice then put the property up for sale with another agent. Not long after this the person that put the original (declined) offers in came back. The buyer was told to go through the agent the property was now for sale with. Offer was accepted and sale completed.

 

A letter has now been received quoting parts of the contract that was apparently signed saying that Bairstow Eves could be entitled to commission - letter attached.

 

Has anyone come across this before. My friend done what he though was right by telling the buyer to go through his agent, he was not aware of the terms that said that the original agent could also be entitled to commission.

[steampowered]

Hello - do you have a copy of the full T&Cs?

[tony3x]

He is trying to find them but he threw a lot of stuff out when he moved as did not think he needed it. May have to ask them for a copy of the signed contract.

[honeybee13]

Hello there.

 

I have come across the before. We sold a house this year and changed agents.

 

Luckily for us, we had no intention of selling to the buyer who messed us about through the first agents, agent A. But they did write to us and say that if we sold to the buyer they introduced to us to, even if it was via the new agents, agent B, agent A would still expect their commission.

 

We checked their Ts and Cs and it was in there.

 

HB

[ericsbrother]

generally when you sign up with an estate agent the contract says for a sole agency that you are with them for a certain period of time and if they dont sell you can go elsewhere. the problem you have has arisen because they are claiming it was their work that introduced the buyer and despite them now being no longer your agent the person who bought the house ONLY did so because they introduced him to the property.

What you eed to knock this on the head is proof that for at least a day between them being given the heave-ho and you employing the new agants your house wasnt for sale. Your purchaser m,ay be able to help you out a bit here by writing you a letter stating that he only reconsidered the possible purchase after he saw it up for sale with the new agents thus creating a break in the flow of the transaction. Without that it looks just like offer-counteroffer-acceptance and the old EA's have a point.

[tony3x]

EB, your scenario is pretty much how it happened. He had a purchase that fell through, decided to change agents as BE's were so poor ie he had to do all the chasing, they did not return calls etc. When the new board went up the people that ended up buying it see that it was still for sale and increased the offer they had made previously (with the original agent).

 

I wonder what the possible ramifications could be. He has MS so does not work and has no mortgage on his current property. The car is mobility so doesn't own that.

[tony3x]

Sorry for the delay in getting back.

 

 

New letter now received.

 

 

Bit of a threat-o-gram.

 

 

My friend cannot find his copy of the signed contract

- think he may have thrown it away when he moved as thought no longer needed.

 

 

Id it time to see what paperwork they have got by asking for a copy of the signed contract.

 

Sorry the attachments are not in page order

[steampowered]

An appropriate response would be a letter along the following lines:

 

- The claim for commission is not recognised.

- Their letter does not comply with the requirements of the Practice Direction on Pre-Action Conduct, which is inexcusable for a professional debt collection agency - not least because insufficient time has been provided for a response. Court rules provide for 14 days.

- Ask them to provide a complete, signed copy of the terms and conditions which Bairstow Eves allege entitles them to commission in order to enable the recipient to consider the request being made. Note disclosure of key documents prior to issuing a claim is required by the Practice Direction on Pre-Action Conduct and the court's attention will be drawn to non-compliance if a claim is issued without providing those key documents.

 

If your friend agreed to T&Cs as suggested in the letter, he may well be liable for the commission. The T&Cs do seem clear that a purchase by a buyer introduced by them entitles them to commission. This would put your friend in the awkward position of having to pay commission to Bairstow Eves (because they introduced the buyer) and also to the other agent (because contracts were exchanged during their period of agency).

 

However, only Bairstow could make the decision to initiate a claim and it would be up to them to prove their case - if they can't provide a copy of the signed T&Cs, that might be a get out.

[ericsbrother]

so, how did the buyer get round to making an improved offer, did he go to the new estate agents or directly to the friend? If the latter he would be better off just paying up as he is under the original contract. If however he saw the new board and then dicided to try again, even if by knocking on the door, then that is nothing to do with the old EA's.

Your friend will have to demonstrate that there was a break in the chain of events and a statement from the buyer on the lines that he saw the new board will suffice. Make sure that nowhere does the buyer say that he increased his offer, rather that he started all over again by making an offer and that was accepted.

[tony3x]

The actual buyer knocked on the door after seeing the new sign as they thought the property had been sold. They were then told to go through the new agent. Technically they were introduced by BE but they had offers declined as they were too low. When the contract ended the notice period was given and a new agent was appointed. To be honest my friend says he didn't remember the buyer at first, it was only a bit further down the line it clicked. He has MS and struggles with his memory on occasions (to be fair its never been brilliant). He thought he was doing the right thing by sending the buyer via the new agent as was not aware of the clause in the contract.

