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.
Sales
1. In this case, the Complainant (Seller) complained that she should not have to pay two commission fees to two Agents in respect of the sale achieved by the second Agent. She disputed the first Agent's claim to a commission fee and asked that they stop harassing her for payment of that fee. I supported the complaint regarding the commission fee to the extent that I was not persuaded the Agent 'introduced' the buyers; they failed to demonstrate that any provable action on their part directly and effectively led to the buyers purchasing the Property. In this case, the viewing arranged through them did not result in any positive feedback and took place over one year before the sale completed through another Agent. I concluded that the first Agent had not introduced the buyers 'to the purchase' and as such, I considered that they were not entitled to a commission fee from the Complainant in relation to the sale. I directed them to withdraw any claim for that commission fee that they may have been pursuing.
2. In this case, the Complainant (a Potential Buyer) alleged that the Agent pressured her to proceed with the proposed purchase of the Property quickly, and without a survey or local authority searches. I advised the Complainant that it was a requirement of the seller's instructions to the Agent that any buyer introduced be in a position to proceed immediately. In respect of the survey and searches, I found that the Agent had informed the Complainant of another offer that had been received from a party whose practice was to proceed without a survey or searches. I did not consider that this constituted a recommendation for the Complainant to proceed in the same manner, and I considered that the information regarding the other interested party had allowed the Complainant to make an informed decision as to whether to continue with the proposed purchase and incur survey costs. I did not support this complaint.
3. The Complainant, who was a Seller on behalf of her father for whom she had Power of Attorney, complained that the Agent failed to ensure that she was eligible to sell the Property. Although the Agent admitted that, in these particular circumstances they should have carried out checks they admitted they did not do so in this case. I supported this complaint but did not believe the circumstances merited an award of compensation. I also supported a complaint that the Agent had put details of the Property on their intranet site prior to obtaining the Complainant's approval of the Sales Particulars. A complaint was also raised about viewings and that the Agent failed to accompany potential buyers on several occasions despite stating in their Terms of Business that they would do so, and failed to accompany an energy assessor. I established that there were several occasions when the Agent was unable to accompany viewers and asked the Complainant if she could do so. However, the Agreement did state that they would accompany viewers "where possible" and I explained that in the circumstances when no-one was available from the Agent then the Complainant should accept that there would be some inconvenience to her if she was asked to accompany viewers. However, she had the option of asking the Agent to re-arrange the viewing to a time when they were available to accompany the potential buyer. I did not support this complaint. The Agent's Terms of Business did specifically state that they would accompany energy assessors, and so I supported the complaint that they failed to do so. I also supported complaints that the Agent failed to notify the Complainant of their online facility which allowed her access to details such as feedback from viewings, that one of their staff deleted her emails before reading them, and failed to provide her with regular updates following the buyer's offer being accepted. I made an award of £350 for the complaints that I supported in respect of which I considered financial compensation was appropriate.
4. In this case, the Complainant (Potential Seller) raised concerns regarding the Agent she instructed to market the Property for sale. Firstly, the Complainant alleged that the Agent pressured her to reduce the asking price of the Property and that in so doing they were acting in their interests, not hers. I found that that the Agent was acting in accordance with the TPO Code of Practice by reviewing their marketing strategy to achieve a successful sale in an increasingly difficult market and I did not support the complaint. Secondly, the Complainant alleged that the Agent had charged a marketing fee when they were not entitled to do so. I upheld the Agent's entitlement to the marketing fee and I did not support the complaint.
5. The Complainants (the Buyers) stated that the Agent failed to inform them of a proposed development which would impair the view from the Property and therefore was in breach of the Property Misdesriptions Act and Paragraph 4h of the TPO Code of Practice. The Complainants also stated that the Agent failed to address the complaint in accordance with their complaints procedure. The Complainants say that the design of the Property was intended to make the most of the view and that they paid a premium for a view which is going to change for the worse. I concluded that the Agent could not be held accountable for the Complainants unawareness of the proposed development near to the Property and I considered that this would have been a conveyancing matter dealt with by the Complainants appointed legal representative. I did not support this element of the complaint. I considered that the Agent failed to address the complaint in accordance with their obligations as specified by the TPO Code of Practice. I considered that this failing merited an award of financial compensation for the aggravation, distress and inconvenience caused to the Complainants. I made an award of £100.
