Beware! Rouge Estate Agents and Unfair Agreement Terms :: Penyards Country Properties Graham Evans
This issue is still not resolved other than the victims being in receipt of recovery litigation so advice would be appreciated.
This is a sobering tale that begs to be read, digested and shared as it affects everyone who is, or considering selling their property through an estate agent in the UK.
The warning concerns a simple, apparently innoceuous term in an estate agent’s agreement such as that in Penyard’s Country Properties that when coupled with an ‘allegedly’ aggressive and unscrupulous agent can have massive implications.
‘You will be liable to pay our fees … if unconditional contracts for the sale of the property are exchanged after the expiry of the period which we have sole selling rights but a particular purchaser who was introduced to you during that period or with whom we had negotiations…’
This term will appear in many agency agreements even though it appears to breach the unfair contract act, various professional body codes and has strict conditions of use.A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.(The Unfair Terms in Consumer Contracts Regulations)
This particular case concerns a property agent Graham Evans of Penyards Country Properties Winchester, Lyndhurst; a case so severe it defies all rationale.
According to the National Association of Estate Agent’s Code of Practise main clause is that members will not bring the industry sector into disrepute.
According to the latests victims of this particular clause they say ‘We are currently under what can only be described as an attack of the utmost severity by this agent. He is out of control and on a personal crusade. He has not only verbally attacked us relentlessly but also anyone who has tried to help including other estate agents.’
‘Evans’ latest comment beautifully represents his entire attitude and the tone we’ve endured’ for three years say the victims. ‘This is in response to our reasonable and polite request recently seeking an abatement in proceeding whilst awaiting adjudication from the a recent The Property Ombusdman complaint we submitted: I will bankrupt yourself and Mrs xxxxx at the earliest moment that papers can be served. You do not determine when this debt is paid, I do!’
This is a story that should be shared and demonstrates the lengths an estate agent will go to in pursuit of fees that according to The Property Ombudsman Code of Practice and Unfair Contract Terms Act they are NOT entitled to. The clause that has caused all this trouble in the agency agreement appears to clearly be in breech of the act yet Evans has managed to leverage it to such a degree that a family ‘are in fear for their future’.
‘We are a hard working family who put our home on the market to start a new life in New Zealand. We were totally unsatisfied with Lisa Evans and the service from Penyards so terminated their contract. They breached our clear instructions on numerous occasions and we felt they would say and do anything to get a sale including negotiating all our belongings as part of a deal. Some eighteen months later we sold our property through a new agent. Penyards began a campaign of unprecedented harassment for a fee they claimed they were entitled to because our buyer viewed with them previously, regardless of the fact they failed to secure a sale and breached their duty of care to us.
An agency fee of some £20,000 have now been leveraged to nearly £50,000 which Evans is now seeking with utmost aggression and generating costs at every opportunity.
We have secured the money should it be necessary by extending the mortgage but it’s taking time as we need to submit accounts. When we told Evans his response is clear - 'I will bankrupt you!'
We asked the agent to justify their claim in the first instance and even go to arbitration but we’re met with aggression and threats of court action from the outset which was ultimately proceeded with. This agent has managed to court judgement made by ‘default' as the court failed to present our defence. Something made even more difficult as we were abroad.
Now our family's new life is in jeopardy. We stand to lose our new home, be made bankrupt and as a result fail in our immigration application and be thrown out of New Zealand.’
A complaint has been made to The property Ombudsman and an agent is supposed to have a full complaints procedure but when the complaint was submitted and copied into Evans at Penyards this was the reply:
'You continue to be deluded, you misrepresent yourself and, to their great misfortune, those who have endeavoured to advise to the point of embarrassment. You have had your time and will be granted no more, my instructions are irrevocable.'
The complaint is reproduced here in the interests of readers and open debate - the contents are something the public need to familiarise themselves with as regulation is made doubly difficult when people like Evans refuse to abide by trules and do not sign up to The National Association of Estate Agents scheme.
The lesson that needs to be taken from this when selling a property in the UK is ENSURE THAT CLAUSES SUCH AS THE ONE IN QUESTION ARE STRUCK OUT OF ANY AGREEMENT YOU MAKE WITH AN ESTATE AGENT.
IF AN AGENT FAILS TO SECURE A SALE THEN THEY SHOULD HAVE NO RIGHT TO CLAIM ANYTHING ONCE THE CONTRACT IS TERMINATED UNLESS SPECIFICALLY NEGOTIATED.
Complaint submitted to The Property Ombudsman this week
Penyards Estate Agents Regarding Graham Evans, Lisa Evans
Gross Professional Misconduct
Multiple breaches of NAEA Code of Conduct
Multiple breaches of NFoPP Conduct and Membership Rules
Breach The Unfair Terms in Consumer Contracts Regulations
Complaint Overview
Penyards have acted in a wholly unprofessional manner with regard to a claim for a fee. They are in breach of multiple clauses in the Code of Practices as outlined causing severe distress and financial loss to their clients XXXXX.
