Red door

Please Note: All references to the masculine include the feminine on TPO website and documents.

Case Summaries

This is an example of Cases closed this year, this list will be updated monthly.
March 2014

Sales

1. In this case, the Complainants (the Sellers) complained about the Agent they instructed to market the Property for sale. The Complainants withdrew the Property from the market when the Buyer's chain collapsed and raised a complaint with the Agent about their handling of the transaction. The Complainants subsequently sold the Property to the Buyer. When the Agent pursued them for the commission fee, 17 months later, the Complainants claimed that the Agent had verbally agreed not to pursue them for payment of the commission fee in order to resolve their complaint. The Complainants subsequently complained about the protracted attempt by the Agent to secure payment of the commission fee from them over the course of the following 9 months. I was critical of the Agent's failure to conclude their investigation of the Complainants' initial complaint which confused the Complainants, in my view. The third party debt collection agent acting on behalf of the Agent also failed to conclude their initial correspondence with the Complainants, resulting in the Complainants' mistaken belief that the outstanding debt had been waived. My award reflected the Complainants' subsequent aggravation when the debt collection agent chased them again for payment of the commission fee, 9 months later. I was critical of the handling of the Complainants' subsequent complaint by the third party debt collection agent on behalf of the Agent and I criticised the Agent for the delay on their part in concluding the complaints process. I reinstated the Agent's offer to reduce the commission fee from £6,480 (including VAT) to £4,860 (including VAT) made in recognition of shortcomings in their service to the Complainants.

2. The Complainants (the Buyers) raised a complaint against the Agent on the basis that the Property had been advertised with off-road parking when it did not have a dropped kerb, which meant there was no legal access to the off-road parking. I supported the complaint on the basis that the Agent had attended the Property on numerous occasions, to collect marketing information and conduct viewings, and, as such, should have been 'on notice' that there may have been a legal access issue concerning the parking on the driveway, as there was no dropped kerb. I considered that the Agent had a duty to flag this issue to potential buyers who viewed the Property. I accepted that the Complainants would have been caused avoidable aggravation and distress by the fact that the Agent had not drawn this potential issue to their attention before they purchased the Property. However, I did not consider it appropriate to make an award for the cost of applying for planning permission to install a dropped kerb or the construction cost of this, as the reality of the situation was that the Complainants had attended the Property on three occasions prior to purchasing it, and, on at least one of these occasions, had parked on the drive. I considered that they were, therefore, aware of how the drive was accessed in a motor vehicle. In addition, the Complainants employed solicitors to handle the purchase of the Property and it was part of their role to check legal access rights to the Property. I, therefore, made an award of £150 in compensation for the aggravation caused to the Complainants by the Agent's communication shortcoming.

3. The Complainants (the Sellers) thought they had accepted an offer from cash buyers as described by the Agent in the memorandum of sale. I was satisfied that it was not until sometime later that they became aware that the Buyers had to fund the purchase of the Property by the sale of their own. It would appear that at this point the Complainants raised a verbal complaint and the Agent's subsequent communications with the Complainants were non-existent until exchange of contracts took place; some six weeks later. Whilst I was unable to support the Complainants' claim of financial loss, as I was not persuaded that it was ultimately the Agent's fault that there were delays to the transaction, I was persuaded to make an award for aggravation, distress and inconvenience connected with the Agent's misleading communications as well as their subsequent ineffective, and at times non-existent, communications after acceptance of the offer and, particularly, during the latter three months before exchange of contracts. I made an award of £250, which left a commission fee balance of £306.83 to pay.

4. The Complainants, who were Sellers, claimed that the Agent had not acted in accordance with their duty of care to them because they had informed their Potential Buyers that another property was available on the same Development and, as a result of this, the Potential Buyers withdrew from purchasing the Complainants' Property. I supported the complaint but only to the extent that I did not consider that the Agent had treated the Complainants fairly by not informing them that they intended to tell the Potential Buyers about the availability of another suitable property. The Agents were agents for the Development and were employed by the Property Developer. In the circumstances, where the evidence indicated that the Complainants were not in a position to exchange contracts due to delays with their onward purchase and the Potential Buyers were asking about alternative properties, I was of the view that it was reasonable for the Agent to have informed the Potential Buyers of other available properties. However, they should have informed the Complainants of the situation and of their intention to do so. I accepted that the Complainants were caused some aggravation, distress and inconvenience as a result of this omission. I, therefore, made an award of compensation in the sum of £100.

5. In this case, the Complainant explained that she had paid a deposit of £500 to the Agent in order that they would reserve the Property for her. The Complainant stated that the Agent had assured her that the deposit would be refunded if the sale did not proceed. The Complainant subsequently withdrew from the transaction and asked for the deposit to be returned but the Agent declined. I found that the Agent had not adhered to the general rule under Paragraph 9a of the TPO Code of Practice not to take pre-contract deposits, had not ensured that the receipt for the money contained all the information it should have done and had not returned the funds to the Complainant in a timely manner. As such, I was not satisfied that they provided a service consistent with fairness, integrity and best practice, as required under Paragraph 1d of the TPO Code of Practice. I supported this complaint. I directed that the Agent return the deposit of £500 and pay £150 in respect of lost interest and distress, aggravation and inconvenience. My full award was £650.

