An agent’s attempt to claim a fee from a home seller has been rejected by the Ombudsman.
The sellers, a professional couple, had instructed two agents.
Both carried out viewings – although the sellers said that they had no idea that the eventual buyers had even viewed the property through one of them.
The sellers say they received the claim from Countrywide brand Taylors 18 months after accepting an offer through the other agent, Barton Fleming, which carried out the first viewing.
The case has now been adjudicated by the Property Ombudsman, which has found in favour of Barton Fleming.
Speaking to EYE, the couple say they had instructed both Taylors and Barton Fleming to market their home in Oxfordshire.
The eventual buyers viewed the property through Barton Fleming and then, some days later and unknown to the sellers, through Taylors.
The buyers then made their offer through Barton Fleming.
The sellers said they only found out much later that there had been a second viewing by the eventual buyers, through Taylors: “We had no feedback from Taylors as to viewings.”
The sellers accepted the offer via Barton Fleming in October 2017 and the sale went through without, they say, any dealings with the other agent. The sale completed in February 2018.
In April this year, they were shocked to receive a letter suggesting that they might be taken to court over Taylors’ claim for commission. They say this put them under considerable stress.
The couple decided to refer their case to TPO, whose new report says: “Having examined Taylors’ file, I am satisfied that the arrangement for the buyer to view the property was first made through Barton Fleming and that the buyer first viewed the property through BF.
“As such it was entirely appropriate for BF to handle the negotiation process and to oversee the sale from that point.
“Payment of BF’s commission was appropriate – BF were the agent to introduce the buyer, they arranged a viewing for the buyer and conducted that viewing before such was arranged through Taylors Estate Agents.”
The sellers say that TPO has ordered Taylors to pay them £250 plus issue an apology.
A spokesperson for Taylors said: “As members of The Property Ombudsman, Taylors acknowledge their findings and will act upon their recommendations accordingly.”
In March this year, TPO issued new guidance on dual fees. It said that the agent who “effectively introduced the buyer should be the agent who is entitled to the fee.
“An effective introduction must evidence that the agent carried out an act that initiated the buyer’s reaction to the property.
“As such, there is a need for a defined transaction event to occur.
“It is TPO’s view that this can be mostly clearly evidence by an agent carrying out a viewing.”
At this year’s TPO conference, 80% of agents in the sales workshop said they had been involved in a dispute over dual fees.
The whole matter has been highly contentious, and as recently as last year a court came to a very different conclusion to TPO which at that time was saying a viewing was not necessary.
In this latest case, the dispute arose after both sets of agents carried out viewings, and appears to underline the need for agents to both feed back and progress matters after a viewing – which may, on its own, not be enough.
Ombudsman stands by fees ruling even though court decision is complete opposite
Back to basics working well then….. the new COO from Tesco will fix it!
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Countrywide need to examine their breach of contract process if they are allowing claims to proceed when the agreement is a multi and no evidence of feedback provided. All it will serve to do is ruin reputation and loose future listings.
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Picked up by a third party scrape of the Land Registry transactions which CWD are known to carry out on all withdrawals ( cheating vendors ) and sometimes you get a hit as I guess happened here. But who on earth then took the decision to go after the vendors with no viewing feedback on record ( Reapit ) and importantly the Branch in question must have known they had viewed through the other agent first. A case they were never going to win and more bad publicity to boot.
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Clearly this was a multi agency agreement and there is already a high court ruling from some years back that only the agent that is instrumental in the sale of the property is entitled to the commission. Making a viewing in its own right, was ruled as not instrumental where multi agency is concerned. Next time they should get a signed “Joint Agency Agreement” if they want to share commission.
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I will never understand why TPO goes in a different direction to English Law. There is actual case law where a judge ruled that for an agent to lay claim to commission “they must be instrumental in the negotiaition of offers or offers”. Simply booking a viewing, doing it and then saying the buyers liked it is wishy-washy at best. It looks like BF did, in fact, negotiate the offers and sale and would therefore be entitled to their commission.
