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.
July 2014

Sales

1. The Complainants (Potential Buyers) raised a complaint that despite receiving assurances from the Agent that no further viewings would be conducted after their offer had been accepted; another party viewed and subsequently submitted an offer which was accepted by the Sellers. The Agent refuted that any such assurance was given to the Complainants, that it was their Seller clients' express instruction that the Property was to continue to be actively marketed, and that this was made clear within the Memorandum of Sale they issued. The Complainants were dissatisfied that viewings were conducted when they had been assured that none would be, and that the Agent not only failed to inform them of this but the other party who had viewed, and submitted offers, eventually having one accepted. The Complainants were also dissatisfied with the Agent's investigation into their complaint. I supported elements of the complaint as I found that the special condition noted within the Memorandum of Sale did not make the conditions under which the offer had been accepted sufficiently clear to the Complainants, and had it been the Sellers' instruction that the Property was to continue to be actively marketed, this should have been confirmed in writing to the Complainants. I was critical of the Agent for their failure to inform the Complainants of the existence of another prospective purchaser who had submitted an offer, after theirs had been accepted, contrary to their obligations. I also found that the Agent had not fully adhered to their obligations in respect of complaints handling, or demonstrated that they took the Complainants' issues seriously. I made an award of £845 which included the cost of the structural survey.

2. The Complainants (Sellers) were the Executors of their mother's Will. The Complainants raised their complaints before contracts were exchanged but the Agent failed to respond until 42 days' later by which time completion had occurred. The complaints related to communication failures, the valuation and the marketing of the Property. The Complainants were seeking a reduction in the Agent's commission fee. In this case, I supported the Agent's entitlement to charge a commission fee in accordance with the Agreement that had been signed by the Complainants as it had not been disputed that the Property had been sold to a Buyer introduced by them. I was not persuaded to support the complaints associated with the under-valuation of the Property, or the alleged undue pressure to accept an offer and when to complete. I was also satisfied that the Agent had informed the Complainants of the visit by an engineer on behalf of the Buyers, albeit the information was given to the partner of one of the Complainants. However, I was persuaded to support the complaint that the Agent had failed to produce their specialised marketing material in a timely manner. I directed the Agent to refund the cost of this brochure which amounted to £162 as the Complainants had accepted the Buyers' offer by the time the document was produced and so it was not used to market the Property and the Complainants received no benefit from it. The Agent had made some promises about the viewing arrangements which they did not initially keep; I therefore supported this complaint. I also supported the complaint that the Agent had failed to obtain the Complainants' consent before they removed the Property from the market. The Agent also failed to respond to the Complainants' initial letter of complaint within 15 working days. These shortcomings would have caused the Complainants some unnecessary aggravation, distress and inconvenience. I made an award of £415 which included the refund of £162 in respect of the additional marketing brochure.

3. The Complainants (Sellers) complained that they were mis-sold a marketing package by the Agent. They said that they were advised by the Agent that they would be entitled to cash back on completion of sale irrespective of whether another agent sold the Property instead, when in fact this was not the case. I was presented with differing accounts as to what was discussed regarding the marketing package. That said, I was satisfied that the Complainants had been provided with the relevant literature at the time and that it was clearly set out therein as to what packages were available, the fees applicable and the circumstances in which cash back could be claimed. In the circumstances, I was not persuaded to agree with the Complainants' view that the Agent had breached Paragraph 1d of the TPO Code of Practice and I did not consider that there was anything remiss or reasonably unexpected in the Complainants not subsequently receiving cash back when they sold through another agent. I did not support this complaint.

4. The Complainant (the owner of land neighbouring the Property) raised two complaints with reference to the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and complaints handling. I supported the complaint regarding a potential breach of the CPRs as I found that there was material information available to the Agent, regarding an ongoing dispute involving the Complainant concerning a right of way over the grounds of the Property, which should have been disclosed to the Buyer. I did not find that the Complainant had been disadvantaged by the Agent's failure in relation to his legal claim regarding the right of way, but I accepted that some aggravation had been caused as the Complainant had specifically contacted the Agent when the Property went on the market and asked them to alert potential buyers to the ongoing legal dispute and the Agent had not complied with this request. I did not consider that the Agent had treated the Complainant fairly in this regard. I also supported the complaint regarding complaints handling as I was not satisfied that the Agent had communicated with the Complainant in a sufficiently timely manner, therefore, causing him avoidable aggravation. I, therefore, made an award of compensation in the sum of £200.

5. In this case, the Complainants (Sellers) alleged that the marketing materials the Agent had produced for the Property were poor, in particular the photographs that had been used by the Agent for a newspaper advertisement for the Property. I appreciated that the Complainants had been dissatisfied with the print quality of the photographs, but did not consider that they were of such a poor quality that the Agent could have foreseen this issue. I advised the Complainants that, in most circumstances, I would expect an Agent, when advised of such dissatisfaction, to arrange for their marketing materials to be amended to their client's satisfaction. However, in this instance it was clear that the Agent had sold the Property before they were able to do so. It was my view that the sole purpose of the Agent's marketing of the Property was to achieve the sale of the Property at a price that the Complainants were agreeable to, and that in this instance a sale had been agreed at the asking price two weeks after the Property had first been marketed. I did not, therefore, consider that the Complainants had been in any way disadvantaged by the service that they had received from the Agent and I did not support this complaint.

