Case Summaries
This is an example of Cases closed this year, this list will be updated on a monthly basis.
July 2008
1. The Complainant was a potential Buyer. Having had an offer accepted, the Complainant ascertained, through her solicitor, that the windows in the lounge of the flat in the new development, would be obscured glass. Considering this to be unsatisfactory, the Complainant withdrew, having incurred, approximately £800 of legal and mortgage fees. She considered that the Agent should have informed her of the position. The Agent advised that it had always been the intention to have the windows obscurely glazed but the Seller was in dispute with the local authority to try to remove this requirement. I considered that the Agent had been on notice about this issue and as such had an obligation to treat a potential Buyer fairly and hence to advise the Complainant of the same to allow her to make an informed choice, before she made an offer. I supported this element of the complaint.
The Complainant also referred to the Property Particulars which specifically stated that a washing machine would be included in the kitchen. During a second viewing the branch representative informed her that the Seller had decided not to put the washing machine in the kitchen as there was not enough room, but would put it in the airing cupboard. The Complainant considered that this was unsatisfactory. During the complaints' correspondence, the Agent offered to put the machine in the kitchen if the Complainant insisted. Although critical of the Agent for failing to ensure the accuracy of the Property Particulars, I considered that this was an adequate response and the complaint was not supported.
I made an award of £805 to reimburse the Complainant for the costs incurred on the abortive purchase.
2. This was an unfortunate situation for the Complainants to find themselves in the middle of a marital dispute, which appeared to have gone on for many years. The Complainants had found a Buyer for their property and thought they found a property which suited their purposes, was vacant and could therefore complete quickly. However, 3 weeks before they completed on their property their solicitors informed the Complainants that the Property was in the sole name of the Seller but had a marital clause attached to the Property that, in their opinion, would not hold up the sale. According to the Agent they were not aware of this until 4 days before the agreed completion date when the Seller's solicitor informed them that the Seller's ex-wife refused to sign the necessary paperwork for the sale to complete.
The Complaint was that the Agent marketed the Property knowing that the Seller's ex partner had informed them that she would not allow the sale of the Property in February, which was months before they first registered their interest. The Complainants have produced a letter from the Seller's ex-wife to say that she had informed the Agent in February, but then the letter also stated that when she went into the Branch in late May, after the Complainants had made an offer, the Branch had not realised that there was a Mrs 'Seller'. According to the Agent Mrs Seller did not indicate that she would stop the sale or cause any problems. However, after this visit the Agent made contact with the Seller and the Seller's solicitor who both confirmed that the Seller was the sole owner of the Property and that they had been separated for 9 years.
Given the information that was presented to me I was unable to support the complaint as the Seller was the legal owner of the Property and that a marital clause put on a property is not intended to stop a sale of a property. Also the Complainants were aware of the existence of the marital clause before the Agent and their own solicitors advised them that this should not delay or cause problems with the sale of the Property.
I also noted that according to the Complainants the Agent were still marketing the Property and that it is their belief that the marital clause is still in existence. I pointed out to the Complainants that it would not be in the Agent s interest to market a property if they did not believe it could be sold. However, I reminded the Agent, given the history of the Property which they now have full knowledge of that they have a Duty of Care to any potential Buyers interested in the Property which may mean disclosing that the Seller's ex-wife is a neighbour and that there is a marital clause on the Property. I made no Award.
3. The Buyer Complainants moved into the Property and claimed to have discovered a number of deficiencies associated with the bathroom, kitchen appliances and plumbing. The Complainants stated that the Agent misrepresented the Property as it had been described as subject of recent modernisation and extremely well presented. The Complainants however produced no evidence to support the claim that they had to replace the existing bathroom and have the kitchen plumbing repaired. Prior to the purchase the Complainants had the Property surveyed but, despite a request from the Agent, failed to produce the Surveyor's Report. The Agent however secured a Survey Report on the Property which had been completed by the same surveyor some 7 weeks previously, on behalf of a potential Buyer who had withdrawn from the purchase due to circumstances unrelated to the survey. This survey contained no evidence to support the fact that the bathroom was in need of further attention or replacement or there was any problem associated with the kitchen plumbing. In view of the fact that a qualified chartered surveyor has not detected any deficiencies as claimed by the Complainants, I took the view that it was unreasonable to suggest that an Estate Agent should be in a position to distinguish any such defects. Furthermore, the Agent was aware that the survey report previously commissioned by the potential Buyer had not raised any major areas of concern and I therefore considered that the Agent had the right to rely on this information in their recommendation of the Property to the Complainants. I did not support this complaint.
