She then decided to instruct a local estate agent. However, a couple of days later, she received a couple of enquiries from her internet adverts.

What can she do? Will she be in breach of contract if she sells privately? Will she have to pay fees to the estate agent anyway?


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It does depend on the contract that she signed with the estate agent and the terms under which she agreed their representation.

If they originally had sole selling rights, then the chances are that there is a period of time during which they are contractually bound to receive the agreed commission regardless of whether the agent found your aunt the buyer (usually around three months).

The agent would probably be able to pursue your aunt through the courts if this was
the case, for the amount of commission agreed in the contract (often in the region of two percent of the sale value of the property). They may also be able to sting her for their legal costs in recovering their commission.

It is possible that the agent was not instructed with sole sellling rights, in which case the situation would be different and she may be able to avoid paying them.

I would really have to take a look at the contract to be able to shed any further light on the situation.


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It is most unlikely in this day and age that any residential estate agents agreement would include the archaic terms of "sole selling rights" - this is now reserved for commercial contracts where an agent is exclusively signed up by say a builder /developer to sell a whole estate of new builds.

Sole selling rights in a 'consumer' contract would almost certainly fall foul of the various Unfair Contract Terms legislation protecting private consumers and would be unenforceable by the agent at law - it would basically be unacceptable by the courts for an agent to enforce a commission payment where they had not introduced the buyer.

As regards the normal situation of "Sole Agency", this simply means that there must be no other estate agent involved (hence the lower charge offered), but it does not prevent the sale going to a private buyer (never introduced by the original agent) either by virtue of a private ad in the newspaper or by using an internet based private advertising service, in both cases no commission is payable.

In Claudine's case, all she needs to establish is that the buyers were never registered with the particular agent involved.

Regards
Martin Charlick


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