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. The complainants found a buyer quickly and moved without any serious hitches but they were unhappy with the sales particulars (spelling and grammar mistakes), failure to return calls one afternoon, staff attitude, an incorrect advertisement (after a sale had been agreed) and failure to acknowledge their complaint within three days (a substantive reply was sent in ten days). They also felt the agent had jeopardised the sale by wrongly telling an interested party that they had withdrawn the property. I declined to decide what was said to a third party, but felt it may be due to some misunderstanding if the interested party was told (correctly) that the complainants were not in a position to proceed. I supported the other issues apart from staff attitude but the problems were one-off incidents with no continuing implications and merited only a minor award of £50.
2. The complainants were successful sellers who complained after receiving the commission fee invoice that they had believed the commission fee was going to be 1.5% not a fixed fee. They believed the selling agent had deliberately misrepresented the terms of the Agency Agreement and the amount of the commission fee, and took advantage of their naivety. They signed the contract in good faith without reading it as they believed what had been verbally agreed with the agent had been inserted into the agreement. They are of the opinion that the contract was unfair and unreasonable and as such they should be refunded the difference between the fixed fee and 1.5% (£2,012.50).
I concluded that the Agency Agreement did not say the word 'fixed'. The agent may have failed to send an instruction letter confirming their fees, which would have prevented the complaint, but the agreement also never mentioned the word 'percentage'. As such there was no ambiguity. The commission fee quoted in the Agency Agreement was not 1.5% and therefore, it was difficult to understand why the complainants, had failed to see the discrepancy in the agreement if they believed they would be paying only 1.5% of the selling price. The complainants should have read the terms of the contract before signing and had they done so they could have challenged any of them. No award was made.
3. The complainants (the potential buyers) stated that they were not aware that the property was going to remain on the market after the seller had accepted their offer and that the agent treated them unfairly by not advising them of other parties' interests before their survey and bank valuation took place. The agent stated that the complainants were aware that the property would remain on the market and that they informed the complainants of the other parties interest the day after they were informed. I concluded that the complainants were aware that the property was going to remain on the market, but that the agent treated the complainants unfairly by not informing them as soon as was reasonably practical of the existence of the other parties offer which led them to being charged for a bank valuation. I made an award of £100 as my awards are not punitive and the sellers had provided a partial refund to the complainants for the valuation.
4. The agent failed to provide the seller with a copy of the draft sales particulars to ensure they were in an accurate format as required under Paragraph 4i of the TPO Code of Practice. During the conveyancing process it was noted that the buyer’s survey report stated that the property was single glazed when the sales particulars had advertised it as benefitting from double glazing. There was no evidence to suggest that the seller had ever seen a copy of the sales particulars. Following negotiations it was necessary for the seller to reduce the selling price by £2,000. I consequently judged that both parties should take some responsibility for the reduction in the selling price. My decision was influenced to some degree by the fact that the seller had signed a property consultation form at the time of the market appraisal to the effect that the property was double glazed. I did however advise that the agent could not present this form as an “all embracing” disclaimer as they had attempted to do so to my office. Neither should the form be considered as a means of releasing the agent from making subsequent misleading statements, especially statements that went on to become of major significance in the sale. I also took into account the fact that the buyer could have always renegotiated the selling price at any time up to exchange of contracts and for any reason. I was consequently unable to have presumed that the complainant would have suffered a proven financial loss as a direct result of the misdescription. Nonetheless I judged that the complainant had suffered significant aggravation, distress and inconvenience as a result of the incompetence of the agent for which an award of £700 was made.
A further complaint in respect of the commission fee was supported due to the fact that the agent had failed to make it clear in their administrative processes that the commission fee was subject of a minimum fee. I judged that the fee should be subject of a percentage as had been portrayed by the agent on a number of occasions which resulted in a reduction of £460 in the final invoice.
5. The complainants were prospective buyers who, after having viewed and had their offer accepted on the property, discovered approximately three weeks later that there was an ongoing problem with the water course at the property. The agent admitted knowing such information, but believed they were not required to disclose the same as the sellers and their neighbours were paying for the necessary work that was required to be carried out, and such work would have in all probability been completed prior to the complainants completing on the property.
I concluded that the agent did not have to disclose such information at the time of marketing and only had a responsibility to inform the complainants of the details of such works when directly asked. The works being completed were being carried out by civil engineers appointed by the County Council and paid for by the sellers. The remedial works were also completed prior to the complainants withdrawing from purchasing the property. The complainants were given the opportunity to view the property when the works were being carried out and refused, despite them themselves raising a complaint that they were refused this by the agent. They then withdrew from the purchase. This was their decision to make and therefore, they incurred the costs. The complaints were not supported and no award was made.