4. The Complainant was a Seller. He brought a number of complaints as to the way in which the Agent managed his sale. The property had been valued at £260,000 to £270,000, and an initial asking price of £264,950 agreed upon. After two market reviews, and reductions, as many viewers had commented upon how much work the property required, the Complainant accepted an offer of £207,500. He considered that the market appraisal was not conducted in a professional manner. The agent had provided a number of comparables, an independent surveyor had valued the property at £250,000 and the Complainant had rejected a previous offer of £230,000. There was no evidence that the property had been overvalued and the complaint was not supported.
The Complainant stated that he had been promised weekly press advertising but later ascertained that the property was only advertised every two or three weeks. The Agent had not assured the Complainant that he would receive weekly advertising, but regular advertising. The Agent had fulfilled their obligations and the complaint was not supported.
The Complainant stated that the Agent had allowed potential Buyers to have unsupervised access to the property. However, he had provided no further details of when this had occurred. The Agent explained that they had allowed the surveyor unsupervised access, as was common practice, and the surveyor had arranged to meet the Buyer at the property, without the Agent's knowledge. The Agent apologised for this. An apology was considered to be appropriate and the complaint was not supported.
The Complainant had accepted the offer on the understanding that exchange would occur within 28 days. In fact, due to delays caused by the difficulties the Buyer experienced in obtaining building insurance, this timescale was not met. The sale exchanged two months after the offer was accepted. This was not the Agent's responsibility and the complaint was not supported. I upheld the Agent's entitlement to the commission fee.
5. The Complainant received a touting letter from the Agent and contacted the Branch to inform them that the Property was not for sale. The Branch apologised for the mistake and told the Complainant to tear up the letter. The Complainant then received a further letter in the form of a compliment slip a few weeks later, asking him to contact the Branch. The Complainant discovered that this was a further touting letter. The Complainant refuses to accept the apology he received and has requested that a member of the Agency staff be dismissed.
The Agent has admitted that an error was made by a staff member at the branch when noting properties for sale in the area. The Agent has apologised for this mistake and advised the second letter was due to their databases not being updated at their Head Office.
I pointed out to the Complainant that I am not a Regulator and I cannot authorise or instruct an Agent to dismiss members of staff. My role is to provide an informal review and to reach a fair resolution. I understand the need for Agents to canvass and tout as a means of attracting business. I recognise that the Agent has apologised to the Complainant and consider this to have been appropriate in the first instance. However, I would have expected the Agent to have made a more conscious effort to update all databases after the first complaint to prevent the re-occurrence of such a mistake. I made and award in the sum of £100.
6. The Complainant was selling his Property through Estate Agents. After an offer was accepted, delays and problems began, due to the Buyer liaising with the freeholder and then alleging that the Property suffered from damp. The Buyer provided a price for the work that was required to the Property. The Complainant agreed to a reduction in the selling price as long as the Buyer provided evidence to support the quote. When the Buyer failed to supply such evidence the Complainant sought advice from his own surveyor who concluded that there was no issue with damp. The Complainant requested the Agent go back to the Buyer to get the original price reinstated. This was either not done by the Agent or was and the Buyer refused to accept the new price. The sale ended up going through at the reduced price, £4,000 less than what was originally agreed.
The Agent admitted that they did not seek authorisation from the Complainant before allowing the Buyer's surveyor access to the Property. However they claim that the Complainant was aware that there was an ongoing issue surrounding the damp. The Agent originally claimed that they did inform the Buyer of the Complainant's request to reinstate the price once the damp issue was resolved and the Buyer refused to renegotiate on the price. However, in later correspondence the Agent s refutes having had any discussions with the Complainant regarding his instruction to reinstate the original price.
Such discrepancies and the failure to keep any Progress Notes or supply them to this Office have caused me concerns regarding the authenticity of the Agent's version of events and because of this I had no reason to doubt or challenge what the Complainant has alleged.
