In this case, the successful Seller was concerned that the Agent had released the key to her Buyer a week before completion, enabling him to begin major building work (including re-wiring and the removal of fireplaces and kitchen cupboards) without her permission. She also alleged that they had permitted unaccompanied viewings; failed to issue a Memorandum of Sale in two instances and handled her complaint unsatisfactorily. She was seeking a refund of the £1,200 commission fee which she had eventually paid on a 'without prejudice' basis shortly before a Small Claims Court hearing to avoid further costs. The Agent acknowledged that the key had been released to the Buyer prematurely and was unable to explain how this had happened. However they insisted that contracts had already been exchanged and noted that the Seller had not suffered any financial disadvantage as the sale had completed successfully. They made no apology and denied the other allegations, but reluctantly offered a £100 fee reduction as a 'goodwill gesture'. When the Seller indicated that she was not satisfied with this and was withholding the commission fee, the Agent initiated proceedings in the Small Claims Court.
I noted that the Seller was contractually obliged to pay the Agent's commission fee and they were entitled to take legal action to recover their unpaid invoice. It is not my role to rewrite agreed contractual terms. However, I considered that the Agent's service had fallen significantly short of an acceptable standard in several respects and I was not satisfied by their continued failure to address and respond to the Seller's concerns. I considered the early release of the key without the Seller's consent to be a serious breach of the Agent's duty of care which could have had significant consequences. I also found that the Agent had allowed a workman to visit the Property unattended without the Seller's consent, resulting in mud on the carpets. I considered their handling of her complaint to be particularly poor as they failed to send the Seller a final viewpoint letter or a copy of their complaints procedure explaining how she could pursue her complaint further until almost a month after issuing legal proceedings, and only did so then when these were specifically requested by the Seller. They also repeatedly tried to deal with the matter by telephone although the Seller had told them she could not take personal calls in working hours. Finally, I was particularly concerned to find that the Agent failed to inform the Court that the Seller had paid their commission fee in full three weeks before the hearing. She was therefore required to attend the hearing unnecessarily and had to take time off work to do so. The Court struck out the claim and awarded her costs of £30, which the Agent failed to pay.
I agreed that (apart from attending the hearing) the Seller had not been financially disadvantaged and I therefore considered her request for the return of the entire commission fee disproportionate. However, I made an award of £380 to compensate the Complainant for her Court costs and for the aggravation, distress and inconvenience that the Agent's shortcomings had caused her. I also directed the Agent to apologise in writing.
It is never advisable to allow a buyer access to a property to undertake works prior to completion occurring. If such access is requested, in accordance with Paragraph 8g of the TPO Code of Practice, the full reason for the buyer’s visit must be ascertained and the seller’s express written permission sought. Regardless of whether contracts have been exchanged, unless completion has occurred there is always a risk that the transaction may not complete.