Terms of Business in Accordance with the Estate Agents Act 1979 Residential Sales
This Agreement which includes the terms set out on the Form (defined below) is made between:
(a) Hillgate Investments Ltd, registered in England and Wales with Company Number 5068239 whose registered office is at 146 Lower Road, Rotherhithe, London SE16 2UG, trading as Alex Neil (“Alex Neil”); and
(b) the seller or, if more than one, the sellers named on the Form (“the Seller”).
The following words shall have the following meanings in this Agreement:
(a) “Agreed Disbursements” has the meaning set out in paragraph 9
(b) “Form” the Confirmation of Instruction and Terms of Business Form attached to this Agreement
(c) “Commission Fee” has the meaning set out in paragraph 8
(d) “Introduced” or “Introduction” has the meaning set out in paragraph 7
(e) “Property” the property described in the Form
(f) “Relevant Percentage” the percentage Commission Rate specified on the Form
(g) “VAT” value added tax at such rate in force from time to time
3. GENERAL PROVISIONS
The Seller warrants that he / she / it has authority to enter into this Agreement and that the information provided on the Form is accurate.
In accordance with the terms below and the terms set out on the Form, the Seller agrees to instruct Alex Neil in relation to the marketing for sale of the Property. No revisions to this Agreement or the Form, (whether by the insertion of additional wording or the deletion of the existing wording) will be valid or binding. Any revisions to the Form shall be agreed between the parties and set out by Alex Neil only in the section headed “Special Conditions” on the Form.
In this Agreement a sale of the Property includes the sale of a freehold property or the grant of a leasehold interest at a premium (as the case may be) and the terms “sale” and “purchase” should be construed accordingly.
4. SOLE AGENCY AND JOINT SOLE AGENCY
Where the Seller agrees for Alex Neil to act as a Sole Agency (defined as follows), the Seller will be liable to pay a Commission Fee to Alex Neil, in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the Property are exchanged:
(a) with a purchaser who was Introduced by Alex Neil during the period of Alex Neil’s Sole Agency or with whom Alex Neil had negotiations about the Property during that period; or
(b) with a purchaser Introduced by another agency during that period.
Where the Seller agrees for Alex Neil to act as a Joint Sole Agency (defined as follows), the Seller will be liable to pay a Commission Fee to Alex Neil, in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the Property are exchanged:
(a) with a purchaser who was Introduced by Alex Neil during the period of Alex Neil’s Joint Sole Agency or with whom Alex Neil had negotiations about the Property during that period; or
(b) with a purchaser Introduced by another agency during that period, except no Commission Fee will be payable to Alex Neil if that other agency is the Joint Sole Agency named on the Form, or such other Joint Sole Agency notified in writing to Alex Neil in substitution of the Joint Sole Agency named on the Form.
The period of Alex Neil’s Sole Agency or Joint Sole Agency (as the case may be) shall be for the Minimum Period specified on the Form and shall continue automatically after the duration of the Minimum Period until this Agreement is terminated by the Seller having given not less than two weeks’ notice in writing to Alex Neil (referred to as the “Notice”) (to expire no earlier than the Minimum Period) specifying that the Seller whishes Alex Neil to cease acting as Sole Agency or Joint Sole Agency (as the case may be) and whether or not it wishes Alex Neil to act as a Multiple Agency in accordance with paragraph 5.
Unless the Seller gives Notice, it is agreed that after the expiry of the Minimum Period of Alex Neil’s Sole Agency or Joint Sole Agency (as the case may be), Alex Neil shall without the requirement of further instruction from the Seller continue to act as a Sole Agency or Joint Sole Agency (as the case may be). On receipt of the Notice from the Seller, Alex Neil shall cease acting as a Sole Agency or Joint Sole Agency (as the case may be) and unless specified otherwise in the Notice it shall act as a Multiple Agency for the Seller in accordance with paragraph 5.
Where the Seller agrees for Alex Neil to act as Joint Sole Agency, the Seller will be responsible for negotiating the separate fee payable to the joint agency and for settling that fee.
5. MULTIPLE AGENCY
Where the Seller agrees for Alex Neil to act as a Multiple Agency (defined as follows) the Commission Fee will be payable by the Seller if Alex Neil either:
(a) introduces a purchaser to the Property who later contracts to purchase the Property; or
(b) enters into negotiations with a purchaser who later contracts to purchase the Property.
The Commission Fee will be payable whether the contract to purchase the Property takes place during the period of this Agreement or any time after its termination and whether the purchaser purchases the Property through Alex Neil (as the purchaser’s acting estate agency) or via any other agency or otherwise, on condition that the purchaser was introduced to the Seller by Alex Neil.
A Multiple Agency agreement shall run without limitation of time until terminated by either the Seller or by Alex Neil giving the other party not less than two weeks’ notice in writing.
6. DUAL FEE LIABILITY
If another agency is instructed to act for the Seller now or in the future, the Seller may become liable to pay their fee as well as the Commission Fee due to Alex Neil under this Agreement. Therefore, the Seller should consult any terms of business entered into with the other agency.
