The potential Sellers complained that the Agent had charged them a commission fee that they were not entitled to as the property had not been sold. The Agent responded by providing a short explanation simply stating that they had introduced a ‘ready, willing and able’ buyer and, therefore, were due a fee regardless of whether the property had sold.
Upon examining the agency agreement I expressed concern that the wording did not clearly define the arrangement as it included both ‘sole selling rights’ and ‘ready, willing and able’ terms. However, the Sellers had signed the agreement and, therefore, had agreed to pay a fee where the Agent produced a buyer who was ‘ready, willing and able’ to exchange unconditional contracts. The Agent demonstrated that they had done all that could be reasonably expected of them to facilitate exchange of contracts and completion. However, it was also apparent that when the Sellers were put ‘on notice’ that the potential buyer (who was in a position to proceed) was going to pull out of the transaction if contracts were not exchanged within the required timescale, they had not taken all the reasonable steps necessary to facilitate exchange of contracts on the planned date and they therefore caused the transaction to collapse. The agreement stated that a fee would be payable where the Sellers cancelled the sale and, despite the fact that the Sellers took time to satisfy themselves over a building regulations matter (which had compounded the issues and led to the sale not proceeding), the Sellers themselves did not directly ‘cancel’ the sale.
In reaching a judgement, I also took into account the fact that the Agent had failed to inform the Sellers that if they did not exchange on the planned date they would still be liable to pay the commission fee. Therefore, in light of these circumstances, although the Agent had found a ‘ready, willing and able’ buyer, I considered it reasonable for the Sellers and the Agent to each be responsible for 50% of the commission fee.
An agent must always explain to their clients the precise circumstances within which they will become liable for any fees.