Estate Agents are legally obliged to put their client’s interests above anyone else’s. They must obey their client’s lawful instructions.
We outline below multiple instances of failure to uphold the client’s best interests and obey their instructions. We further outline the harassment, intimidation and deceitful practices in pursuit of a fee that according to all established rules of conduct and law, Penyards are not entitled to claim.
1. Fair Contracts
On 14th February 2012 the contract was sent via email. Clause 10 breaches the The Unfair Terms in Consumer Contracts Regulations 1999.
Clause 10.1.2 was not negotiated and standard terms supplied by email. Clause 10.1.2 was highly geared in favour of Penyards in that it was not further defined, had no limitation (6 months) and was relied upon to cause significant distress and financial loss to the client.
3f Your Terms of Business and your contract must be consistent with the provisions of this Code of Practice and comply with the Unfair Terms in Consumer Contracts Regulations 1999 (as amended)
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
2. Signing
On 14th February a blank, unsigned contract was forwarded by email in breach of the code of practice
3t You must sign and date your Terms of Business before they are given to your client. The client should be asked to sign and be given a copy to retain. The client must be given sufficient time to read them before agreeing to instruct you (refer also to paragraph 3l above).
3. Duty of care
On multiple occasions Penyards failed in their duty of care to the client.
o They were specifically instructed not to tell viewers that the vendors were currently abroad. The reasoning is that it created an expectation that could not be delivered.
o Despite our specific written and verbal instructions on multiple occasions to promote the ‘significant qualities’ of the property every offer came with negotiations around our personal property and a lengthy mail as to why we should ‘drop the price’.
o One offer was for with and without the entire contents and all offers revolved around our position of being abroad.
o These negotiations were in breach of our instructions, our trust and the code of practice duty of care.
From Trading Standards Department If a real estate agent behaves in a way, which puts pressure on a client, they are in breach of the Real Estate Agents’ Code of Professional Conduct and Client Care.
4. Termination of contract
On 20th March 2013 an email was acknowledged by Penyards to terminate the contract. This decision was made due to (3).
o On receipt of termination Lisa Evans claimed:
‘The property has just gone into Hampshire Life which came out yesterday and already we have received some enquiries from it.’
o On looking at the publication there was no advert.
o In making this false statement there is a further breach of 1 of the code of practice.
o On 23rd March 2013 our instructions to terminate had to be re-enforced as Mrs Evans again referred to the false marketing claim:
‘Moving forward we want to try a fresh approach. So the previous email dated the 20th march 2013, still stands.’ (terminate the contract)
o Again, Lisa Evans failed to follow instructions: ‘Given all we have done though and are trying to do, I don't see why the property cannot stay with us and in conjunction with another agent.’
o 24th March we had to again instruct Mrs Evans to remove our property from the market:
‘please take the property off the market.’
o 25th March again Mrs Evans refuses to remove our property from the market and continues to attempt to retain us as clients: ‘
Sorry forgot to say as a result of the price reduction you made a few weeks ago the property is also featured in the National magazine Country and Town House which comes out around the 5th of April too. given this magazine is normally paid for by the client and we have done it free of charge, surely it is only fair that we can continue to market throughout April?’
On termination of contract Penyards were obliged to follow 3n of the code of practice. They failed to do so.
3n On receipt of the client’s instruction, or on your own decision, to terminate your instruction, you must promptly give him written confirmation that you are no longer acting for him, confirm the actual date of termination, and give details of any fees or additional costs the client owes you.
5. Fee Entitlement and Client Liability
Penyards breached all points of the code of practice with regard to termination of contract
3q At the time of accepting instructions from a client, you must point out and explain clearly to that client in your written Terms of Business:
o that you may be entitled to a commission fee if that client terminates your instruction and a buyer that you have introduced goes on to exchange contracts on the property through another agent within 6 months of the date your instruction ended..
3r At the time of the termination of the instruction, you must explain clearly in writing any continuing liability the client may have to pay you a commission fee and any
circumstances in which he may otherwise have to pay more than one commission fee.
6. Harassment
Harass/Harassment. Means to act in a threatening or oppressive manner likely to cause alarm, annoyance and/or distress.
o In May 2013 a new agent was appointed and a new marketing campaign initiated.
o In July 2013 an offer was accepted through the new agents and contracts subsequently exchanged. More than the statutory six months after the termination of Penyard’s contract.
General duty to uphold high standards of ethical and professional behaviour
12.1 No member shall do any act (whether in his business or otherwise) which:
12.1.1 Involves dishonesty, deceitful behaviour, or misrepresentation; or 12.1.2 Involves unprofessional practice or practice that is unfair to members of the public; or
12.1.3 In any other way brings the NFoPP or any of its divisions or subsidiaries into disrepute.
o Lisa Evans made multiple breaches of this clause and was deceitful in her handling of the termination by stating that she had placed adverts in publications, which was simply untrue.
o Early July a number of unsolicited emails were received from Lisa Evans. She was a personal friend of Ms Clarke, the partner of Mr XXXXXX (purchaser) and had heard that he was now looking at property in the area again. The aim of Evans was to ‘try to negotiate a deal’ however it would be significantly low:
‘whilst they would still be interested in pursuing Holly Lodge it would only be at significantly less than the offer that had been accepted last time.’
o We were made aware that she had advised the XXXXXXs that the vendors may accept an offer as low as £1.1m
o After a number of typically aggressive emails where Evans began referring to their entitlement to a fee and that she ‘didn’t want us to be liable for two fees.
o On 10th July Evans was instructed to stop harassing all parties concerned and to deal with the current agents:
‘YOU ARE INSTRUCTED TO DEAL WITH ROB.
