Case Summaries
This is an example of Cases closed this year, this list will be updated on a monthly basis.
April 2008
1. The Complainants sold their property through an Estate Agent. The Complainants allege that an agreement was made between the Agent and the Buyer that work would be done to the décor of the property by the Complainants prior to Exchange, without the authorisation from the Complainants. Subsequently the work was done but to a standard below what the Buyer expected, resulting in a drop in the Asking Price. The Complainants also felt that the Agents did not stick to verbal agreements made for storing items in the property and actually thought that the Agents undersold the property.
I felt that there was no evidence from the Complainants to support any of their allegations to any element of the Complaint. On this basis no Award could be made.
2. The Complainant agreed to sell her Property through Estate Agents. The Property was being sold during divorce proceedings; both the vendors had signed the Agency Agreement. During the negotiation stages advice was taken from only one party and instructions to reduce the Asking Price were accepted despite seeking clarification from the Complainant.
The Complainant also felt that the service supplied by the Agents surrounding a viewing and dealing with offers could have been of a higher standard.
I felt that there were errors made by the Agent with respect to the duty owed to both vendors and this was breached when instructions were not sought. It was also agreed that communication regarding a viewing was below standard. The other aspects of the complaint were however not supported. An Award was made for the inconvenience and aggravation felt by the Complainant and the breach of the OEA Code.
3. The Complainants represented their mother who sold her property. The Complainants complained that their mother was taken advantage of and that the Agents deliberately provided false information regarding the status of the purchaser and favoured one purchaser over another, they felt they had mislead the Seller by stating unjustified and fabricated comments as well as being insensitive. They also had concerns that details of the Agency Agreement were not made clear to the Seller at the time of selling. The Commission invoice was paid in full after a goodwill offer was submitted by the Agent and rejected.
The Ombudsman agreed that the Seller had received a level of service which was below that expected under the OEA Code of Practice. The Agent had failed to validate the financial status of the purchaser after claiming he was a cash Buyer and during the whole purchase provided the Seller with fabricated and misleading advice. Considering the Seller's age and level of vulnerability it was concluded that the Agent had endowed the Seller with a suitable service.
With regards to the Agency Agreement, the Ombudsman clarified that such terms cannot be rewritten and without evidence of what was said at the time a formal conclusion could not be made. It was felt that the level of service provided was so far removed from what should have been and would have been expected that the offer of £3,510.90 as a gesture of goodwill should still stand and therefore made an Award for the same.
4. The Complainants were potential Sellers. They agreed a sale of their property, but, five months after the offer was accepted, the buyers withdrew. The buyers had indicated, throughout the course of the sale, that they intended to complete the purchase. The Complainants indicated that they considered that the Agent had allowed the 'eminent' position of the buyers to influence their perception, that is, the Complainants considered that the Agent allowed the sale to be delayed by the buyers. If the buyers had been given an ultimatum earlier in the sale, the Complainants consider that they would have proceeded to exchange of contracts. None of the complaints were upheld. It was the Complainants decision to whom, and at what price, they sold the property. If they had wished to proceed in accordance with a specific timescale, they should have informed their solicitor. The Agent's responsibility was to monitor progress and liaise between all parties, reporting such information as was appropriate in an attempt to bring the matter to a successful; conclusion. The Agent fulfilled their obligations to the Complainants.
5. The Complainants wished to sell their Property through an Estate Agent. Whilst the Property was being valued the Complainants felt that they were misled over the terms of the Agency Agreement and the rate of the Commission Fee. The Property actually sold for 20% less than what it was valued at, the Complainants felt that the Property had been overvalued. When the Complainants wrote to complain, the Agent did not respond until five weeks later. It subsequently took four months before information regarding the OEA Scheme was provided to the Complainants.
I was concerned over the 20% discrepancy. When checking the comparables used by the Agent, during the Valuation, it was thought that these were not reasonable. The Ombudsman's own research noted that similar properties in the area were in fact selling at a similar price to what the Complainants Property sold at and not what it was valued at. The Complainants at the time of instruction had signed the Agency Agreement despite the eventual Commission fee being charged at 3.1% of the selling price as it was a fixed rate. Despite the high rate it is not the Ombudsman's role to re-write the terms of the Contract. Finally it was felt that the way the actual Complaint had been dealt with was not that of the required standard set out under the OEA Code of Practice and therefore the Agent had breached their obligations.
The goodwill gesture did not represent an appropriate amount and an Award of £887 was made.
6. The Complainants were selling their house and instructed Agent A to market the Property. After the sole agency period had finished, the Complainants dis-instructed Agent A and asked for a list of all the people who had viewed the Property. This was provided. The Complainants then instructed Agent B to market the Property and provided Agent B with the list of viewers introduced by Agent A.