 

I think it may be worth a letter to see if they have a copy of the signed contract. I also think that a clause that has could affect the amount of commission paid is material and should be pointed out at outset.

[tony3x]

Was going top get this sent to the company to see what they have;

 

With reference to your letter of 20th June I must apologise for not contacting you earlier. I suffer from MS and are not always able to deal with things immediately, and have also been looking after my elderly mother which has taken up much of my time.

 

I have read your ‘Particulars of Claim’ but as I do not have a copy of the contract I am unable to comment. As such could you please forward a copy of the signed contract. I am unable to comment further until I have received this.

 

Any comments

[steampowered]

Looks fine to me

[tony3x]

thx

[tony3x]

sinclare 4.pdfJust received these. He is adamant that he only originally received the 1st 2 pages however it was 18mths ago so can't be sure.

[steampowered]

Its a bit difficult to read those uploads, but it looks like a 2-page covering document which refers to a set of attached T&Cs, and the T&Cs do appear to have the conditions referred to in their letter.

 

Does the document have his signature on it?

[tony3x]

Signatures on the second page only, not on the T&C's. I will see if I can upload better copies.

[tony3x]

These may be better copies

[tony3x]

Update for this.

Friend has received court papers from BE's solicitor - I have not seen these yet, hope to do over the weekend.

 

He went to see a solicitor through CAB for a free 15 min consultation and the solicitor thinks he has a good chance to defend.

 

I am assuming that he will be able to submit his intend to defend online and then go from there.

 

Thx

[AndyOrch]

Thread moved to General Legal Issues in view of the court claim received.

 

Regards

 

Andy

[Homer67]

Does your friend have legal cover within his house insurance? Could be worth asking for some legal support. I must say this seems like sour grapes on behalf of BE who are one of the worst Estate Agents in my experience. Personally I would be advising them that the property was withdrawn from sale for 24 hours after you gave them notice and then put on with another seller, the purchaser then made a new inquiry through the new agent so they have no claim and that you will explain the same in court should they wish to waste their money. The fact you have gone through another Estate Agent is in your favour, if you sold to the original person who offered without a new Agent being approached by the buyer BE's claim may have had some grounds.

[steampowered]

The next step will be to acknowledge service, and then file a defence.

 

It is important for the defence to be clear and correct. Your friend can come here and seek help with what should go in the defence if he wishes. I think we would need to know exactly what the particulars of claim says to provide clear help on what should go in the defence.

[tony3x]

Thanks for the advice thus far. I am hoping to see him over the weekend so will be able to see whats what and get some things scanned on.

[tony3x]

Acknowledgement of Service has been done. Now for the defence. I have attached the POC.

 

Some further info -

18/04 - Email to BE on point out very little interest so want to go multi agency. Reply same day to say BE will call on the 20/04.

 

16/05 - email to tell BE that an offer has been accepted for the onward purchase. No reply

 

10/06 - Email to confirm 2 week notice period

25/06 - Email to confirm end of 2 week notice period so contract now finished.

 

This was when there was a change of agency. The purchasers, who thought the property had been sold, then see the new board and contacted the new estate agents.

 

The CAB solicitor thought the 6 month term in para E (iii) was unfair and has suggested putting this in the defence.

POC.pdf

[steampowered]

Presumably the house was sold within six months after the buyer approached the estate agent? If so, on the face of it, it looks like the sale does trigger a fee under the wording of their T&Cs. So I think you are left with two arguments to defend this:

 

1) Claiming that the T&Cs never formed part of the contract, because they were never provided. As your friend is adamant he never received the T&Cs I think that is something that should be mentioned in the defence. You could also mention that extra care needs to be drawn to particularly onerous contract terms, and if this was not done/the commission terms were never explained, they should not form part of the contract.

 

2) Claiming that the term which makes him liable for payment of commission for 6 months (or 24 months if another estate agent has not been appointed) is unenforceable as an unfair term under The Unfair Terms in Consumer Contracts Regulations 1999. See http://www.legislation.gov.uk/uksi/1999/2083/regulation/5/made.

 

Feel free to post up a draft of the proposed defence on here if you would like help with it.

 

Alongside a defence it is also possible to make a settlement offer (this would not prejudice your ability to defend the case if the settlement offer is rejected, as settlement offers cannot be used as evidence).

[tony3x]

Thanks for your advice. I will get on it. Settlement offer probably out of the question due to lack of funds. He is an MS sufferer and is on benefits so spare monies are pretty much non existent.