YOU ARE TO HAVE NO CONTRACT WITH US AND I WILL DEAL WITH YOUR AGENTS COMMENTS TO THE XXXXXXS TO OFFER £1.1 LATER.
DO NOT COMMUNICATE WITH US OR THE XXXXXXS FURTHER.’
o The low offer was later addressed with Mrs Evans by way of comments made to the new agent by Mr XXXXXX. Mr XXXXXX had confirmed that Mrs Evans had suggested that the property could be obtained for £1.1M
o Mrs Evans attacked the the agents and suggested that they were ‘lying’.
3b You must not directly or indirectly harass any person in order to gain instructions. Nor must you repeatedly try to gain instructions in a way likely to cause offence.
o At this point there is no sale or exchange of contracts.
No agency fee is due to anyone yet on 3rd August an email was received from Graham Evans. In it he advices that he had been trying to contact our lawyer who didn’t want to take the calls as there was nothing to discuss. At this point Evans is already making threats:
‘Following my last email I have now left two messages for your lawyer and the previous communication, all of which have failed to receive either an acknowledgement or confirmation.
In the event that you fail to respond to this confirming, as in the attached email, our introduction and entitlement to our fee then our company Dutton Gregory have my instructions to apply to the court for a freezing order on Monday to ensure that our rightful demand for payment is met and that any expenses liabilities that are incurred in pursuit of this will also form part of our claim.’
o 4th Aug 2013. We received a phone call at approx 2am GMT where Mr Evans appeared drunk, slurring threats to ‘get my money’ and ‘freeze our assets’. The conversation was terminated and an email sent:
‘I am very surprised you would choose to call us on a Sunday afternoon, which is 1.30am for you. I have have recently received messages from our solicitor that you are leaving messages on his phone also. This is not normal behaviour! ‘
I've received your email and will choose to answer it in my own time.
For the record there is no contracted sale at this point. When there is I will address your comments. Until such time AGAIN you are requested to stop contacting all parties concerned.’
o Throughout that day further emails and threats were received from Evans. 4th August was supposed to be our daughter’s birthday party but it was ruined by Evan’s actions causing sever upset and distress.
o In summary and in response to the overwhelming harassment on 4th August it was suggested that Evans seek a third party clarification of his entitlement or we seek mediation.
o The response from Evans was not only intimidatory, highly unprofessional but shocking:
‘II think given the spurious nature of your response I am more than content to leave this to the lawyers and judges to adjudicate over the position. You may however be advised that I will be relentless in my pursuit of this by fair and legal means.
o On 5th August it was decided that we would seek a ruling from TPO.
In-house Complaints Handling
o Penyards failed to handle the complaint before Ombudsman in breach of code 13 of the code of practice.
Complaint Handling
As set out in the NFoPP Conduct and Membership Rules, a Member must have an in-house complaints procedure (appropriate to its size and structure) and any person wishing to make a formal written complaint about the standards of service received must be made aware (in writing) of those procedures upon request. Following the conclusion of the Member Firm’s in-house complaint process, where an impasse has been reached or a complainant remains unsatisfied; the complainant must be informed of the contact details for APIP should they wish to pursue their complaint.
o On 5th August a full complaint was sent to Penyards.
o Evan’s failed to follow any form of complaint procedure whatsoever. Bearing in mind we were seeking clarification of Penyard’s entitlement and attempting to avoid further conflict and potential costs.
o On 5th August Evans responded to the complaint:
‘As stated in my communication yesterday the matter has now been refereed to our company solicitors who have my instructions to proceed to protect my firms interest in this and to instigate the procedures for a freezing order.’
o On 7th August a complaint was made to TPO.033877
o Unfortunately the ombudsman could not make a decision on the entitlement to a fee as at that stage there simply was no sale.
o During this time Mr XXXXXX had to be made aware of the harassment and threats to freeze the sale almost resulting in the loss of the sale on several occasions.
o During this time Evan’s threats we’re now being made through his solicitor who also refused to seek mediation.
o On 21st August Rob Batton from Spencers (new Agents) attempted to resolve the situation by liaising directly with Evans. He had sought advice from their lawyers and NAEA. The conclusion was that despite everything, Penyards could not prove to be ‘the effective cause of the sale’ therefore were not entitled to a fee. However, Batton was still willing to talk it through as outlined in a letter dated 15th August:
Further to our conversation in recent days I thought I should respond to clarify our position in regard to the recently agreed sale to Mr XXXXXX. We have today taken both legal advice and also discussed the situation in detail with the National Association of Estate Agents’ dispute department. In both cases the advice has been very clear in terms of our introduction.