The Complainants accepted an offer through Agent B. During the transaction, Agent A contacted the Complainants and advised them that they thought that a person who Agent A had previously introduced was one of the Buyers.
It eventually transpired that the Buyers, a husband and wife, had indeed been introduced by Agent A. The wife had originally arranged to view through Agent A, using her maiden name, which she had kept after marriage. Although her husband attended the second viewing, Agent A did not confirm his name or his relationship to the lady he was accompanying, gaining only his first name at the time of the viewing. The husband then subsequently arranged to view the same property though Agent B using his surname.
Consequently, as two different surnames had been used, the connection was not initially made that these were the previous viewers who had originally been introduced to the Property by Agent A.
Both Agents maintained their contractual entitlement to a commission fee in full, resulting in the Complainants finding themselves in a position of dual fee liability.
The complaint regarding communication failures in respect of Agent B was supported. Agent B had not acted in the Complainants' best interests; Agent B had failed to take any action either to advise the Complainants that there would be a risk of dual fee liability or to negotiate a commission fee with the Complainants or Agent A. Furthermore, Agent B repeatedly ignored the Complainants' letters which were only responded to on their behalf, once Agent B had placed the matter in the hands of their solicitors.
Undoubtedly Agent B had conducted negotiations with the Buyers; consequently, their entitlement to 50% of their commission fee was supported. This reflected the fact that having been advised by the Buyers themselves that they had previously viewed the Property during their viewing with Agent B and that the Buyers had subsequently telephoned Agent B to clearly state that they had already viewed through Agent A, Agent B took no action to inform the Complainants, their clients. This had effectively denied the Complainants the opportunity to make an informed decision, knowing that two commission fees would become due, regarding whether to continue with the sale, withdraw or effectively negotiate the selling price to incorporate the additional fees.
7. The Complainants had been attempting to sell the Property privately for almost a year. They received a canvassing letter, advising that the Agents had a potential Buyer who was seeking a property in the area. The Complainants invited the Agents to carry out a market appraisal. Consequently, the Complainants instructed the Agents to start marketing the Property quietly.
However, the Complainants explained that they did not initially want the Property advertised locally or on the websites as they did not want to jeopardise their present situation. The Complainants instructed the Agents only to market the Property using their current contacts within the nationwide agency network.
The following week a large advertisement appeared in the local newspaper.
The complaint, that the Agents had not followed the Complainants' instructions regarding the marketing of the Property, was supported. Clearly the instruction had been given, and confirmed in writing by the Agent that no local advertising was to be undertaken. The Agents admitted their error.
The complaint regarding complaints handling was supported. The Agents had not complied with the timescales laid down in the OEA Code of Practice in this regard.
An award of £3,140 was made to compensate the Complainants. Firstly, for their loss of rental income, which was directly attributable to the Agents' advertisement and secondly, the aggravation, distress and inconvenience which was caused.
8. A case in which a partner in the appointed Estate Agents made an offer for the Property without his position being made clear to the Complainant in writing in advance as required by the OEA Code of Practice. I have supported an element of the complaint that there was a conflict of interest; I have also supported a complaint that the Agent stopped marketing the Property without consulting the Complainant. The Property was eventually sold to a third party.
9. The property in question was in Scotland. The Complainants felt that they should not have to pay for advertising, although they had agreed a fee for this, because the enquiries generated did not lead to any viewings. This was because the staff were telling applicants that the property was under offer. This was true. The Complainants had at the time in question accepted (or at least indicated an intention to accept) the offer. The Ombudsman noted the estate Agent's offer to withdraw their charge for one of the two advertisements and felt this was a reasonable outcome.
The Complainants also felt pressured to accept an offer from someone they believed was a member of staff. In fact, no member of staff had offered, and there was no evidence of any pressure other than the unavoidable pressure of the Complainants having already agreed an Entry Date for their new property and struggling to sell their own property in time. The price achieved was within the initial expectations given at the market appraisal.
The complaint was not supported.
10. The Complainant wished to purchase a property through an Estate Agent. A month after the Complainant's offer was accepted it became known to the Agents and the Complainant that there was a discrepancy into the legal ownership of the Property subsequently causing long delays in the conveyancing transaction. The purchase took some 8 months to complete causing the Complainant to incur financial loss as she had to bear the cost of two mortgage offers and two surveys.
The Ombudsman felt that although the problems faced by the Complainant were unfair and very disheartening, causing a large amount of inconvenience and disruption, they were not the fault of the Estate Agent. The Agent became aware of the problems with the ownership and notified the Complainant at the same time. They have to act in good faith as to what information is provided to them by the seller. It was the Complainant's decision to continue with the purchase despite being aware of the delays. On this basis no Award was made.