Mr and Mrs I (the prospective buyers and complainants) were due to exchange contracts on the property two days before Christmas but, on the day of the exchange, it was discovered that the sellers’ proposed onward purchase had suffered flood damage and was the subject of an insurance claim. Although Mr and Mrs I’s money was in place with their solicitor in readiness for exchange, given that the sellers were elderly, Mr and Mrs I did not wish for them to have to move into a water damaged property in the middle of winter. They agreed to postpone the exchange and completion until after Christmas. However, three weeks after the holidays the Agent contacted Mr and Mrs I to inform them that the sellers had accepted another offer and would not be proceeding with them. Mr and Mrs I immediately complained that the Agent had failed to keep them updated.
The Agent’s file recorded that they had arranged a viewing for another prospective buyer during the festive period who then offered more than Mr and Mrs I. The sellers rejected the offer however, after the offer was increased and after taking a number of days to consider the position, the sellers decided to proceed with the new buyer. During this time the Agent had monitored the negotiations and financially qualified the competing buyer. However, it was clear that not only had the Agent failed to inform Mr and Mrs I that they were continuing to market the property but they also failed to inform them that a competing offer had been received. The Agent simply continued to monitor Mr and Mrs I’s transaction as it proceeded in parallel with the new offer. It was only at the point that the sellers accepted the competing offer that the Agent informed Mr and Mrs I of the situation.
I pointed out that, whilst it was the decision of the sellers to whom and at what price the property was sold, the Agent was obliged (under Paragraphs 7d and 7e of the Code of Practice) to have advised Mr and Mrs I, in writing, that the property continued to be marketed and to keep them informed of the existence of any other offers. This they did not do and I had no doubt that the failure of the Agent caused Mr and Mrs I significant aggravation, distress and inconvenience. Indeed, this was particularly so given the fact that Mr and Mrs I had agreed to postpone the exchange date to facilitate the sellers’ wellbeing; that the delayed transaction was so close to exchange; that they were completely unaware of the viewing over the Christmas period or that the competing offer had been in existence since that viewing. I supported the complaint and made an award of £600.
Not only does the Code of Practice place an obligation on the Agent to confirm to prospective buyers (who have made an acceptable offer) the existence of other offers and whether or not the property continues to be marketed, but Paragraph 1d also requires them to treat them fairly at all times. Not keeping buyers who have had an offer agreeed updated with significant information is simply unacceptable.