Payment of commission to an estate agent is due when that agent was the ‘effective cause’ of a successful sale, meaning it was as a direct result of their actions that the buyer proceeded to complete the purchase. Whilst no one is denying that Penyards had previous dealings with Mr XXXXXX a little under a year ago their claim is, at best, highly tenuous as they were obviously not the ‘effective cause’ in selling the property, in fact the sale fell through so that would suggest they were quite the opposite.
The NAEA noted with interest, that this is a completely fresh marketing campaign, asking price and sale price and therefore bears no resemblance to the previous marketing carried out by Penyards. This would further endorse the view that they were not the ‘effective cause’.
o Evans responded in the most unprofessional and insulting manner in a letter on 21st August:
‘Now let us address these differing professional standards. I will also deal with the expression you have used in your letter to Dutton Gregory dated 14th August ‘normal professional etiquette’. I am bewildered by your double standards, or should I in fact so no apparent standards at all, you have completely and utterly contradicted everything that you have previously held as credible and honourable. It reminds me of the old western movies, ‘cowboys’ speak with forktongue.’
o Despite requests from several parties for clarification and even mediation, Evans’ final position was:
‘I refer to my previous statements confirming our position. That is that once contracts have been exchanged if it is not confirmed that we will receive our fee in accordance with our terms and conditions of business Dutton Gregory will be issued with instructions to immediately instigate legal proceedings.
Having stated the above and as a matter of mediation I will however make one concession. This is subject to confirmation in writing from the vendors solicitors that we will be paid in full and final settlement on the date of completion and that these are irrevocable instructions. I will accept 1% plus VAT. This however is to be confirmed in writing no later than12 noon on Tuesday 27th August.’
o On 24th August Dutton Gregory attempted to contact xxxxx with a threat to instigate legal proceedings and claim £21,750 to an email we were having issues with XXXXX. Having checked our servers a bounced mail notification found and was forwarded directly to Dutton Gregory. The mail showed that there was an issue and that mails sent to that address would most likely bounce:
Mail was not delivered to the following recipients: XXXXX Reply text:550 User 'spam' Unknown
o Evans had several contacts for us including our physical address and numerous email contacts but failed to send any papers to any alternative address.
o The sale finally was concluded some SEVEN months after termination of contract
o Nothing more was heard from Evans or their solicitors and it was assumed that they had accepted their inability to claim a fee.
o Sometime in June 2014 we were shocked to receive court papers via a private detective at our home in New Zealand. It was from Penyards claiming fees plus ‘substantial’ costs.
o A defence was submitted by email and by post, it was acknowledged by the courts and further amended documents were sent.
o Nothing more was heard and we perhaps naively, assumed the case was won until we found paperwork some months later during Christmas 2014 at an address we no longer lived at.
o It appears that despite receiving numerous bounces to the email address xxxxx and having employed a detective to locate our current address, important papers were sent only to undeliverable addresses.
o To our amazement the papers outline a judgment was made in favour of Penyards by ‘default’. The court had failed to present our defence. The fee had been awarded plus substantial costs.
o On discovering this paperwork we instructed UK solicitors at yet more cost (£6k) to have it set aside however, due to the time delays they were skeptical.
o We felt we had no choice other than to have our defence heard so instructed our solicitors to try and have the judgement set aside.
o By sending paperwork to undeliverable addresses Penyards had manufactured an undefendable position for us. This was further compounded by trying to seek competent legal advice from New Zealand. The only way to communicate was by email or calls late at night putting us at a severe disadvantage and considerable costs.
o 26th February the judge ruled not to set aside the default judgment mainly due to the delay:
‘The judge held that it would not be proportionate to set aside judgment given the costs that had been incurred - as judgment had been given long ago and costs had been assessed. He referred to the delay point.’
o On 13th March 2015 a letter was received from Pitt&Moore an New Zealand company now instructed by Penyards.
o It now appears that now Penyard’s are at enforcement stage they have chosen to use the correct address.
o Costs are now in the region of £26,000 plus the default judgment. The letter regards enforcement and the threat of bankruptcy. This could result in the loss of our home in New Zealand and affect our immigration.
All Correspondence in support of this complaint are available.
Disclaimer: We make all attempts and efforts to ensure the information in this article is accurate and reliable. We are neither liable nor responsible for any inaccurate information that may be viewed on this website. We reserve the right to make changes to and/or remove information on this website at our own discretion without providing notice to our users. We are not liable for any errors, financial loss, or damages of any kind that may result from use of, or reliance on, the information herein, and/or on this website. We make every effort to maintain the quality of information contained on this website. We are not liable for any content that may be deemed offensive, suggestive and, or inappropriate by our users. The information on this website is proprietary, copyrighted and protected by applicable copyright laws.
