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*BUYING AND SELLING A PROPERTY THROUGH A THIRD PARTY
An estate agent is a go-between for people buying and selling property. He does not have to be professionally qualified, although many are. Since 1984 solicitors have been allowed to establish property centres to sell and buy houses on behalf of their clients. They cannot call themselves estate agents when dealing with property sales, and remain bound by their usual standards of professional conduct.
What a Esher estate agent does
An agent can advertise property in various ways - on a board outside the property, on a card in his own office window, in the Press and on the Internet.
He can advise on the best method of sale, the right asking price and the best time to sell. He my visit your home to inspect the property and fittings, gives his views on the condition of what he can see, measure up rooms and take photographs for advertising purposes.
You can instruct more than one estate agent to work for you. But an agent deals with many properties at the same time and is unlikely to give priority top yours if another agent also has a right to sell it.
There are two ways to give an estate agent exclusive rights - by giving him either sole agency or sole selling rights. Before agreeing to these terms, make sure that your solicitor approves.
What a sole agency means
If you agree to give a Esher Estate agent sole agency, you must not allow another one to try to sell or rent your property. If you do so, and the second agent finds a purchaser for your home, you will have to pay commission twice over -- once to the agent who introduced the purchaser and again to the firm top whom you gave sole agency.
The principle reason for appointing a sole agent does not always ensure that you get a better service.
If you impose a sole agent, impose a time limit -- say two months. If the agent has not found a purchaser by then, you are free to instruct someone else. Even if you have given someone sole agency , you are still free to try to sell your property yourself. If you find a purchaser yourself, then -- provided that no other agent is involved -- you do not have to pay commission.
A sole agent sometimes appoints another as his sub agent, to try to ensure a faster sale of your property. Even if you have two or more estate agents trying to sell your property, you pay commission only to your sole agent: it is for him to share it with sub agents.
What sole selling rights means
If you give an agent the sole selling right, as opposed to sole agency, you must pay him when the property is sold, even if you yourself found the purchaser and the agent appeared to have made little effort. Stipulate a time limit after which the sole selling right expires. The limit should be at the most 2 months, and preferably shorter.
A Esher estate agent's duty to a seller
An estate agents has a duty to obtain the best possible price for your property; he is employed by you and not the prospective buyer.
If you have accepted an offer from a purchaser and a higher one arrives before you have contracted to sell, the agent is legally bound to tell you.
What an agent can charge
An estate agent's commission is usually paid on a sliding scale according to the price received for the property. It includes all his out-of-pocket expenses, such as postage and advertising: he cannot ask you to pay separately for those unless you have specifically agreed to do so.
If the property is not sold, the estate agent receives no commission and has to pay his own expenses -- unless you have agreed to do so.
There is no uniform commission rate: different agents may charge different commission rates. They may vary between 1.75% and 3%, with a lower rate offered for a sole agency.
Always ask a Esher estate agent for a scale of charges and compare them with those of other firms in the area before you agree to let him act for you. Under the Estate Agents act 1979 an estate agent must tell his clients what his charges will be, or how they will be calculated. If he fails to do so he may lose his legal right to his charges, even if he is successful in arranging a sale.
The court will take into account whether the client suffered any loss or damage by the agent's failure to give the necessary information and whether the agent acted deliberately or not.
When commission is paid
Commission is not usually paid until the sale is completed. The seller's solicitor then normally pays the agent direct from the purchase price.
Sometimes an agent may try to get his commission before the sale is complete. Do not agree to any terms which state that commission is payable before a sale is completed -- for example, 'on exchange of contracts' or 'introducing a person ready, willing and able to purchase'. If you do so the agent may claim commission even if the sale falls through.
If, after exchanging contracts the buyer withdraws, the seller can sue him for breach of contract and the damage involved and the loss incurred. But he cannot normally sue the buyer for any commission paid to an agent.
Under the Estate Agents Act 1979, an estate agents must give to his client information about the circumstances by which the client becomes liable to pay his charges. There is no control over what these terms are. They remain a matter for agreement by the client.
Read carefully any form or letter that you receive from the estate agent, whether the firm has signed or not. If you do not agree with what a document says, or are not sure of what it means, write to the firm and say so at once. If you sign something or are sent a form and do not reject it, you may find you are bound by unacceptable terms to pay premature commission.
Buying through a Esher estate agent
A prospective buyer may engage an estate agent to find him a suitable house or may simply ask for a list of available properties. There is no charge fort the estate agent's services or for a supply of his property lists, unless you have specifically agreed to pay.
An agent paid by a seller could not seek payment from a purchaser as well -- he can serve only one of them. If he is hired by the buyer he owes him a duty of good faith and competence.
The estate agents is paid by the seller and is not legally obliged to tell a prospective buyer everything about a prospective property. He need not, for example, point out defect in a property or answer your questions about it. But anything he does choose to tell you about a property must be true.
For example, he need not mention that roof tiles need replacing, but he must not falsely describe the roof as being in good, sound condition.
Paying a deposit
When a suitable property is found, an estate agent may ask the prospective buyer to pay an immediate small deposit of a few hundred pounds, and its purpose is psychological -- to assure the seller that the buyer is seriously interested in the property.
A prospective buyer is not legally obliged to pay a 'goodwill deposit'. If he does pay and then decides not to buy the property, his money must be returned providing he has not signed a binding contract to buy the property.
The binding contract usually requires the buyer to pay a deposit of 10 percent of the purchase price when the contracts are exchanged.
It is advisable for the contract to specify that the person to whom it is paid should hold the money as 'stake-holder'. the deposit is often paid to the seller's solicitor, but nay sometimes be payable to the seller's estate agents.
When the deposit is received by the stake holder, he may not pass the money on to the seller unless the buyer gives him permission. This is not usually given until the sale is finally completed. In the same way, the money cannot be returned to the buyer without the seller's permission.
Where the deposit must go
Solicitors and estate agents have to put the money into a special 'clients' account' at a bank to keep it separate from their own. This applies to both 'goodwill' deposits' and to deposits paid on exchange of contracts. As far as estate agents are concerned, the law only makes a client account compulsory if the property being sold is in the United Kingdom. So if property abroad is being purchased, it is best to pay any deposit to a solicitor.
If the money in the client account of a solicitor or estate agent earns interest, he can usually keep it for himself.
When the relevant regulations under the Estate Agents Act 1979 are made, an estate Agent will not be permitted to take a deposit unless he has insurance to cover the loss of clients' money. Failure to have approved insurance cover will make it a criminal offence to take a deposit
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