Lettings
1. The Complainants, who were Landlords, complained that the Agent did not obtain their consent before they let the Property to the tenant at a rent that was somewhat below the amount it was advertised at. The Agent stated that they had obtained the Complainants' consent, prior to the letting, in a telephone conversation but had been unable to provide any documentary evidence of this. In support of their complaint, the Complainants provided my Office with a copy of an email they had sent to the Agent after the Tenancy Agreement had been signed. This email referred to a previous telephone conversation the Complainants had with a member of the Agent's staff in which they had discussed the rent achieved for the Property. In the email the Complainants referred to the Agent agreeing to pay them an amount equal to the difference between the rent being asked for the Property and the amount that had been achieved. There was no evidence that the Agent responded to this email. I supported the complaint as I determined that the email from the Complainants to the Agent gave credence to their claim that they had not given their consent for the Tenancy to go ahead at the lower rent figure and that the Agent had agreed to make up the shortfall. I also criticised the Agent for their failure to respond to the email. The difference between the rent the Property was advertised at the amount actually achieved was £330 over the six month term of the Tenancy. I made an award of this amount as I considered that the Agent had agreed to pay this to the Complainants. However, I explained to the Complainants that there was no guarantee that they would ever have achieved the rent that the Property was being advertised at and for this reason I believed the award was adequate compensation for the Agent's failure to respond to their email.
2. In this case, the Complainants (Potential Tenants) alleged that the referencing and administration fee they paid should have been refunded by the Agent upon the withdrawal of their application to rent the Property, as the circumstances under which they withdrew were beyond their control. I understood that the Complainants had taken the decision to rent an alternative property because the Agent had been unable to confirm when the tenancy at the Property could commence. I found no evidence to suggest that the payment of the fee was conditional upon the tenancy commencing upon a specified date, and found that the Agent had advised the Complainants that the fee was non-refundable. Furthermore, I was satisfied that the Agent had incurred expenditure in preparing for the proposed tenancy prior to the Complainants' withdrawal, and I considered it reasonable for the fee to be retained to cover those costs. Therefore, I did not support this complaint.
3. The Agent sent the Landlord Complainant written confirmation that the tenant had paid their rent for the month of July 2009. However, the monies were not transferred to the Complainant's account. The Complainant had attempted to obtain the monies from the Agent for a year without success and thus referred the matter to my Office in July 2010. The Agent then informed my Office that he had not received a formal complaint from the Complainant. It was therefore necessary for the Complainant to refer the matter back to the Agent to initiate the complaints process. I judged that there was strong evidence to support the fact that the Agent had received the rent monies of £512.05 and not transferred it to the Complainant's account. My examination also revealed that the Complainant had formally written to the Agent to complain in March 2010, but the Agent had failed to appropriately deal with the complaint. I was of the view that the failure of the Agent to adhere to the TPO Code of Practice with regard to the complaint handling aspect of the complaint had added to the aggravation of the Complainant. The shortcomings of the Agent had also resulted in the entire complaints process being needlessly elongated, the consequential effect being the Complainant's deprivation of the £512.05 for an unwarranted period of time. I directed that the Agent forward the Complainant the outstanding £512.05. I also made an award of £135 for the aggravation, distress and inconvenience suffered by the Complainant.
4. The Landlord Complainants held the Agent responsible for the costs of returning the Property to an acceptable condition and a three month vacant period following the conclusion of the Tenancy in question. The Complainants stated their belief that the Agent could not have conducted sufficiently diligent inspections given the level of damage they encountered when possession of the Property was handed back. Having examined the evidence presented, I was satisfied that periodic inspections had been carried out and explained that the Tenancy Agreement was between the Complainants and their Tenant; the responsibility to act in accordance with the provisions of this (including maintaining a reasonable standard at the Property internally and externally) was the Tenants' not the Agent's. At the time of the Agent's submission letter, the deposit was in dispute, and was being considered by the tenancy deposit scheme. I was satisfied that the Agent's service had been in accordance with their Terms of Business and the requirements of the TPO Code of Practice. I did not support the Complaint and would not, therefore, direct the Agent to return all the management fees and pay compensation for the vacant period as the Complainants had called for.
5. In this case, the Complainant (the Tenant) complained about administrative and financial incompetence by the Agent in relation to his rental payments made, resulting in an unnecessary threat of legal action and notice for him to vacate the Property. I was provided with limited information by both parties. In particular, the Agent provided no notes of conversations with the Complainant or a statement of account. I concluded that the decision of the Complainant to change when and how he paid rent (and the consequential arrears that accumulated) started a chain of events which led to on-going confusion about if and when he had paid rent over the course of the next three months. It seems that the confusion may have been caused (at least in part) by his (new) bank's failure to include the correct reference when transferring the rent to the Agent. I was persuaded that, as a consequence, the Agent was unaware of rental payments having been made by the Complainant on the first of each month. Consequently, in accordance with the TPO Code of Practice and in the interests of their client, the Agent was entitled to chase the Complainant for what they perceived to be unpaid rent. I was, though, critical of the Agent's apparent decision to wait until after they had served notice on the Complainant to vacate the Property and threatened him with legal action (on the landlord's behalf), to speak to the Complainant to ascertain the cause of the problem, particularly as they were aware by that stage of his changes to how and when he paid the rent. As the Agent admits, the confusion was very quickly resolved during that conversation. I am, therefore, persuaded that the Agent could have helped prevent some of the on-going confusion, and some of the resulting aggravation, distress and inconvenience suffered by the Complainant if they had been more proactive in their dealings with the Complainant, particularly when communicating with him. To this extent, I supported the complaint and made an award of £100.