Penyards Country Properties Reviews
Beware! Rouge Estate Agents and Unfair Agreement Terms :: Penyards Country Properties Graham Evans
This issue is still not resolved other than the victims being in receipt of recovery litigation so advice would be appreciated.
This is a sobering tale that begs to be read, digested and shared as it affects everyone who is, or considering selling their property through an estate agent in the UK.
The warning concerns a simple, apparently innoceuous term in an estate agent’s agreement such as that in Penyard’s Country Properties that when coupled with an ‘allegedly’ aggressive and unscrupulous agent can have massive implications.
‘You will be liable to pay our fees … if unconditional contracts for the sale of the property are exchanged after the expiry of the period which we have sole selling rights but a particular purchaser who was introduced to you during that period or with whom we had negotiations…’
This term will appear in many agency agreements even though it appears to breach the unfair contract act, various professional body codes and has strict conditions of use.A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.(The Unfair Terms in Consumer Contracts Regulations)
This particular case concerns a property agent Graham Evans of Penyards Country Properties Winchester, Lyndhurst; a case so severe it defies all rationale.
According to the National Association of Estate Agent’s Code of Practise main clause is that members will not bring the industry sector into disrepute.
According to the latests victims of this particular clause they say ‘We are currently under what can only be described as an attack of the utmost severity by this agent. He is out of control and on a personal crusade. He has not only verbally attacked us relentlessly but also anyone who has tried to help including other estate agents.’
‘Evans’ latest comment beautifully represents his entire attitude and the tone we’ve endured’ for three years say the victims. ‘This is in response to our reasonable and polite request recently seeking an abatement in proceeding whilst awaiting adjudication from the a recent The Property Ombusdman complaint we submitted: I will bankrupt yourself and Mrs xxxxx at the earliest moment that papers can be served. You do not determine when this debt is paid, I do!’
This is a story that should be shared and demonstrates the lengths an estate agent will go to in pursuit of fees that according to The Property Ombudsman Code of Practice and Unfair Contract Terms Act they are NOT entitled to. The clause that has caused all this trouble in the agency agreement appears to clearly be in breech of the act yet Evans has managed to leverage it to such a degree that a family ‘are in fear for their future’.
‘We are a hard working family who put our home on the market to start a new life in New Zealand. We were totally unsatisfied with Lisa Evans and the service from Penyards so terminated their contract. They breached our clear instructions on numerous occasions and we felt they would say and do anything to get a sale including negotiating all our belongings as part of a deal. Some eighteen months later we sold our property through a new agent. Penyards began a campaign of unprecedented harassment for a fee they claimed they were entitled to because our buyer viewed with them previously, regardless of the fact they failed to secure a sale and breached their duty of care to us.
An agency fee of some £20,000 have now been leveraged to nearly £50,000 which Evans is now seeking with utmost aggression and generating costs at every opportunity.
We have secured the money should it be necessary by extending the mortgage but it’s taking time as we need to submit accounts. When we told Evans his response is clear - 'I will bankrupt you!'
We asked the agent to justify their claim in the first instance and even go to arbitration but we’re met with aggression and threats of court action from the outset which was ultimately proceeded with. This agent has managed to court judgement made by ‘default' as the court failed to present our defence. Something made even more difficult as we were abroad.
Now our family's new life is in jeopardy. We stand to lose our new home, be made bankrupt and as a result fail in our immigration application and be thrown out of New Zealand.’
A complaint has been made to The property Ombudsman and an agent is supposed to have a full complaints procedure but when the complaint was submitted and copied into Evans at Penyards this was the reply:
'You continue to be deluded, you misrepresent yourself and, to their great misfortune, those who have endeavoured to advise to the point of embarrassment. You have had your time and will be granted no more, my instructions are irrevocable.'
The complaint is reproduced here in the interests of readers and open debate - the contents are something the public need to familiarise themselves with as regulation is made doubly difficult when people like Evans refuse to abide by trules and do not sign up to The National Association of Estate Agents scheme.
The lesson that needs to be taken from this when selling a property in the UK is ENSURE THAT CLAUSES SUCH AS THE ONE IN QUESTION ARE STRUCK OUT OF ANY AGREEMENT YOU MAKE WITH AN ESTATE AGENT.
IF AN AGENT FAILS TO SECURE A SALE THEN THEY SHOULD HAVE NO RIGHT TO CLAIM ANYTHING ONCE THE CONTRACT IS TERMINATED UNLESS SPECIFICALLY NEGOTIATED.
Complaint submitted to The Property Ombudsman this week
Penyards Estate Agents Regarding Graham Evans, Lisa Evans
Gross Professional Misconduct
Multiple breaches of NAEA Code of Conduct
Multiple breaches of NFoPP Conduct and Membership Rules
Breach The Unfair Terms in Consumer Contracts Regulations
Complaint Overview
Penyards have acted in a wholly unprofessional manner with regard to a claim for a fee. They are in breach of multiple clauses in the Code of Practices as outlined causing severe distress and financial loss to their clients XXXXX.
