Contract with estate agent

[amydown]

Just wondering if wise forumites can give me some advice. We signed up with an estate agent to sell our house recently. I'm not entirely satisfied and therefore want to change to a different agent.

The contract we signed with the current agency has a minimum sole agency period of 12 weeks. However, Clause 1 of the contract states that "During the minimum period of the contract between us three weeks written notice may be given at any point".

I therefore understood that to mean that within the 12 week minimum sole agency period, we can end it by giving 3 weeks notice. The agency is saying that you can only serve this 3 week notice once the minimum period has ended. Their argument is not consistent with the clause at all but they are not budging. They are saying that we are disputing the contract term but I don't think there is anything to dispute - am I being thick here somehow? Doesn't that sentence mean that we can serve notice DURING the minimum period?!?

Thoughts and advice much appreciated.

[KidKruger]

Give them 3 weeks notice.

Disengage. Write a letter and be clear about areas where you are dissapointed.

Engage other agents after 3 weeks.

If the first agent is so sure of their contract they can go through the lengthy, expensive, drawn-out procedure of taking legal action against you (but they won't, there's no money to do that). You're not happy with their service, so you're not obliged to stay with them.

[dbboy]

The clause clearly states three weeks notice can be given, if they meant it to be after the twelve week period, then the clause should have been more explicit and say that, it dosen't.

I read it as you and Kidkruger have, so I'd proceedd as Kidkruger has suggested.

[amydown]

Thank you very much both.

[silverfox]

The agency may have a point here. It clearly states

"...a minimum sole agency period of 12 weeks..."

What do the other clauses say? Ie, can you involve other agents after the 12 week period but you still need to retain them as one of the agents unless you serve the three weeks notice within the minimum period? If you serve the notice within the required period can you ditch them altogether?

Be careful to serve the notice in plenty of time in advance of the 'anniversary'. Ie, if the three week notice refers to 21 days rather than three working weeks make sure you serve the notice in writing no less that 21 calendar days before the minimum period expires.

[El Pibe]

It is a bit ambiguous isn't it, and I could certainly infer the estate agents' view from the quality of minimumness of the contract.

That said I'm sure KK is right that there's nothing in it for them to pursue this legally as the best that could happen is to force you to stick this 12 week period at which point it's obvious you'd go anyway.

[KidKruger]

Just because it's written in a contract (even if it's a contract you've signed) doesn't mean a court will agree witthe content of that contract, esp. if some of the clauses seem just plain unreasonable.

[silverfox]

True kk, but The problem here is we don't have all the facts to say whether anything is unreasonable.

Amydown is unhappy with the agency's services and wants to extricate herself from the contract. However, it appears clear to me that there is a minimum sole agency agreement of 12 weeks. Also, Clause 1 seems to say if you give three weeks notice within the 12 week sole agency period then the sole agency period will not continue after the 12 weeks.

It cannot mean by giving three weeks notice within the 12 week period the contact will come to an end before the 12 weeks otherwise you could sign a contract at 10am on a particular day and give written notice one minute later so that the sole agency (and possibly the contact itself) ends three weeks later.

We need more information as to what the contractual relationship will become after the 12 week period. It may continue but not on a sole agency basis or it it may expire if notice is correctly given.

What is clear is that the estate agent is wrong if he or she is saying you cannot give notice within the 12 week period.

There is nothing ambiguous or unreasonable here - we just don't have all the information as to what happens after the 12 weeks

[Mick Mac]

I'm with Silverfox. Probably the minimum term is the overriding factor. You may be able to give notice within the 12 weeks for breaking the contract at the 12 week point or thereafter.

Thats my guess. Otherwise it wouldn't work - you could give 3 weeks notice on day 2 of the contract after thay have spent money advertising your house sale on web/paper etc. Thye would not have drafted a contract along these lines.

* You are however completley within your rights to negotiate with them a contract break based upon poor service - that might be best.

[amydown]

The contract is completely silent about what happens after the minimum 12 week period ends and I had therefore assumed that (rightly or wrongly) it will be on a rolling basis after the 12 week period on a sole agency basis and that if we go multiple agency for instance, it's a case of notifying them without the requirement of a notice period.

