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Estate Agents from Hell- claiming commission


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hi everyone, i'd like to ask your opinion on this case. this is a real case which has just gone through the county court.. although there are alot of other circumstances in my case, the main points are explained. if you need any further info, please ask. thanks.

i signed a sole selling rights agreement with a commercial estate agent to sell my business. the minimum contractual period was 6 months.

My eventual buyer came to me in month 7 through a third party after i had cancelled the contract(in month 5) and after the 6month period had ended.

However the buyer had downloaded details of the business from the agents website during the contractual period (month 2).

But because the asking price at the time was outside of his budget he did not take it any further than downloading the particulars from the webiste.

He did have to register on the website and wait for a pass code from the agents before he could look at the details but he never acted any further.

I the seller never became aware of the fact that he had downloaded details until 1 yr later when the agents asked for their commission. (it had taken another 6 months to complete the sale.)

In the County Court, the judge(to the surprise of all of us including the agents- they were relying on other evidence which we easily disproved) took the view that downloading details from a website was akin to going into an agents office and obtaining particulars.

Therefore in the judges opinion there had been an indirect introduction during the contractual period. and for this i was liable to pay the agents commission of £3500!

What a shock! especially because it was accepted that any further step was not taken until the contract had expired. (i.e when i first had contact with the buyer when he actually approached me!) this was in month 7, just after the agreement had expired.

Neither side had expected the judge to rule on this point. The agents case was that the buyer and myself had tried to avoid paying commission by deliberately delaying instructing solicitors until the agreement had ended.

We easily rebutted this with lots of documentray evidence showing the contrary.

The judge accepted that there had been no conspiracy and that first contact had been made in month 7 after the agreement had expired.

My main contention is how can downloading from a website be an introduction? especially as i was never aware of it. he was not introduced to me.

Is there a deifintion of introduction in this context? and surely there has to be a causal effect of the introduction? is there any case law?

 

(The terms of the sole selling rights part of the contract are ' commission will be payable if :

unconditional contracts for the sale of the property are exchanged

after the expiry of the period during which we have sole selling rights

but to a purchaser who was introduced to you directly or indirectly by us [agent] or anyone else including yourself during that period or

with whom we had negotiations about the property during that period.)'

 

Any advice/opinion would be very much appreciated.

 

P.S

this case was in the small claims court(under £5000) and because i was against a large firm using solicitors and barristers i had to use counsel aswell.

this has cost me heavily, and i know that if i was to appeal it would cost me more than the amount that is being claimed against me! being small claims i would not be able to recover costs, even if i won.

my barrister had not prepared any in depth response to the downloading part of the case( and to be fair neither did the other side) as it was accepted by all concerned that this did occur. but we did not expect the judge to consider that on its own to be enough to make me liable.

 

Thanks in advance

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To be honest, the eventual buyer initially found your property on the EA website and got details from them at that time, and in this case the EA has proof of that. I wouldn't expect an appeal to be successful. Sorry, I'm sure that isn't what you want to hear.

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You instructed the estate agent to market your business and find a suitable buyer. It seems they did this as the buyer found your business as a direct result of their marketing - finding it online is the same as finding it in an estate agents window in that respect. The fact that he contacted you directly instead of going via the estate agent, I think is irrelevant - this was still an "indirect introduction".

Opinions given herein are made informally by myself as a lay-person in good faith based on personal experience. For legal advice you must always consult a registered and insured lawyer.

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hi, thanks for the honest opinions guys

 

can i just say that the buyer didnt come to me as a result of the particulars he got from the website

 

he came to me some 4 months later when the property had been taken off the market, and even then he was only introduced to me by someone who was looking after my business while i was abroad.

 

this person knew my personal circumstances and had mentioned to a friend, who in turn mentioned it to the buyers father that i might sell for a lower price.

 

thats how the deal came about, and we proved in court that this was the first contact the buyer had with me.

 

the frustrating thing about this case is that no-one was disputing the fact that the buyer downloaded the details-

the agents case was based on the conspiracy theory that i had tried to avoid paying commission by doing a deal with the buyer, than taking the property off the market.

but we easily proved that this couldn't have happened with lots of documentary evidence- the judge found in my favour on this point and accepted that first contact did happen after the agreement had ended-

so in this sense i actually WON the case(!)

so then to rule on the one point that we wern't arguing about was a surprise to say the least!

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hello, anyone?

 

See posts #2 and #3

Opinions given herein are made informally by myself as a lay-person in good faith based on personal experience. For legal advice you must always consult a registered and insured lawyer.

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