Case Summaries
This is an example of Cases closed this year, this list will be updated on a monthly basis.
February 2008
1. The Complainants were sellers. They brought a number of Complaints concerning the manner in which the agent conducted the sale. The majority of the issues they raised concerned communication failures. Despite repeated requests from this Office, the agent had failed to provide any progress notes relating to the sale to show that they had kept a record of all offers received, financially qualified the buyers, or provided any assistance to the sellers during the sale. This failure meant that the agent was unable to show that they had acted in the sellers' best interests and communicated regularly with all parties. All complaints were supported and an award of £650 was made. The agent's entitlement to the commission fee was supported.
2. The Complainant purchased a Property through an Estate Agent. The Agents advertised the Property as having 'Gas Central Heating'. During the purchase of the Property the Complainant was told that a boiler and gas meter would be installed prior to Completion. This was not done but the Complainant still continued with the purchase. Over a month after Completion it was discovered that the Property did not benefit from having a gas supply and this would have to be connected before a boiler and meter could be installed. The Complainant could not move into the Property until thirteen weeks after Completion.
It was decided by the Ombudsman that there was some cause for concern regarding the missing boiler which was highlighted in the branch's file notes but these concerns on their own did not warrant the need for the agents to seek further verification than what they did. The Agents relied in good faith on the information provided to them by the seller. They did not deliberately misrepresent the Property but they did owe a duty of care to the Complainant, the fact that misleading advice was given causes me to believe that this duty was broken. However, other parties had a responsibility including the seller and the solicitors. Therefore the point of blame does not lie with just the Agent and this had to be taken in account when quantifying the claim. A proportionate award was made for £100
3. The Complainants agreed to buy a Property which was advertised as an 'attractive barn conversion'. When problems arose regarding other matters the Complainants requested the seller to provide a survey. With sight of the survey the Complainants raised further issues direct with the surveyor and discovered that the Property was not in fact a barn conversion but it had been built as a bungalow just 36 years earlier, on the site of a pigsty.
The Complainants state that they would not have put in an offer and incurred the costs of instructing a mortgage advisor/solicitors if they had known the above at the outset. They were seeking compensation for some of their costs as admission for the error made.
The Ombudsman felt that there was no evidence that the Agents had tried to verify the description of the Property with the seller, including obtaining a signed copy of the Particulars authorising their publication. The Agent had not taken reasonable steps to ensure the accuracy of the information given to the Complainants, this was in breach of Paragraph 4 of the OEA Code of Practice. When the inaccuracy came to light the Complainants withdrew from the purchase having incurred significant costs. It was clear that these costs would not have been incurred had it not been for the misleading Particulars. An Award was made in the sum of £300.
4. The Property was on the market with three agents whilst the Complainants were attempting to purchase it. Having originally viewed with Agent A, still keen, but not wanting to show their eagerness, they also viewed through Agent B. The Complainants then made an offer through Agent A, which was rejected. The Complainants were subsequently advised that the Seller had accepted a higher offer from a third party. A few weeks later, Agent B contacted the Complainants and asked whether they were still interested in the Property, as the sale had fallen through. The Complainants made another offer, this time, through Agent B. The sale progressed, a survey was carried out and then the Complainants discovered, through their solicitor, that the Seller had decided to proceed again with the third party.
The complaint that Agent A should not have interfered in the sale was not supported. It was found that even though Agent B had also conducted a viewing, Agent A had originally introduced the Complainants. Consequently, although Agent A's actions were viewed as interference by the Complainants, Agent A were entitled to peruse their commission fee.
The complaint that Agent B should not have allowed another offer to be submitted to the Seller as the Property had been withdrawn from the market was not supported. It was explained that Agent B remained under an obligation to submit all offers to the Seller, regardless of whether the Property remained on the market or not, until exchange of contracts had taken place.
A view could not be taken regarding whether Agent B had lied to the Complainants or Agent A either during or after the Complainants' transaction fell through, as it was not possible to determine after the fact, exactly what had been said and by whom during the relevant conversations.
However, it was found that Agent B had not complied with their obligations under the OEA Code of Practice. A complaint that the Complainants had not been treated fairly was supported. Agent B had failed to inform the Complainants that another offer had been submitted for the Property, that this offer had been accepted, that the contract papers had been forwarded to another party's solicitor and the Complainants were now involved in a contracts race.
Ordinarily the costs that a potential buyer incurs for surveys, legal fees and mortgage rearrangement fees cannot be reimbursed. However, it was found that if the Complainants were able to demonstrate that all or part of their costs had been incurred during the period when Agent B knew that the Buyers' renewed offer had been accepted, but had failed to advise the Complainants accordingly, but before the Complainants' attempted purchase actually collapsed, then any such expenditure would be reimbursed.
An award of £650 was made.