The Complainant was reminded to pay the Commission Invoice in full as the Agent met with their contractual obligations under the Agency Agreement and this was not disputed. The Complainant was informed that despite the failures of the Agent it was his decision to continue with the transaction at the reduced price and he could have withdrawn from the sale at any time. I made an award of £350.
7. The Complainants had signed an Agency Agreement under which they agreed to pay a fee of 1.5% plus VAT. They said they did so on the basis that they had concurrently told the Estate Agent that they would not pay such percentage and he had agreed to raise this with his superiors with a view to lowering the figure. They had told the negotiator that competitors were offering 1%. The negotiator assured them that it would not be a problem. The negotiator gave a totally different account of the conversation.
On completion the Complainants were asked to pay 1.5%. I could not draw any conclusion as to what exactly was said during the disputed conversation, but even on the Complainants' account, there was no clear agreement by the negotiator to charge 1%, and in that case, the signed Agency Terms were the only undisputable evidence of an agreed fee. However the Estate Agent had not clearly explained his fee, he had not recorded his discussions and he had not given the Complainants' a copy of the agreement, so breaching the OEA Code. I made an award of £200.
8. This is a case in which the Complainant, a proposed Buyer, was unable to purchase the Property because the Sellers opted to proceed with another party. From the information available I was unable to support the Complainant's view that her offer was misrepresented by the Estate Agent to the Sellers or that her offer was not confirmed in writing. Ultimately, it was for the Sellers to decide to whom and at what price the Property was sold. However, I concluded that the Estate Agent did not take all reasonable steps to inform the Complainant about other competing offers for the Property. I made an award of £100.
9. The Complainants had sold their Property through an Estate Agent. On the day of Completion the Complainants wrote to the Agent to complain about the service received and paid £2,000 out of the £2,937.00 Commission Fee. This cheque was cashed by the Agent but the Complaints were not responded to, until the Agent chased the Complainants, via their solicitors, over four months later, for the remainder of the invoice. The Complainants paid the outstanding £937.00 on 14 April, after the Agent threatened legal proceedings.
The Complainants raised a number of issues regarding the service they received, such as, the lack of communication, lack of marketing and the failure to effectively verify the status of the Buyer. The Complainants' first sale fell through, two months into the transaction, when it was discovered the Buyer could not obtain a mortgage. Lastly the Complainants complained about the Agent s inability to deal with their Complaint.
The Agent denied all allegations of Complaint and completely refused to admit that they had done anything wrong throughout the whole instruction and therefore they were entitled to the whole of their Commission Fee. The Agent's only admission was that there was a minor shortcoming in the level of service when dealing with the Complaint.
Complaints were supported where there was a discrepancy, such as communication and with regard to the Proposed Buyer's mortgage. More seriously, the Agent did not address the Complaints at any time. The final view point letter only explained the Terms of the Contract entered into and threatened legal action, if the balance of the Commission Fee was not paid. At no point, during the seven months from the date the Complaint was raised, did the Agent address the actual issues of Complaint. The only time the Agent commented on the allegations was in their submission letter to this Office. The Complainants did not have the benefit of seeing this document so could not counter argue any of the points that had been raised.
There was a clear breach of Paragraph 12b and 12d and 12f of the OEA Code of Practice. Seven months to respond to Complaints is inexcusable and then fail to actually address the Complaints is unacceptable. I made an Award of £400.
10. The Seller Complainant alleged that the Agent failed to effectively communicate with him for which he attributed one cancelled sale and an unreasonable time to complete the eventual sale. I explained the differing roles of the Estate Agent and the Solicitor and that the failure of the first transaction and the length of the sale itself was attributable to conveyancing and mortgage progression matters which were not in the Estate Agent's control. Notwithstanding this, Progress Notes confirmed that the Complainant was appropriately updated by the Agent who monitored the progress of the transaction in line with their responsibilities to their Seller client.
It was a factor in my review that no complaint was raised until two weeks after completion of the sale. Complaints made at the time in question are good evidence of a sustained problem. They also provide an opportunity for the Estate Agent concerned to put matters right. By not complaining at the time the Agent did not have the opportunity to address any perceived problems as it would appear they were unaware of the Complainant's dissatisfaction throughout their period of instruction.
The complaints were not supported.