The potential Seller complained that the Agent had charged them a commission fee that they were not entitled to as the Buyers introduced could not be considered ‘ready, willing and able’, underlined by the fact that the transaction had not completed.
The Estate Agents (Provision of Information) Regulations 1991 define a purchaser who is ‘ready, willing and able’ as a person (or persons) who “is prepared and is able to exchange unconditional contracts for the sale of your property”. In this case it was clear from the Agent’s file that the Buyers’ ability to complete the transaction was dependent on the successful sale of their own property, a satisfactory survey of the Seller’s property, searches and a successful mortgage application, none of which had been obtained.
On the basis of the information and evidence provided, I was not persuaded that the Buyers satisfied the definition of ‘ready, willing and able’ purchasers. Indeed, given the Buyers’ circumstances, it was clear that, at the point that the transaction broke down, the Buyers were neither ‘ready’ nor ‘able’ (regardless of whether they could be considered ‘willing’) to complete the transaction. I, therefore, supported the complaint and directed the Agent to withdraw their invoice for the commission fee.
If a ‘ready, willing and able’ clause is to be used in agency agreements, the precise circumstances upon which a commission fee will become due must be explained to the consumer prior to the signing of the document. Thereafter, in order for a commission fee to be charged, the buyer introduced by the agent must fulfil the ‘ready, willing and able’ definition as set out in the Estate Agents (Provision of Information) Regulations.