Lettings

1. The Complainants (Landlords) made a number of complaints regarding the actions of the Agent during the term of a 21 month Tenancy. The majority of the complaints concerned the actions of the Agent following the Tenant's notification to end the Tenancy and vacate the Property. These included issues related to the check-out inspection and report; failure to secure monies over and above the Tenant's security deposit and failure to collect rent arrears; loss of keys and failure to deal appropriately with the Complainant's complaints. The Agent had utilised the services of a third party company to carry out the check-out inspection and compile the report. However, the Complainants raised a number of discrepancies with the initial report and a second inspection was undertaken. I was critical of the Agent for failing to demonstrate that they had taken any responsibility for comparing the original inventory with the check-out report and I did not consider that the instruction of a third party negated all of their responsibilities in that regard. I acknowledged that the Agent had updated the utility companies with some of the meter readings following the check-out, however, the Complainants, having carried out their own inspection on the same day, obtained missing meter reading and instructed the Agent to pass these on, which they failed to do. I was persuaded that the Agent had carried out periodic inspections and I did not consider that there was any indication that the Agent was put on notice as to the likely condition of the Property at the end of the Tenancy, during the course of these inspections. Nor did I consider that the inspections would necessarily have identified the business that was allegedly being operated from the Property. I considered that the Agent failed to properly demonstrate good communications with the Complainants regarding the rent arrears, attempts to seek costs for dilapidations and in particular, a failure to deal with the Complainants complaints on two occasions. I made an award of £500 for avoidable aggravation, distress and inconvenience caused by the Agent's shortcomings.

2. In this case, the Complainants (Tenants) raised concerns about the Agent's communication with regard to the release of the (agreed) deposit monies to them. The Agent had not been instructed by the Landlord to manage the Property and had not been involved in negotiations between the parties concerning the deposit. The Agent had provided the Complainants with the prescribed information regarding the release of the deposit at the end of the Tenancy. However, the Agent failed to demonstrate that they treated the Complainants fairly and reasonably by not responding to a query about the process. Had the Agent explained to the Complainants at this stage (rather than on concluding their investigation of the complaint) that they were waiting for written agreement from both parties before they could release the deposit monies to them, the issue may have been avoided in my view, particularly as the Complainants said that they and the Landlord were in touch with each other and had already agreed the deductions. In the absence of any communication from the Agent to the contrary, the Complainants were entitled to believe that the Agent was in the process of arranging payment of the balance of the deposit monies to them. In these circumstances, it was understandable that the Complainants were annoyed to discover 28 days after they wrote to the Agent that the arrangements had not yet been put in place for the agreed balance of the deposit monies to be released to them. Once the Agent received authorisation from the Landlord, I was satisfied the deposit monies were transferred to the Complainants promptly (the same day). I made an award of £150 for aggravation, distress and inconvenience resulting from the Agent's initial failure to communicate effectively with the Complainants regarding the release of the deposit and for the inconsistent nature of the Agent's explanations during their investigation of the complaint.

3. In this case, the Complainants (Landlords) raised concerns regarding the Agent's inventory and check-out procedures and the manner in which the Tenants had maintained the Property throughout the Tenancy. It was evident that there were elements of the Tenancy Agreement with which the Tenants had not complied and I appreciated that the Complainants had been caused aggravation as a result. I was satisfied, however, that the Agent had communicated with the Tenants regarding their use of the Property when issues had come to their attention, and I advised the Complainants that the Agent could not be held accountable for the actions of the Tenants. I was further persuaded that the inventory and check-out documentation that the Agent had prepared was sufficiently detailed to fulfil the relevant provisions of the TPO Code of Practice, and I found no evidence to suggest that the Complainants had been in any way disadvantaged by either the content of the inventory or of the check-out report. Consequently, I did not support the complaints that were made and made no award in compensation.

4. In this case, the Complainants (Tenants) raised a number of concerns regarding the Agent the Landlord instructed to manage the Property. The complaint primarily concerned the maintenance of the Property, and I advised the Complainants that the responsibility to ensure that the Property was in a fit condition to let and to address any maintenance issues which arose lay with the Landlord and not the Agent. I did find, however, that the Agent's communication with the Complainants regarding some of the maintenance issues which arose did not meet the requirements of Paragraph 10b of the TPO Code of Practice, and that the inventory prepared by the Agent did not accurately reflect the condition of the Property at the commencement of the Tenancy. I supported these elements of the complaint, and further supported an element of the complaint concerning the Agent's complaints handling. Accordingly, I made a compensatory award of £200.

5. In this case, the Complainants (Tenants) alleged that the Agent instructed by the Landlord to manage the Property had failed to address maintenance issues that they reported. I advised the Complainants that, ultimately, the responsibility to ensure maintenance of the Property was carried out lay with the Landlord and not the Agent, and that the Agent could not be held accountable for any failings of the Landlord in this regard. However, I considered that the Agent had failed to respond promptly and appropriately to the problems that were reported, contrary to the requirements of Paragraph 10b of the TPO Code of Practice and I upheld the complaint to this extent. I also upheld a complaint raised regarding the failure of the Agent to respond to a formal complaint made by the Complainants, and accordingly, I made a compensatory award of £200.