7. MEANING OF INTRODUCTION
An introduction of a purchaser to the Property merely requires the marketing of the Property for sale to have been brought to the purchaser’s attention, through whatever means whether by advertising by way of a “For Sale” board at the Property or by providing sales particulars or otherwise (an “Introduction” or “Introduced”).
An Introduction of a purchaser to the Property shall include not only a direct introduction of a purchaser to the Property by Alex Neil but also an indirect introduction. An indirect introduction will arise if a third party is introduced to the Property by Alex Neil and that third party introduces the purchaser to the Property.
If a purchaser of the Property is a company, then the purchaser will be deemed to have been introduced to the Property by Alex Neil if any “Relevant Person” has been introduced to the Property by Alex Neil. A Relevant Person is anyone who is in control of or is a director or shareholder or beneficial owner or employee of the purchaser company.
8. AMOUNT OF COMMISSION FEE
Subject to a minimum charge of £2,500 plus VAT the commission fee for a Sole Agency is calculated as the Relevant Percentage (2% plus VAT) of the Sale Price of the Property; and
Subject to a minimum charge of £3000 plus VAT the commission fee for a Joint Sole Agency is calculated as the Relevant Percentage (2.5% plus VAT) of the Sale Price of the Property; and
Subject to a minimum charge of £3,500 plus VAT the commission fee for a Multiple Agency is calculated as the Relevant Percentage (3% plus VAT) of the Sale Price of the Property,
in each case referred to as the “Commission Fee”.
The Relevant Percentage is specified on the Form and varies depending upon whether Alex Neil is instructed on a Sole Agency, Joint Sole Agency or Multiple Agency basis.
The “Sale Price” is the price at which the purchaser contracts to purchase the Property including any amount the purchaser agrees to pay for fixtures, fittings, goods, chattels, carpets, curtains and other such related items.
In the event of a part exchange, the Sale Price will be deemed to be the full amount of the Marketing Price specified on the Form.
In the event that the Property is owned by a company and there is a sale of shares in the company then that sale shall be treated for the purposes of this Agreement and for the purposes of liability to Alex Neil for the Commission Fee as if it were a sale of the Property, save that the Sale Price shall be deemed to be the Marketing Price specified on the Form.
9. PAYMENT OF COMMISSION FEE AND AGREED DISBURSEMENTS
If there is more than one Seller, then they shall each be jointly and severally liable for the Commission Fee and any Agreed Disbursements.
The Commission Fee will become due and payable on the date of exchange of unconditional contracts for the sale of the Property.
Where conditional contracts for the sale of the Property are exchanged the Commission Fee will become due and payable upon such contract becoming unconditional by satisfaction waiver or otherwise.
Where conditional contracts for the sale of the Property are exchanged but do not become unconditional as a result of any act or default on the part of the Seller whereby the condition(s) are not satisfied, then the contract will be deemed to have become unconditional 90 days after exchange.
Agreed Disbursements will be such disbursements as the Seller (or if more than one, any of the Sellers) may from time to time instruct Alex Neil to incur (“Agreed Disbursements”). Unless otherwise agreed in writing, Agreed Disbursements shall be due and payable immediately upon the acceptance by Alex Neil of such instruction. Liability for payment of Agreed Disbursements shall not be dependent upon any sale of the Property.
Before exchanging contracts for the sale of the Property the Seller shall instruct the solicitor or other legal representative specified on the Form (“the Seller’s Solicitors”) to receive the proceeds of the sale of the Property into its client account and to pay from that account the Commission Fee and any outstanding Agreed Disbursements to Alex Neil.
Alex Neil will send its invoices for its Commission Fee (including any reminders) to the Seller’s Solicitors direct and pursue the Seller’s solicitors for payment but liability for payment of the Commission Fee and Agreed Disbursements remains at all times with the Seller whether or not the Seller’s Solicitors or Seller receives any proceeds from the sale of the Property.
The Seller agrees to indemnify Alex Neil against any costs, expenses or liabilities incurred or imposed on Alex Neil which were incurred on the Seller’s behalf.
10. LATE PAYMENT
Alex Neil requires forthwith payment of the Commission Fee and the Agreed Disbursements in accordance with paragraph 9. If any, or all, of the Commission Fee and/or Agreed Disbursements are not paid within 10 working days of it falling due then:
(a) Alex Neil is entitled to charge interest on such outstanding Commission Fee and/or Agreed Disbursements on a daily basis, from the date of payment falling due until payment is received, at the interest rate defined below;
(b) the Seller shall indemnify Alex Neil for any resulting legal costs and disbursements incurred by Alex Neil in collecting the outstanding Commission Fee and /or Agreed Disbursements.
Interest will be calculated at 8% per annum above Barclays Bank Plc’s base rate as at the date of the Commission Fee and/or Agreed Disbursements falling due (“Interest”). Interest will be calculated on the sum of the outstanding Commission Fee and/or Agreed Disbursements plus any accumulated Interest.