Lettings
6. The landlord complained that the agent had refunded the balance of the tenant’s security deposit to the tenant before the full amount of dilapidations and cleaning had been accounted for. I noted that the Tenancy Agreement required that the balance be returned within 30 days of the end of that agreement. The agent had received two invoices for repairs to the property within the 30 day period which they had settled from the deposit. The agent then wrote to the landlord advising that the balance of the deposit would be returned to the tenant unless the landlord confirmed otherwise. No such confirmation was received from the landlord and the residue of the deposit was returned on the 30th day. The landlord claimed not to have received the letter, however the branch file progress notes recorded that the letter had been sent and a confirmatory telephone call left for the landlord by the agent. Given that the agent had recorded in their contemporaneous progress notes that the message had been left and the letter had been sent, I accepted that these two occurrences happened. I could nonetheless not make any form of judgement as to whether the complainant received the telephone message or why she allegedly did not receive the letter. In view of my acceptance that the agent left the message and sent the letter, I was consequently of the view that the agent had then acted appropriately by returning the balance of the deposit to the tenant minus the deductions as presented in the two invoices.
7. The potential tenant complainant paid a holding deposit of £241.50 to the letting agent but withdrew from the transaction one working day later. The complainant requested the return of the deposit but the agent refused. My examination failed to persuade me that the complainant had ever entered into a binding contract with the agent in respect of the holding deposit. Paragraph 6f of the TPO Code of Practice provides that the agent should have set out in writing, prior to the complainant’s offer being formally accepted, any significant preconditions including circumstances in which the complainant may have had any potential liability for fees or charges. This included any fees or charges for the processing of the complainant’s application and the implications of withdrawal of such an application. It is clear that there never was any such agreement and at no stage was the complainant given any written information agreeing conditions under which she would forfeit her holding deposit and conditions under which she could claim it back. The agent had therefore not met with their obligations under the TPO Code of Practice.
I accepted that it is normal practice for a holding deposit to be forfeited in the event that an applicant changes their mind for whatever reason. If I had seen evidence that the complainant was made aware, in writing, of the nature of the payment and the preconditions attached to it, I may have been satisfied that the agent had adhered to the Code of Practice in informing the complainant of the possible consequences of their actions. In this case, no documentation had been produced to evidence that the complainant understood the position and I could not be satisfied that the complainant had an opportunity to understand the terms on which her money was taken before the payment was made. I supported the complaint and made an award of £241.50.
8. The complainant was a landlord who had complained that this letting agent, the third one he had instructed during the time of the tenancy, had not carried out inspections or an inventory, had allowed the tenant's boyfriend to move in and set up a business from the property, and allowed the tenant to smoke and have pets at the property. All of which led to the property being damaged by the tenant prior to her vacating. The complainant held the agent responsible for failing to identify such damage and take the appropriate action.
I concluded that the agent had carried out inspections every three months; they had reported their findings to the complainant and had explained why they could not enter the property at the start of the tenancy. The agent said that they had not noticed any pets at the property, the tenant's partner living at the property or any business being undertaken from the property. I had no evidence to refute this. With regards to the smoking issue, the agent was aware of smoking at the property and had reported this to the complainant. However, after two further inspections, they believed smoking was continuing at the property but failed to bring this to the complainant's attention. For this, a modest award of £50 was made.
9. The complainant was a tenant. She entered into a Tenancy Agreement in her sole name, advising the agent immediately after signing the same that a friend would be moving in with her. She alleged that she had verbally advised the agent of this during the viewing, and been told that it would not be an issue, but the agent disputed this and hence I could not comment on the same. The landlord was informed and he instructed the agent to reference the friend and increase the rent by £100. The complainant would not agree to this. However, I advised that the landlord was entitled to make such a decision, the complainant being in breach of the Tenancy Agreement.
The complainant also brought a complaint, stating that the agent had failed to deal with issues she had raised concerning the boiler. On being advised of the same, the agent had immediately notified the landlord and advised him to carry out any necessary repairs. The landlord had attended at the property. The agent had fulfilled their obligations under the TPO Code of Practice, that is, they had ensured that the landlord was informed and had been advised that the issues had been resolved, and hence the complaint was not supported.
10. The complainant (the landlord) had a contract with the agent for a full management service, however, at the end of the tenancy when the landlord tried to make a claim against the deposit she discovered that the agent had not undertaken a check in or check out report. Also during the course of the tenancy the contractor, who the agent had engaged to undertake some work, had partially tiled the bathroom without the complainant’s knowledge or consent. I drew no conclusion as to whether the complainant had a reasonable claim against the deposit however, in my view the agent had been negligent as they had not produced or prepared a check in or check out which had led to the complainant being unable to make a successful claim against the tenants even though the tenants had breached the Tenancy Agreement in a number of areas. I made an award of £275.
