Any contract law experts out there?

[et0609]

Looking for a bit of advice. Last year I went to a local company to sell my house. They were a firm of solicitors with an estate agency arm. I signed a contract accepting their T&C's. The main issue is I have decided to withdraw the property from the market and there is a fee to pay - Its extortionate. I wont go into the in's and out's but I was tied in to the contract indefinately or until the property sold. (thats how the local agents in my area do it, they are all the same).

Now, I want to fight it, the service I've had has been terrible. A few months ago, the company split into two seperate companies, one - a solicitor and one - an estate agent.

The contract I signed was with the solicitors, but my question is, does the contract transfer automatically to the new estate agent company or does this mean the contract is null and void because it was originally with the solicitors company?

So, in summary.....

XXXXXXXX Solicitors (with estate agent arm) Contract signed with them.

Now

XXXXXXXX Solicitors
and
XXXXXXXX Estate agents

Since they changed over it has been the new estate agent business that has been handling my sale.

The main man in charge is a solicitor so I really need to get my facts right before I challenge the contract.

Any advice would be very helpful. The internet hasn't really helped so far.

 

[davidjpowell]

Are they charging for advertising or just being awkward?

If the latter take the board down yourself, don't allow viewings and it ain't going to sell.

ETA When I worked in the field and people did this we withdrew the property and still charged the withdrawal fee so might not work.

 

[brucemillar]

It may be easier to sight a material breach of contract on the part of your agent(s). Stating that the terrible service that you have received (or services) that you did not receive put them in breach of their contract with you. If you have factual examples (not opinions or feelings) but real "you did not" -"You stated that" - "The viewers had not been advised that" Then you would I suggest have a case.

I did similar when I was treated really badly by a firm of agents/solicitors. In the face of facts they backed down by "mutual agreement"

Others may well be along with much better advice. I am not a qualified lawyer but do have commercial contract experience.

FYI: In my case I was selling a 300 year old thatched cottage in a hamlet of 5 similar properties. My examples included viewers (by appointment only) turning up who state "we were not told it was thatched" "the ceilings are too low" "It was not mentioned that this was a listed building".

We became convinced that the agent had a friend who wanted to buy but at a lower price (there was some anecdotal evidence to suggest that this was true) coupled with the agent continually suggesting that we should lower our price.

In the end I phoned the agent as a prospective buyer and asked all three of the questions to the answers above. You can guess their responses.

My wife then rang and said she was looking for a period cottage , preferably thatched, in a remote rural or hamlet location, that had real character. She stated a price that matched our asking price. She was told they nothing like that on their books.

Oh Dear. Ooops.

 

[TDE1]

It might be worth checking whether you have a Legal Expenses Policy attached to any household insurance you have. These policies often cover contract disputes, and the prospect of your legal fees being covered could persuade your opponents to capitulate.

 

[Charles Morgan]

This is not easy, given it is under Scottish Law (which I am not going to claim familiarity) but if under English law an indefinite contract with large penalties for cancellation may well be in breach of the Unfair Contract terms Act. As to the company splitting, if the party with which you contracted is the solicitor, check in the terms whether there is an assignment (or assignation) clause and what it says. It may make reference to successor entities but if not, their assignment of the contract without your consent to a third party may well be a breach on their part.

However, speak to a lawyer, especially if as TDE1 suggests above you may have legal expenses cover.

 

[et0609]

Thanks. I think I will speak with a lawyer. The contract doesnt mention their obligations or services to me or what they will do. Reading it, Im inclined to refuse to pay the withdrawal fee and see how far they take it. The fee is classed as an admin fee, but as I understand it, if it went to court they could only claim financial loss. So far, what they have done would have cost them very little. I'll get some advice.

 

[Dryce]

The contract I signed was with the solicitors, but my question is, does the contract transfer automatically to the new estate agent company or does this mean the contract is null and void because it was originally with the solicitors company?

Depends on the exact entity you signed with and whether the contract specifies that the contract can be assigned.

There may well be a clause relating to assignment which covers transferring the business of your contract with them to a third party.

Check the contract for their obligations to you.

Also try reading it. The majority of a contract will make sense to a lay person as long as they take the time to study it. Typically a % will be puffed up detail to cover odd contingencies and constrain their liability. A % will be boilerplate.

Solicitors tend to like to huff and puff (solicitor's letters are just that - letters). They hate going to court. (You'd think the opposite from the huffing and puffing - but they know how much it costs in terms of time and effort).

The principle of contracts having to be fair does still apply in Scotland. Moreover AIUI where you are a consumer dealing with a business and particularly where the contract is not negotiated then the balance is such that the business providing the contract should be able to demonstrate that the terms are fair rather than the other way around.