Buying Agents Glossary - Guidance and Information
You are not required to use any associated service which is offered by the agent. You are perfectly entitled to use your own financial adviser, legal representative, or surveyor. Refusal of additional services should not prejudice any offers or viewings through the agent.
Duty of Care
A buying agent must always work in the best interests of their client, that is to say the person who is paying for the agency services. The estate agent should treat, all those involved in the proposed sale or purchase fairly, and with courtesy. If the buying agent or one of his staff, has any personal or business interest in the property, the buyer or seller, must be told as soon as possible in writing.
Fees and charges
An agent must inform the buyer in writing, before they agree to use his service, what fee (including VAT) is payable and when the fee is due. It must be stated clearly whether the fee is a fixed price regardless of the achieved buying price or whether it is calculated as a percentage based on that achieved buying price.
Illegal / Criminal Activity
Allegations of illegal and criminal activity (e.g. fraud) should be referred to the relevant authority (such as the police) or regulators (such as Trading Standards) who are empowered to undertake enforcement action. The Ombudsman does not have regulatory powers and cannot consider allegations of illegal or criminal activity.
The selling agent must describe the property as accurately as possible and not misrepresent the details.
Agents are legally bound under the Consumer Protection from Unfair Trading Regulations 2008 to describe a property truthfully and provide material information to allow potential buyers to make an informed transactional decision. Sales particulars should give a general description of the property and will highlight, for instance, the type of heating, double glazing installed, or appliances or furnishings that may be included in the sale. The buying or selling agent will not have tested any facilities but if they are of particular importance to you it is wise to question the agent further to allow him to and he can ascertain the relevant information from the seller or the sellers agent on your behalf.
Negligence is a term with a legal meaning and only a court can decide if an agent’s actions or inactions were negligent. The Ombudsman cannot decide claims of negligence and cannot speculate on what a court may decide. Consumers should seek legal advice if they wish to pursue a negligence claim.
The buying agent must record all offers received and not conceal, misrepresent, withhold or delay communicating offers. It is the seller who decides whether to accept an offer; to reject an offer; when to stop marketing the property after an offer has been made, and to whom to sell the property to and at what price.
Terms of Business
All buying agents must give their clients written terms of business. The buying agent must clearly explain all fees and charges and tell you if any fee will be payable if you withdraw your instructions to buy the property.
When dealing with the agent you should ensure that you understand:
- The fee that will be charged and whether it is based on a sliding scale according to the eventual sale price is at a set amount.
- How long the agreement runs for; how you can terminate it and with what period of notice is required.
- Whether you will have any continuing liability to the agent for a fee if you do terminate the agreement.
In particular you should:
- Realise that when you sign the agreement you are entering into a legally binding contract under which you may be liable for fees.
- Ensure that you have read and understood the terms of the agreement and the commitments you have entered into. Do not feel pressured into simply signing it and be aware that if you sign the document in your home or at your place of work you are entitled to cancel it within 14 days.
- Make sure that you receive copies of all relevant documents such as the agent's terms of business.
The Estate Agent
He is instructed by the seller of the property and whilst he has a responsibility to treat any prospective buyer fairly, his client, (the person paying for his services), is the seller. Both selling and buying agents are required to act in the best interests of their clients. They have no control over the legal process but will generally assist in checking on the progress of the purchase and, if agreed, in handing keys over on completion of the sale. Buying agents can also neogtiate on you the buyers behalf if instructed.
The Legal Representative
A Licensed Conveyancer or Solicitor and will progress the formalities of the sale and determine with the seller and the buyer the potential dates for exchanging contracts and completion.
The Mortgage Provider
If you require a mortgage to buy the property you may be dealing with a bank or building society, either directly or through an adviser. The agent is not allowed by law to give you any financial advice but he might refer you to an adviser with which he has links or which is a separate part of the same company. The agent will not have access to the records of the mortgage provider or adviser and has no control over the progress of any mortgage application.
Instructed by the prospective buyer or their mortgage provider and will offer various surveys from a general valuation report to a structural survey. Unless the mortgage provider specifies otherwise it is the buyers choice as to the type of survey undertaken.