5. The Complainant was selling her Property. The Complainant maintained that she advised the agents, during the market appraisal, that she wanted a quick sale as she was relocating out of area and that she also explained to the agents that consequently, she would only be interested in accepting offers from first time buyers.
An offer at the asking price was received within five days of marketing. The Property was removed from the market. Two months later, the Complainant discovered that the Buyers were part of a chain. Problems were encountered at the bottom of the chain, with complex extensions to leases being required. The Property was remarketed and another offer was received and accepted. However, the Complainant eventually continued with original chain as it became the first transaction ready to exchange contracts.
The complaint regarding the information which was provided to the Complainant was supported in part. a view could not be taken regarding what verbal information had been given to the Complainant, as it was not possible to verify what had been said to whom. Therefore, it was not possible to ascertain whether the Complainant had been intentionally misled or provided with inaccurate information by the agents.
However, it was found that the agents had not met the Complainant's aims and needs as they had not confirmed, in writing, the status of the Buyers. Consequently, the Complainant was under the misapprehension that they were first time buyers and as a result was not in a position to make an informed decision regarding either the acceptance of offer or the continued marketing of the Property.
6. The complaint that the agents had provided inaccurate information regarding the cause for the delays was not supported. The view was taken that the agents were able to accept information provided by third parties and pass this onto the Complainant in good faith, even though it transpired that there were other reasons for the delays.
It was found that the agents could not be held responsible for the additional costs which the Complainant incurred. The decision to commit to an onward purchase or pay for the lease extension was that of the Complainant's, not the agent involved.
The complaint regarding complaints handling was supported. As it took over 12 weeks for the agents to reply, it was found that they had failed to comply with the timeframes laid down in the OEA Code of Practice.
An award of £725 was made in compensation.
7. The Complaint is that the Complainant alleges that she agreed with the Agent to revert her Agency Agreement from a Multi Agency Agreement to a Sole Agency Agreement and reduce the Commission Fee to 1%. The Agent denied that this conversation took place.
During the course of my examination there was only one Agency Agreement and that was for a Multi Agency Agreement. Furthermore, 2 months before Exchange of Contracts took place, it is evident that the Complainant was written to by the Agent informing her what fee would be charged if the Property was sold to the Buyers. The Complainant continued with the sale.
The complaint was not supported.
8. The Complainants have made numerous complaints about relatively minor issues and yet I believe their primary complaint is the initial sales pitch that is given to sellers of the benefits of using the Agent's network. But as each element is a separate company they were not able to complain to the Agent as a whole but to each company within which diluted the cause of their complaints.
I can well imagine that on finding out that the reason that the Complainants wanted to sell their Property was because they had found another property and was using another subsidiary the Agent used this information to help them gain the instruction by implying as they were part of the same group it would make it easier to monitor and liaise. However, once the offer on the Property had been accepted things started to go wrong and no one would take ownership of the problem which led the Complainants not trusting the relationship. To make matters worse when they did formally complain they had to deal with two subsidiaries who made statements such as 'I am sure you can understand that I cannot make any comment about the dealings you had with any other subsidiary.'
I can well imagine the frustration of the Complainants in this situation and I invited the Agent and their subsidiaries to examine the way in which their staff explain, in their sales pitch and the publicity material, what they are able to achieve and to avoid unreasonably raising their clients' expectations by promising what they are unlikely to be able to achieve. At the same time, the Agent should make sure that the staff deliver what they had promised.
Two minor issues I supported was that the 'For Sale' board was erected without permission and never removed and that the final viewpoint letter did not comply with 12f of the OEA Code of Practice.
Award made £225.
9. The Complainant felt that the staff had not monitored the sale and had left her uninformed.
The agent's sales monitoring records showed that they liaised well with the buyer and his solicitors to monitor progress of the sale and they kept the complainant adequately informed, whilst having regard to difficulties in contacting her. Part of the problem was that the Complainant expected them to be monitoring other sales in the chain; when the agents monitoring those sales passed on information to her, she wrongly deduced that her agents were not doing their job. The efforts of her own agents to explain this to her were ignored.
Good record keeping by the agent meant that the complaint was not supported
10. The Complainants in this case were Buyers who had informally arranged to collect the keys to the Property from the Agent on the day of completion.
One of the Complainants attended the Agents office at midday on the day of completion and telephoned the Agent later that afternoon to check that the opening hours of the office to ensure that they could collect the keys. A misunderstanding ensued about the closing times of the Agents office and when one of the Complainants arrived at the office on or around 5.30pm the Office was closed. The Complainants waited an hour and a half to see if anyone would return to the office and then sent the removal men home and sought out overnight accommodation. The following day (a Saturday) the Complainants returned to the office obtained the keys and the removal men returned, charging the Complainants an additional days rental charges totalling £1600.
The Complaint was supported and an award of £500 made for aggravation, distress and inconvenience caused. The Complainant made a claim for actual financial loss which was not supported.