Estate Agents are legally obliged to put their client’s interests above anyone else’s. They must obey their client’s lawful instructions.
We outline below multiple instances of failure to uphold the client’s best interests and obey their instructions. We further outline the harassment, intimidation and deceitful practices in pursuit of a fee that according to all established rules of conduct and law, Penyards are not entitled to claim.
1. Fair Contracts
On 14th February 2012 the contract was sent via email. Clause 10 breaches the The Unfair Terms in Consumer Contracts Regulations 1999.
Clause 10.1.2 was not negotiated and standard terms supplied by email. Clause 10.1.2 was highly geared in favour of Penyards in that it was not further defined, had no limitation (6 months) and was relied upon to cause significant distress and financial loss to the client.
3f Your Terms of Business and your contract must be consistent with the provisions of this Code of Practice and comply with the Unfair Terms in Consumer Contracts Regulations 1999 (as amended)
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
2. Signing
On 14th February a blank, unsigned contract was forwarded by email in breach of the code of practice
3t You must sign and date your Terms of Business before they are given to your client. The client should be asked to sign and be given a copy to retain. The client must be given sufficient time to read them before agreeing to instruct you (refer also to paragraph 3l above).
3. Duty of care
On multiple occasions Penyards failed in their duty of care to the client.
o They were specifically instructed not to tell viewers that the vendors were currently abroad. The reasoning is that it created an expectation that could not be delivered.
o Despite our specific written and verbal instructions on multiple occasions to promote the ‘significant qualities’ of the property every offer came with negotiations around our personal property and a lengthy mail as to why we should ‘drop the price’.
o One offer was for with and without the entire contents and all offers revolved around our position of being abroad.
o These negotiations were in breach of our instructions, our trust and the code of practice duty of care.
From Trading Standards Department If a real estate agent behaves in a way, which puts pressure on a client, they are in breach of the Real Estate Agents’ Code of Professional Conduct and Client Care.
4. Termination of contract
On 20th March 2013 an email was acknowledged by Penyards to terminate the contract. This decision was made due to (3).
o On receipt of termination Lisa Evans claimed:
‘The property has just gone into Hampshire Life which came out yesterday and already we have received some enquiries from it.’
o On looking at the publication there was no advert.
o In making this false statement there is a further breach of 1 of the code of practice.
o On 23rd March 2013 our instructions to terminate had to be re-enforced as Mrs Evans again referred to the false marketing claim:
‘Moving forward we want to try a fresh approach. So the previous email dated the 20th march 2013, still stands.’ (terminate the contract)
o Again, Lisa Evans failed to follow instructions: ‘Given all we have done though and are trying to do, I don't see why the property cannot stay with us and in conjunction with another agent.’
o 24th March we had to again instruct Mrs Evans to remove our property from the market:
‘please take the property off the market.’
o 25th March again Mrs Evans refuses to remove our property from the market and continues to attempt to retain us as clients: ‘
Sorry forgot to say as a result of the price reduction you made a few weeks ago the property is also featured in the National magazine Country and Town House which comes out around the 5th of April too. given this magazine is normally paid for by the client and we have done it free of charge, surely it is only fair that we can continue to market throughout April?’
On termination of contract Penyards were obliged to follow 3n of the code of practice. They failed to do so.
3n On receipt of the client’s instruction, or on your own decision, to terminate your instruction, you must promptly give him written confirmation that you are no longer acting for him, confirm the actual date of termination, and give details of any fees or additional costs the client owes you.
5. Fee Entitlement and Client Liability
Penyards breached all points of the code of practice with regard to termination of contract
3q At the time of accepting instructions from a client, you must point out and explain clearly to that client in your written Terms of Business:
o that you may be entitled to a commission fee if that client terminates your instruction and a buyer that you have introduced goes on to exchange contracts on the property through another agent within 6 months of the date your instruction ended..
3r At the time of the termination of the instruction, you must explain clearly in writing any continuing liability the client may have to pay you a commission fee and any
circumstances in which he may otherwise have to pay more than one commission fee.
6. Harassment
Harass/Harassment. Means to act in a threatening or oppressive manner likely to cause alarm, annoyance and/or distress.
o In May 2013 a new agent was appointed and a new marketing campaign initiated.
o In July 2013 an offer was accepted through the new agents and contracts subsequently exchanged. More than the statutory six months after the termination of Penyard’s contract.
