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Can my old agent claim their fee if I have not signed their contract?

I instructed a local independent agent to sell my property and had one very badly organised viewing from them. I had to chase them for feedback and decided I would not use them. I had their contract but did not sign it. I instructed another agent who the original viewer came back to me through also complaining about the service of the original agent. He offered via my new agent and the agent processed the sale to completion. The original agent is now claiming their fee although I never signed their contract and my current agent has quoted to me the "Foxtons v Bicknell" case to use against them. Where do I stand? I do not want to give the original agent anything as they did not do anything they said and I never signed their contract.

Asked on Nov 15 2010, Selling in Marlow | Report content

Answers (10)

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  • I think you should seek legal advice immediately. You may find that a court would rule estoppel against you, and that the other agent MAY win. Contracts can be spoken, written, or a mixture of the two. The fact that you had a copy of their contract, and allowed them to arrange/conduct viewings may go in their favour.

    Answered on Nov 16 2010, Report content
  • You could make a complaint about their conduct and the fact that you never signed any contract with them, yet they still want their fee. Read through this contract very carefully before you do anything, or get a solicitor to read through it.

    Web reference: http://www.direct.gov.uk/en/HomeAndCommunity/BuyingAndSel...

    Answered on Nov 16 2010, Report content
  • The above answer is correct, under the 1979 Estate Agents act a seller must have seen a copy of the terms in writing prior to the commencement of marketing, the reason agents ask you to sign them is to prove you have seen a copy. A lot will depend on the time scales between the viewings between the first and the second agent, in the Foxton v Bicknell case the first viewing was in July and the viewer only looked at the ground floor another agent then re introduced them several months later and proved they introduced the buyer to the concept of the purchase rather than just the house. If the buyer agrees that they only decided to buy the house because of the actions of the 2nd Agent you may stand a chance, but seek legal advice ASAP

    Answered on Nov 16 2010, Report content
  • Mark's answer is correct it is governed under the Estate Agents act 1979, and part of that is a clearly defined and signed contractual obligation. My understanding is that the onus would be on the agent to prove 'effective introduction' but by not having formally entered into an agreement with you this would be undermined. I would however speak to a solicitor.

    Answered on Nov 17 2010, Report content
  • Thank you all very much for your replies, they have been very helpful. I have spoken to a friend who is a solicitor who has advised me to check the contract for "7 day cooling off period" section that must be on all Estate Agents contracts. I have checked the original contract from cover to cover and there is no reference to my right to cancel, he thinks this will make the contract invalid if I signed it or not. Is this true?

    Answered on Nov 17 2010, Report content
  • The Estate Agent Act does indeed specify that a copy of the agency contract should be provided to the client after signature. However just because it has not been provided does not necessarily render the contract invalid. It may simply mean that the agent has breached the Estate Agents Act but that would be a separate issue to your contractual obligations which may still apply. However, if you can demonstrate on the balance of probablity to a judge (should matters proceed that far) that the first agent simply arranged the viewing and that the second agent did the work in establishing the purchase' then you may win the day. each case is different and falls on its invdividual peculiarities though. Whilst the principle of Foxton Bicknell will apply here in case law terms, it will only hold good if the circumstances are very similar and, importantly, also rests on the exact wording of the first agent's contract. If it states that their fee is due 'upon the successful introduction of a PURCHASER that proceeds to an exchange of contracts' then you're probably ok. You shoudl encourage agent 2 to have a discussion with agent 1 and offer them, say, 25% of the fee to back off. If you were to go to court and it happens to be a 'small claim' of £5000 or less then even the winner is unlikely to be able to claim legal represenation's costs back from the other side.

    Answered on Nov 18 2010, Report content
  • Firstly, your agent should not actively start marketing your house, unless a) they have a signed contract or b) they have a signed your "Notice of Right to Cancel". and waivered their "Cooling off period". It is my belief that the esate agents contract would be invalid, if you have not done either of the above as they had not adhered to the "Unfair Terms in Consumer Contracts Regulations 1999". I would suggest you seek guidance from your local tradng standards officer..rather than a solicitor. If you have signed a contract and the contract conforms with "Unfair Terms in Consumer Contracts Regulations 1999".then i would believe that the first agent would be intitled to their fee, irrespective of how poor there service was. An estate agency contracts, sets out the terms for selling your house...not how good their service will be.

    Answered on Nov 18 2010, Report content
  • Regarding the '7 day cooling off' issue, the The Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 do not cover contracts relating to property. It may be that, technically, signing an estate agent's contract (or not in your case) is not a property transaction as such but I don't think its been tested in court yet and without any precedent on this it's dangerous to assume that the regulation will help you.

    Answered on Nov 18 2010, Report content
  • I was involved with Leicestersire Trading Standards with regards to HIP and Pre-HIPmarketing, at this time I asked Trading Standards Officers to check over our Agency Agreements, as although we do have "Cooling off period" on our contracts, the way we had it set out...it was not highlighted in a separate box nor had a border around the text...... it would invalidate our contract and if a client was to take us to court the would win. Thats why I would suggest you speak to your local Trading Standards Officer.

    Answered on Nov 18 2010, Report content
  • How long was it between the agent leaving their terms of business, to arranging the viewing and then undertaking the viewing. Secondly how long was it after this that the property actually exchanged. Dependent on your answers the agents own contract may invalidate their claim. I agree you should speak to trading standards with those answers to hand.

    Answered on Nov 18 2010, Report content

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