Silveffox's point is interesting regarding signing them up and then serving notice the day after, effectively making it a 3-week contract and in fact, this is how I understood it to be. I.e. from agency's point of view, they at least have 3 week period of guaranteed sole agency during that minimum period, unlike after the minimum period where they can lose the "sole agency" status upon notification.

If one could only serve the 3-week notice to end the contract on the anniversary of the minimum period itself, what is the meaning of "three weeks written notice may be given at any point"?

[silverfox]

Amydown, I would pop in and see them and explain that you intend to give them written notice no later than three weeks before the end of the minimum 12 week term. You understand that by doing this the contract between you and them will terminate at the end of the term.

Once you've given them your written notice (do this by hand rather than by post)that should be the end of the matter when the 12 week period expires if there is no other mention of what happens after you've served your written notice in time, ie, if the contract doesn't state that it should be read in conjunction with the agency's standard terms of business etc

If this is not the agency's understanding when you pop in they should explain to you fully why you are mistaken.

[Tommy1000]

There's certainly a fair degree of ambiguity here - not the OP's fault but because of the contract's drafting.

Based on the info provided though, I'd be inclined to agree with Kid Kruger's advice. And this purely on a practical basis; it would be very surprising indeed if the estate agency pursued you. KK's advice about being as clear as possible (and implicitly documenting it) about your dissatisfaction is also a good one - you would have a paper trail in the very unlikely event that the agents did pursue you.

On the legal side of things, contractual interpretation can be a difficult one, especially when it's (based on what you've said) vague in some areas and silent on others(!) On balance though, my view would be that you're entitled to serve three weeks' notice. Silver fox makes some valid points around the possible intention behind the wording, but I wouldn't be sure at all that it can't possibly be taken to mean a 3 week contract. The estate agent that sold my flat 2 months ago took it on on a 3 week contract, without complaint. So it's perfectly plausible that agencies view 3 weeks as a minimum amount of time to make good on their intiial advertising (etc) investment. You're right to flag the curious wording of the notice bit too: if it truly meant that the earliest that the contract could end was after 12 weeks, then why phrase the notice bit the way it's been written. Why wouldn't you say 'contract is for a mimimum of 12 weeks, and at any point after expiry of 9 weeks, 3 weeks' notice to terminate may be given'.

I'm not sure how much weight should be put on the word 'minimum'. Think about a residential lease that's phrased as a 12 month contract but with a 1 month break which may be served after 6 months. You can call it a 12 month lease / contract all you like, but it's not really as either party can effecitvely terminate on 7 months.

Finally, one of the key things in contractual interpretation is the 'intention of the parties'. What did you think the sole agency period was when you signed up? If, in reality, everyone thought it was 12 weeks and there are e-mails or another form of communication to support this, then you could run into trouble if they did take legal action. If (in the unlikely event that) they did take legal action against you, you'd like to think that anyone looking at the contract wouldn't interpret their poor drafting in their favour.

[amydown]

Thank you so much everyone. It's really helpful. The reason I want to serve notice now and make it effective in 3 weeks is so that I can appoint someone else rather than wait for another 9 weeks of inactive marketing by the current agency.

Tommy1000, that's a valid point about the intention of the parties. There was no mention of the term being 12 weeks without break option and when we had the valuation done, some of the other agents were offering 2-week rolling contract. I would therefore not have signed up to this if I thought the 3-week notice could only be served after the minimum period. In hindsight, I should have clarified this before signing up.

The agency has two directors and the one I signed up with is currently away on other commitments. The other director said I should speak to him directly and is refusing to answer my request for clarification, further adding to my frustration.

It has been enormously valuable to have all your thoughts and views.

[woodrot]

easy - tell the EA to increase your house sale price by say ?250K - if it sells, everyone is happy, if not, then they are made to look like the square shoe toed poltroons they truly are.

[Mick Mac]

Amydowm. It might be best to forget the 12 weeks (as I have litle doubt you have signed up for this ) and say to the agent that you are ending the relationship due to poor performance. They will either accept or focus much more attention on your property than they would otherwise have.