General duty to uphold high standards of ethical and professional behaviour
12.1 No member shall do any act (whether in his business or otherwise) which:
12.1.1 Involves dishonesty, deceitful behaviour, or misrepresentation; or 12.1.2 Involves unprofessional practice or practice that is unfair to members of the public; or
12.1.3 In any other way brings the NFoPP or any of its divisions or subsidiaries into disrepute.
o Lisa Evans made multiple breaches of this clause and was deceitful in her handling of the termination by stating that she had placed adverts in publications, which was simply untrue.
o Early July a number of unsolicited emails were received from Lisa Evans. She was a personal friend of Ms Clarke, the partner of Mr XXXXXX (purchaser) and had heard that he was now looking at property in the area again. The aim of Evans was to ‘try to negotiate a deal’ however it would be significantly low:
‘whilst they would still be interested in pursuing Holly Lodge it would only be at significantly less than the offer that had been accepted last time.’
o We were made aware that she had advised the XXXXXXs that the vendors may accept an offer as low as £1.1m
o After a number of typically aggressive emails where Evans began referring to their entitlement to a fee and that she ‘didn’t want us to be liable for two fees.
o On 10th July Evans was instructed to stop harassing all parties concerned and to deal with the current agents:
‘YOU ARE INSTRUCTED TO DEAL WITH ROB.
YOU ARE TO HAVE NO CONTRACT WITH US AND I WILL DEAL WITH YOUR AGENTS COMMENTS TO THE XXXXXXS TO OFFER £1.1 LATER.
DO NOT COMMUNICATE WITH US OR THE XXXXXXS FURTHER.’
o The low offer was later addressed with Mrs Evans by way of comments made to the new agent by Mr XXXXXX. Mr XXXXXX had confirmed that Mrs Evans had suggested that the property could be obtained for £1.1M
o Mrs Evans attacked the the agents and suggested that they were ‘lying’.
3b You must not directly or indirectly harass any person in order to gain instructions. Nor must you repeatedly try to gain instructions in a way likely to cause offence.
o At this point there is no sale or exchange of contracts.
No agency fee is due to anyone yet on 3rd August an email was received from Graham Evans. In it he advices that he had been trying to contact our lawyer who didn’t want to take the calls as there was nothing to discuss. At this point Evans is already making threats:
‘Following my last email I have now left two messages for your lawyer and the previous communication, all of which have failed to receive either an acknowledgement or confirmation.
In the event that you fail to respond to this confirming, as in the attached email, our introduction and entitlement to our fee then our company Dutton Gregory have my instructions to apply to the court for a freezing order on Monday to ensure that our rightful demand for payment is met and that any expenses liabilities that are incurred in pursuit of this will also form part of our claim.’
o 4th Aug 2013. We received a phone call at approx 2am GMT where Mr Evans appeared drunk, slurring threats to ‘get my money’ and ‘freeze our assets’. The conversation was terminated and an email sent:
‘I am very surprised you would choose to call us on a Sunday afternoon, which is 1.30am for you. I have have recently received messages from our solicitor that you are leaving messages on his phone also. This is not normal behaviour! ‘
I've received your email and will choose to answer it in my own time.
For the record there is no contracted sale at this point. When there is I will address your comments. Until such time AGAIN you are requested to stop contacting all parties concerned.’
o Throughout that day further emails and threats were received from Evans. 4th August was supposed to be our daughter’s birthday party but it was ruined by Evan’s actions causing sever upset and distress.
o In summary and in response to the overwhelming harassment on 4th August it was suggested that Evans seek a third party clarification of his entitlement or we seek mediation.
o The response from Evans was not only intimidatory, highly unprofessional but shocking:
‘II think given the spurious nature of your response I am more than content to leave this to the lawyers and judges to adjudicate over the position. You may however be advised that I will be relentless in my pursuit of this by fair and legal means.
o On 5th August it was decided that we would seek a ruling from TPO.
In-house Complaints Handling
o Penyards failed to handle the complaint before Ombudsman in breach of code 13 of the code of practice.
Complaint Handling
As set out in the NFoPP Conduct and Membership Rules, a Member must have an in-house complaints procedure (appropriate to its size and structure) and any person wishing to make a formal written complaint about the standards of service received must be made aware (in writing) of those procedures upon request. Following the conclusion of the Member Firm’s in-house complaint process, where an impasse has been reached or a complainant remains unsatisfied; the complainant must be informed of the contact details for APIP should they wish to pursue their complaint.
o On 5th August a full complaint was sent to Penyards.
o Evan’s failed to follow any form of complaint procedure whatsoever. Bearing in mind we were seeking clarification of Penyard’s entitlement and attempting to avoid further conflict and potential costs.
o On 5th August Evans responded to the complaint:
‘As stated in my communication yesterday the matter has now been refereed to our company solicitors who have my instructions to proceed to protect my firms interest in this and to instigate the procedures for a freezing order.’
o On 7th August a complaint was made to TPO.033877
o Unfortunately the ombudsman could not make a decision on the entitlement to a fee as at that stage there simply was no sale.
o During this time Mr XXXXXX had to be made aware of the harassment and threats to freeze the sale almost resulting in the loss of the sale on several occasions.
o During this time Evan’s threats we’re now being made through his solicitor who also refused to seek mediation.
o On 21st August Rob Batton from Spencers (new Agents) attempted to resolve the situation by liaising directly with Evans. He had sought advice from their lawyers and NAEA. The conclusion was that despite everything, Penyards could not prove to be ‘the effective cause of the sale’ therefore were not entitled to a fee. However, Batton was still willing to talk it through as outlined in a letter dated 15th August:
Further to our conversation in recent days I thought I should respond to clarify our position in regard to the recently agreed sale to Mr XXXXXX. We have today taken both legal advice and also discussed the situation in detail with the National Association of Estate Agents’ dispute department. In both cases the advice has been very clear in terms of our introduction.