I have had to use the case law on 3 occasions in the last 10 years and on each occasion it has come out in my favour. The sooner agents realise that they actually have to work for their commission the better.
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Did they now? The TPO came out in favour of the agent who made the first viewing and handled the offer through to completion. The TPO didn’t go in the opposite direction to English Law. The TPO told Taylors to pay compensation and an apology to the sellers for trying it on!
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Whoever within Taylors decided to go after this needs their head examined. Never had a hope of getting it and made their company look stupid and greedy.
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The agent that successfully negotiates the deal…gets the comm, simple! not the sellers issue to deal with – too many incompetent agents cant close the deal
Coming from a v.recent vendors perspective!!
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This would have been a head office process, noone would have made a decision to pursue this particular case for obvious reasons, not even those at CW who seem to attract so much negative press about their abilities. Every 6 or 12 months an administrator will compare a scrape from all the newly registered titles on any property they used to have on the market. They would then sort that through excel with data on who viewed those properties. If there is a match, the automated pay up or Court letter goes in the post.
This process is fine in isolation, but not complete, so what should then have happened is a couple of things before any letters are sent, if at all. Firstly, each case should have been reviewed by a Director to see if there was any merit in any of the cases, where the business may have introduced a buyer and not been given the credit and been paid. It happens from time to time, where agents try and turn over another agent’s buyer. Once the cases like this one were weeded out as ones they had no case to pursue, the same Director should then call each of their old vendors and discuss the circumstances of the case to try and establish whether Taylors did actually rightfully introduce the buyer and whether they should pursue it further. Considerations might also be given to whether that old vendor is still a local person/landlord etc and what impact it could have on their future relationship. Only when it is clear to that Director that they have a genuine case for a claim to a fee, their diplomatic approaches have been rejected, negotiations failed, should any letter be sent and claim made.
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……and that’ll be the main reason why Multi Agency Contracts are scarce in Scotland (High End occasionally where the usual suspects want the local agent to do the donkey work).
I have zero interest in working with a vendor who is hedging their bets, nor playing against another agent.
CWD should have had a watertight co-agreement with the other agent if they agreed the supermarket sweep approach to selling.
Desperation/grasping for a fee – embarrassing!
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Never understood why an agent would want to do a multi-agency agreement where winner takes all. Only one winner and the other(s) are loosers! Joint agency agreement ensures both get paid for work done, with the majority of the fee going to the winner and the vendor is left in no doubt of what they are liable to.
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“The case has now been adjudicated by the Property Ombudsman, which has found in favour of Barton Fleming.”
Erm… am I missing something here?
Surely the Ombudsman found in favour of the customer here, not of an Agent?
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Joint agency agreement is the way forward where both get paid, with the majority of the fee going to the winner. 60% – 40% we joint agents with only one other agent on this basis we also share Portal costs where we are OTM and Z and other agent is RM. Seller get full exposure and the attention of two agent doing there very best to sell their property.
Joint agencies and shared portal costs! It’s the future
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HIT MAN….
Quoting you…. “ Seller get full exposure and the attention of two agent doing there very best to sell their property.”
Are you for real?
2 Agents doing their very best?
I must be superhuman then being just the 1 Estate Agent doing my very best for my clients.
Bonkers? …….2 Agents doing their very best?
I’ll have 2 Dentists, Surgeons …….Oh, and that 5 bladed razor….. it give me the very, very best shave ……so, 5 Estate Agents then?
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The buyers should pay the second agent’s (CW’s) fee. It was the buyer who, presumably, “forgot” to tell the second agent that they had already viewed the property through Barton Fleming. Therefore, the buyers should be responsible for covering their fees and eventual costs! Unfortunately, buyers believing that they could get an advantage (it worked in this case), by misleading the agents, is all too common and it will carry on, so long as there are no repercussions.
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