Entitlement of Fee

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    James Morris

    This isn’t the first and certainly won’t be the last case of this happening I’m sure but wondered if anyone here had come across this before.

    We were instructed as sole agent to sell a property and received a fair amount of interest on the property but nothing solid. It belonged to an elderly couple and we were dealing with their daughter.

    The vendor then decided to instruct another agent so that we were acting jointly.

    Subsequently the day after the other agent was instructed we received an offer and a sale was agreed (typical).

    About a week and a half later we received another offer from a client who had viewed the property roughly 2 months earlier through us. The offer was for the same amount but they were in a better position. We informed them that the property had been sold STC but we would of course pass on the offer and get back to them.

    We attempted to contact the daughter multiple times but had no response. We then receive a call from the son informing us that they had received a better offer through the 2nd agent and that they wanted to go with them instead.

    We discovered that the client who had placed the new and presumeably higher offer was indeed the client who had contacted us.

    We have spoken to the daughter who has confirmed that she would like to proceed with this new offer and that we must speak to agent 2 in order to ‘sort things out’

    Under the circumstances we believe that we should be entitled to our fee as not only did we show the client around in the first place but they also contacted us with their proposed offer first.

    We have spoken to agent 2 who are acting a bit coy (predictably) and seem to be spouting something along the lines of case law?

    According to TPO


    Section 5r seems to suggest that we are entitled to this fee. Has anyone had this before?



    It’s your fee, no question.

    Approach the vendor first, if that’s a no, it’s off to court you go.



    James Morris – you say “The vendor then decided to instruct another agent so that we were acting jointly.”

    To clarify – do you mean you were acting on a JOINT Agency basis, or MULTIPLE?



    Section 5r can only help you if your ToB comply fully with TPOS etc guidelines in relation to Fee entitlement.



    James – Without wanting to be being picky it would help clarity if you use the correct terminology in respect of who is a ‘client’ and who is an ‘applicant’.



    A slight variation but it may help.

    We were instructed on a house, (multiple agents) had an offer, offer was rejected, buyers didn’t increase. End of.

    House comes off the market and goes back on with one of the agents from before some time later.

    Original buyer comes back and completes through new Agent.

    We issue fee note to client, client refuses to pay, we go to court, (the other agent it turns out told them “don’t say anything, they’ll never find out”).

    We won the case as we introduced them to the house and the critical point which the judge highlighted was that they offered through us as well.

    Sorry its a very much shortened version!



    smile please

    Had this a few times. Its really about how good you are at poker or how far you are willing to take it.

    The “Foxtons” ruling is interesting though.

    In 2008, in Foxtons v Pelkley Bicknell  a seller was sued by Foxtons for its commission because the firm said it had introduced a buyer, who was successfully reintroduced by a second agent, Hamptons. The Appeal Court ruled that it was no longer enough to introduce a buyer to a property. The buyer had to be introduced to the sale. As Foxtons had not introduced the buyer to the sale, they were not entitled to their fee. In other words, for an agent to be entitled to payment of their commission, they must show that they were the effective cause of the completed transaction



    We had one very different.

    Our buyer refused to deal with the previous agent, as they never passed on an earlier offer from him to the homeowner.

    You know you’re treading on thin ice when a buyer asks you to keep things quiet.

    We got the buyer to write a letter to the previous agent explaining that he was unwilling to work with them. We even waived our fee to be chased at a later date (held by the solicitor until who the fee was due to could be established, we just didn’t want anymore hassle and we would have waived it completely as the constant bickering was costing more time than it was worth) We saw the property through to almost completion.

    The previous agent sent a letter to the owner demanding the fee on completion it arrived the day before exchange and the buyer pulled out.

    This could have been sorted quite amicably but their refusal to stop harassing led to them getting no fee whatsoever.  and guess what it was a CW agent.

    What would you have done in this situation?


    James Morris

    Sorry for the delay in replying, I wanted to see ‘what would happen’.

    Firstly, a quick recap to hopefully clear up the situation.

    It was never a joint agency to begin with. We were instructed first (and told to deal with the vendors daughter, which we did), carried out viewings over a month or two, finally received a decent offer and the sale was agreed.

    Just before the sale was agreed the vendor instructed a 2nd agent.

    About a week or two after the sale was agreed, we were contacted by a previous viewer we had shown around saying that they would like to make an offer. They originally showed no interested when they first viewed and had a property to sell. They now said they didn’t have to sell their property. We advised them that a sale had been agreed but informed them we were duty bound to pass on their offer. We tried to contact the daughter of the vendor but didn’t get a response. We only had the one number and property is vacant possession. Texts and voicemails asking to call us were left/sent.

    We were then advised by the son of the vendor a few days later that they had received an offer and accepted it through the 2nd agent. The offer was made by the same people.

    So where we are now….

    We have had numerous conversations with daughter, son and 2nd agent. 2nd agent basically came up with some random one liner law which they must of grabbed off a website somewhere. The person we spoke to at the 2nd agent said that they would look into it and get back to us, never did. I presume hoping we would forget about it.

    We spoke to the daughter and the son and both parties agreed we should be entitled to an amount. As we know the daughter well (had previous dealings) we suggested that we would be agreeable to half our fee and share the other half with the 2nd agent.

    Had a call from the solicitor yesterday advising that the sale had completed and could we send them our invoice. We in turn sent them our half fee invoice as mentioned.

    Received an email from the vendor asking why they had received an invoice from us. Advised her that we believed we were entitled to due to the fact that the purchaser had originally viewed the property through us.

    Received another email today stating that our invoice is invalid and that in a nut shell, they won’t be paying it.

    This isn’t the first case of this happening with the 2nd agent from what we have come to discover.

    Do we call it a day and forget it or do we take it further? We have date and time of when the person viewed the property, we also have records of when they called to report the offer and text message evidence of us trying to contact the vendor’s daughter. Would we have a leg to stand on?

    Tin foil hat on… Daughter instructed us because we have had previous dealings with her and have always had good results but it was difficult trying to get hold of her from the start. From what I gather the son instructed the 2nd agent.

    • This reply was modified 2 years, 12 months ago by  James Morris.
    • This reply was modified 2 years, 12 months ago by  James Morris.

    James Morris

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    We have a date of when they viewed along with a completed offer form with their details on. From what you had said I’d suggest this is evidence that we introduced them to the property, not the 2nd agent.


    smile please

    I think you would be fighting a losing battle.

    You did not have a corespondence address so could not send a confirmation of offer letter as required by law. You did not get the offer accepted. You did not confirm in writing that you would be chasing your fee.

    It’s a bitter pill to swallow as you did find the buyer. But sounds like process let you down. It happens to all of us some times. I would suggest just walking away unless a large fee. You could trying instructing debt recovery but do you want the bad press of you go to court and lose?



    If you weren’t instrumental in the exchange and completion of the property you are going to have a pretty hard task chasing and getting the fees.

    I would suggest walking away, the issue you have to get past is your, unfortunately one-sided documentation.  What does it say in your contract about sole agency or dual agency? Does it say that they can market with who they like? Did they break YOUR contract? (this is always 1 path if it is worth it)

    We would rather let a house go off our books than market dual agency because of all these issues.  We had 1 terrible experience with a local Countrywide branch and have never done this again.

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