Payment of commission to an estate agent is due when that agent was the ‘effective cause’ of a successful sale, meaning it was as a direct result of their actions that the buyer proceeded to complete the purchase. Whilst no one is denying that Penyards had previous dealings with Mr XXXXXX a little under a year ago their claim is, at best, highly tenuous as they were obviously not the ‘effective cause’ in selling the property, in fact the sale fell through so that would suggest they were quite the opposite.
The NAEA noted with interest, that this is a completely fresh marketing campaign, asking price and sale price and therefore bears no resemblance to the previous marketing carried out by Penyards. This would further endorse the view that they were not the ‘effective cause’.
o Evans responded in the most unprofessional and insulting manner in a letter on 21st August:
‘Now let us address these differing professional standards. I will also deal with the expression you have used in your letter to Dutton Gregory dated 14th August ‘normal professional etiquette’. I am bewildered by your double standards, or should I in fact so no apparent standards at all, you have completely and utterly contradicted everything that you have previously held as credible and honourable. It reminds me of the old western movies, ‘cowboys’ speak with forktongue.’
o Despite requests from several parties for clarification and even mediation, Evans’ final position was:
‘I refer to my previous statements confirming our position. That is that once contracts have been exchanged if it is not confirmed that we will receive our fee in accordance with our terms and conditions of business Dutton Gregory will be issued with instructions to immediately instigate legal proceedings.
Having stated the above and as a matter of mediation I will however make one concession. This is subject to confirmation in writing from the vendors solicitors that we will be paid in full and final settlement on the date of completion and that these are irrevocable instructions. I will accept 1% plus VAT. This however is to be confirmed in writing no later than12 noon on Tuesday 27th August.’
o On 24th August Dutton Gregory attempted to contact xxxxx with a threat to instigate legal proceedings and claim £21,750 to an email we were having issues with XXXXX. Having checked our servers a bounced mail notification found and was forwarded directly to Dutton Gregory. The mail showed that there was an issue and that mails sent to that address would most likely bounce:
Mail was not delivered to the following recipients: XXXXX Reply text:550 User 'spam' Unknown
o Evans had several contacts for us including our physical address and numerous email contacts but failed to send any papers to any alternative address.
o The sale finally was concluded some SEVEN months after termination of contract
o Nothing more was heard from Evans or their solicitors and it was assumed that they had accepted their inability to claim a fee.
o Sometime in June 2014 we were shocked to receive court papers via a private detective at our home in New Zealand. It was from Penyards claiming fees plus ‘substantial’ costs.
o A defence was submitted by email and by post, it was acknowledged by the courts and further amended documents were sent.
o Nothing more was heard and we perhaps naively, assumed the case was won until we found paperwork some months later during Christmas 2014 at an address we no longer lived at.
o It appears that despite receiving numerous bounces to the email address xxxxx and having employed a detective to locate our current address, important papers were sent only to undeliverable addresses.
o To our amazement the papers outline a judgment was made in favour of Penyards by ‘default’. The court had failed to present our defence. The fee had been awarded plus substantial costs.
o On discovering this paperwork we instructed UK solicitors at yet more cost (£6k) to have it set aside however, due to the time delays they were skeptical.
o We felt we had no choice other than to have our defence heard so instructed our solicitors to try and have the judgement set aside.
o By sending paperwork to undeliverable addresses Penyards had manufactured an undefendable position for us. This was further compounded by trying to seek competent legal advice from New Zealand. The only way to communicate was by email or calls late at night putting us at a severe disadvantage and considerable costs.
o 26th February the judge ruled not to set aside the default judgment mainly due to the delay:
‘The judge held that it would not be proportionate to set aside judgment given the costs that had been incurred - as judgment had been given long ago and costs had been assessed. He referred to the delay point.’
o On 13th March 2015 a letter was received from Pitt&Moore an New Zealand company now instructed by Penyards.
o It now appears that now Penyard’s are at enforcement stage they have chosen to use the correct address.
o Costs are now in the region of £26,000 plus the default judgment. The letter regards enforcement and the threat of bankruptcy. This could result in the loss of our home in New Zealand and affect our immigration.
All Correspondence in support of this complaint are available.
Disclaimer: We make all attempts and efforts to ensure the information in this article is accurate and reliable. We are neither liable nor responsible for any inaccurate information that may be viewed on this website. We reserve the right to make changes to and/or remove information on this website at our own discretion without providing notice to our users. We are not liable for any errors, financial loss, or damages of any kind that may result from use of, or reliance on, the information herein, and/or on this website. We make every effort to maintain the quality of information contained on this website. We are not liable for any content that may be deemed offensive, suggestive and, or inappropriate by our users. The information on this website is proprietary, copyrighted and protected by applicable copyright laws.