If Alex Neil agrees to any terms with the Seller in addition to, or in substitution of, the terms in this Agreement (which are specified as a Special Condition on the Form) and the Commission Fee is not paid within 10 working days of it falling due, then at the end of the 10 working day period if the Commission Fee due is less than such sum that would have been payable if Alex Neil had not agreed to the Special Condition, then the Commission Fee shall be calculated without reference to the Special Condition and such sum shall be due and payable by the Seller to Alex Neil. Alex Neil shall be entitled to charge interest on such amount in accordance with paragraphs 10(a) and 10(b) above.
11. INITIAL MARKETING PRICE & PROPERTY DETAILS
The Marketing Price specified on the Form does not represent a formal valuation of the Property and may change during the period of this Agreement. Such change of the Marketing Price shall not affect the terms of this Agreement whether as to the calculation of Commission Fee or otherwise.
The Seller acknowledges that Alex Neil has not carried out a structural examination of the Property and has assumed that there are no defects, covenants and conditions and vacant possession of the Property is to be given on completion of any sale.
Under the terms of the Property Misdescriptions Act 1991 it is essential that all information incorporated in the particulars of sale is factually accurate. The Seller shall promptly check and verify the accuracy of any marketing material prepared by Alex Neil relating to the Property (whether in electronic format or otherwise) and promptly notify Alex Neil in writing of any discrepancies and/or inaccuracies. Unless any discrepancies and/or inaccuracies are promptly brought to Alex Neil’s attention, the Seller shall be deemed to have confirmed that the marketing material is accurate. Alex Neil shall not be liable for the contents of any marketing material nor for any loss or damage suffered by the Seller in the event of any inaccuracies.
The Seller agrees that Alex Neil has the right to sub-instruct other agencies to assist with the marketing of the property at no additional cost. Alex Neil will co-ordinate all viewings and negotiations arising from such sub-instruction.
13. DISCLOSURE OF OFFERS
Alex Neil requires the Seller to provide it with full details on the date of this Agreement of any offers for the purchase of the Property which it is in receipt of and which are in existence on the date of this Agreement.
Alex Neil requires the Seller to promptly provide it with full details of any offer agreed either privately or via another agency for the purchase of the Property after the date of this Agreement. The Seller must confirm to Alex Neil the full name of the purchaser prior to exchange of contracts.
In accordance with The Estate Agents (Provision of Information) Regulations 1991, Alex Neil will promptly inform the Seller (by verbal communication, which shall be confirmed in writing) of all offers it receives for the Property.
Unless otherwise instructed by the Seller, Alex Neil is authorised by the Seller to appoint contractors on behalf of the Seller to erect “For Sale” and “Sold” boards at the Property. Those contractors but not Alex Neil shall be responsible for any damage caused by the erection of the board. The Town and Country Planning (Control of Advertisement) Regulations 2007 permit the display of only one board. Accordingly, the Seller confirms that no board other than an Alex Neil board will be erected while Alex Neil is instructed as an agency including during any period of any Joint Sole Agency and Multiple Agency instruction.
The Seller accepts that Alex Neil has the right not to produce details or include the Property in their magazine or any other publication.
Alex Neil retains the right to use any of its photographs of the Property for its own future marketing purpose even if those purposes are unconnected with the sale of the Property.
15. OTHER SERVICES
Alex Neil may offer, whether directly or via third parties, additional services to clients including prospective purchasers from which Alex Neil may earn a fee. These services include the sale or rental of the Property or another property, arranging financial services from third parties, lettings and property management, valuation and surveys, removals, building maintenance, and solicitor referral.
16. UNOCCUPIED PROPERTY
Alex Neil is not responsible for the security, maintenance or repair of the Property.
17. CONNECTED PERSONS
In pursuance of Section 21 of the Estate Agents Act 1979, unless specifically stated, Alex Neil is not aware of any personal interest existing between Alex Neil or anyone in Alex Neil’s employment or any connected person(s) and the Seller. If the Seller is or becomes aware of such an interest, then Alex Neil should be notified immediately.
18. LIMITATION OF LIABILITY
Nothing in this Agreement shall exclude or in any way limit Alex Neil’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this, Alex Neil’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence), breach of fiduciary or other duty, or otherwise, will in no circumstances exceed £1,000,000.
If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
20. ENTIRE AGREEMENT
This Agreement and the Form constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
The parties agree that neither of them have been induced to enter into this Agreement in reliance upon any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person other than as expressly set out in this Agreement. Nothing in this Clause shall, however, operate to limit or exclude any liability for fraud.
No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
21. THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
22. ENGLISH LAW
This Agreement is governed by the law of England & Wales and is subject to the exclusive jurisdiction of the Courts of England & Wales.
23. COMPLAINTS PROCEDURE
Alex Neil is a member of The Property Ombudsman Scheme full details of which can be found at www.tpos.co.uk. Alex Neil will comply with The Property Ombudsman’s Code of Practice for Residential Estate Agents (“Code of Practice”) and the parties agree that Alex Neil may disclose information relating to the sale of the Property to the Property Ombudsman.
Should the Seller be unhappy with the service received please contact Alex Neil in the first instance and request a copy of its Internal Complaints Procedure document in accordance with the Code of Practice. If for any reason we are unable to resolve the problem between us, then the Property Ombudsman provides a complaint and redress mechanism and can be contacted on www.tpos.co.uk.