Lettings

1. The Complainants (the Tenants) attempted to give written notice to end the on-going periodic Tenancy shortly after the end of the fixed term, but without aligning the notice with the end of term date. Consequently, the Complainants were required to remain in the Property for a further period until effective notice was given. Although the Complainants had some responsibility to ensure they understood the notice requirements to end the Tenancy, I was critical of the Agent for failing to demonstrate the provision of any clear and effective information to the Complainants either at the start of the Tenancy or at the end of the fixed term about their entitlement to end the Tenancy beyond the end of the fixed term and the form that notice should have taken. In particular, the Tenancy Agreement included no information in this regard. I was satisfied that the Agent's failure to demonstrate any effective information in this regard contributed to the Complainant's confusion and lack of understanding about ending the Tenancy. They were entitled to feel further aggravated by the Agent's failure to acknowledge and respond to email communications, including their complaint. I made an Award of compensation of £175 to reflect the Agent's unsatisfactory communications and the related aggravation, distress and inconvenience.

2. The Complainant (the Landlord) claimed that the Agent was negligent regarding inspections and they were reluctant to re-inspect the Property, despite her specifically instructing them to do so. I supported an element of this complaint, on the grounds that the Agent was unable to demonstrate that they periodically inspected the Property and was unable to properly justify why they did not re-inspect the Property when asked by the Complainant. The Agent failed to meet their obligations under Paragraphs 1d, 10a and 14e of the TPO Code of Practice and unduly aggravated and inconvenienced the Complainant. The Complainant also claimed that when she wrote to complain to the Agent, they promised that they would investigate her concerns, yet this never happened. I supported an element of this complaint as the Agent should have done more to respond to all of the issues raised by the Complainant in one of her complaint e-mails in a timelier manner as they were expected to under Paragraph 15d. I made an award of £300 for the elements of the complaints I supported.

3. The Complainant (the Tenant) agreed to rent the Property as seen; however, it was evident that he was not happy with the condition of the flat once he had moved in. The Complainant had paid the six months' rent in advance. The Complainant made numerous complaints about the maintenance of the Property, the lack of keys and the manner in which the Agent handled the early termination of the Tenancy. In this case, I was not persuaded to support any of the complaints concerning the maintenance of the Property as the Agent could demonstrate that the delays were caused by the Landlord. However, I had some reservation about the Complainant's inability to gain entry to the Property at the start of the Tenancy and the failure in communications concerning the post box key. However, I consider the Agent's offer to pay for the replacement lock for the post box when the Complainant lost his keys to be appropriate compensation for these omissions. I was also satisfied that the Agent's handling of the early termination of the Tenancy Agreement before the end of the fixed term to have been reasonable in the circumstances.

4. In this case, the Complainant (the Landlord) raised concerns about the Agent instructed to manage the Property after she discovered that the Tenants they recommended for the 12 month fixed term of the Tenancy had moved into the Property with two dogs. The Agent failed to demonstrate that they met their obligations under Paragraph 6h of the TPO Code of Practice by not providing the Complainant with written details of the offer from the Tenants to rent the Property on the understanding that they could keep two dogs. Had the Agent done so, before the Tenants signed the Agreement, then the issue may have been avoided in my view. Instead, the Agent failed to meet their obligations under Paragraphs 1d and 14a of the TPO Code of Practice to act in accordance with best practice and to provide the Complainant with suitable advice to meet her needs and aims. I supported another communication aspect of the complaint which extended to the Agent's handling of the complaint. Overall, I made an award of £200 for aggravation, distress and inconvenience.

5. In this case, the Complainants (the Landlords) alleged that the Agent did not tell them within a reasonable time when the Tenants reported a damp problem at the Property and did not take any action to address it. As a result, the condition of the Property deteriorated and the Complainants considered that the Agent were responsible for this. The Agent acknowledged that there was a delay in advising the Complainants that there was a damp problem at the Property and in attending to the matter. I therefore supported tis complaint. The Complainants also alleged that the Agent did not arrange for the gas safety check to be carried out in a timely manner and incorrectly charged them for it. The Agent acknowledged this and I supported the complaint. The Complainants considered that the Agent should refund their management fees in view of their shortcomings in service. I found that the Agent was contractually entitled to their fees in full as they had let and managed the Property, albeit not to the Complainants' satisfaction. The Complainants also alleged that the Agent had not dealt with their complaint in a timely manner. I found that the Agent had not complied with the time limits under the TPO Code of Practice for processing complaints. I supported this complaint and made an award of £1,000 for the aspects of the complaints I supported.