Property question - advice needed please

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Kate
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Property question - advice needed please

Post by Kate » Tue 05 Jul 2016 15:04

by email

Hi,

I have been reading your online article about estate agents in France and I am wondering if you are able to help me with my sorry tale ?

I was approached last Christmas by an English estate agent who had previously had my French property on his books and asked if a prospective buyer of his could view my property to which I replied "yes" on the condition any subsequent offer was close to my original asking price.

In the event I accepted a much lower price and the compromise was signed in April and the completion date eventually set for Thursday 16th of June.
On Tuesday afternoon 14th of June, a few hours after removing the last of my furniture and effects into one of my barns (I am still waiting completion on my next property) the agent visited me ostensibly, or so I thought to say goodbye as I was returning to my home in Spain the following day. He asked me if he could have a last look around the house which I acquiesced to where upon he found and pointed out to me some fungus growing in my study behind where my desk had been.

On Friday 17th of July I received an email from my notaire saying the buyer had pulled out of the sale.

What transpired is the agent without my permission or knowledge entered my property with a fungal treatment expert, presumably just hours after I left on the Wednesday and stated the fungus was "Merules" (a type of dry rot) and gave a quote for treatment of €4,000.

Sometime between Wednesday afternoon and 11am Thursday when completion should have occurred the agent told the buyer what had been found, again without consulting or discussing or advising me and must have put the fear of god into him.

In the UK an agent is instructed by the seller who then becomes his client and so consequently has a duty of care towards the seller and should at all times work in his best interests and certainly should consult with his client and give best advice if any matter arises that the agent feels should be brought to the attention of his client. The question is, is this the case in France ?

In the event when I leant of the problem I immediately offered to pay for treatment and that should have been an end to the matter.
I believe I lost my sale because of the underhand, deceitful and devious manner by which my agent conducted himself, the agent on the other hand says that if he had not taken the course of action he did he would have put his license in jeopardy.

What is certain is I expended many € 0000's on this sale, traveled many 00000's kilometers back and forth between France and Spain and committed myself to buying a new car, the purchase of a flat in Malaga and the purchase of renovation project in France on the strength of the exchange of contracts in April all of which has been a waste of time and expense and is causing me considerable anxiety.

Is there anything I can do about this, is there someone I can complain to and do I have a case for compensation against the agent ?
The burning question for me is who in France is the agents client ? Is it the buyer who pays his fees (he who pays the piper etc) or the seller from whom he has taken instructions ?

God only knows what the agent was thinking at the time. He had every opportunity to ask my permission to get a quote for fixing the problem and we could have immediately gone ahead and treated the fungus and everyone would have been happy bunnies.

Have never come across a situation like this which has turned my life upside down.
Any help or information is going to be overwhelmingly well received.
Many tnanks and kind regards

martyn94
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Post by martyn94 » Tue 05 Jul 2016 15:41

He's your agent, but has a duty to advise the buyer of "vices apparents", which could well be your case. I found this in about twenty seconds by doing a Google search on "devoirs agent immobilier". I imagine that there is much more there that I did not follow up. If you think that your agent has betrayed a duty to you, they are regulated, and most of them belong to trade associations (eg FNAIM) which purport to maintain standards. But I guess he was just watching his own back: it's probably easier for a disgruntled purchaser to pursue an agent in France than a vendor in Spain.

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Post by martyn94 » Tue 05 Jul 2016 16:29

I suppose I could have given you the link I used: it's here


http://droit-finances.commentcamarche.n ... bligations

under "obligation de conseil".

I don't think it's material who (ostensibly) pays the agent's commission: round here, as in most of France, it's the vendor. In some places, by custom, it is (bizarrely) paid by the purchaser, or split 50/50: it will no doubt be spelt out in the "compromis de vente". But it in any event, the agent is instructed by the vendor, but also has legal duties to the purchaser.

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Post by interiors66 » Tue 05 Jul 2016 19:56

Although it is the vendor who instructs the agent, in my experience I have always been asked how much I would want for the property and for example I would say 200k , the agent them puts his commission on top . Often I was asked if the fee was acceptable and I would say I don't care as long as I get what I want. So in theory it's the purchaser who pays the commission .
Although that said their cheque will ultimately come from the notaire who works for the government .
Work that one out !!!

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fungus

Post by Charlotte » Tue 05 Jul 2016 21:14

I would of thought that the company that came and checked for termites and pests would of had some responsibility you pay enough for all these tests lead, asbestos, electrics, and thermal.

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Post by Sus » Tue 05 Jul 2016 21:31

I would check with the notaire, hopefully you have engaged your own, this might depend in the clauses in the sales contract. Also worth checking whether the deposit is still with the notaire.

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Re: fungus

Post by martyn94 » Tue 05 Jul 2016 22:32

Charlotte wrote:I would of thought that the company that came and checked for termites and pests would of had some responsibility you pay enough for all these tests lead, asbestos, electrics, and thermal.
But if they have not been asked or paid to check for dry rot, why on earth would they have any responsibility for it?

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Post by martyn94 » Tue 05 Jul 2016 22:42

interiors66 wrote:Although it is the vendor who instructs the agent, in my experience I have always been asked how much I would want for the property and for example I would say 200k , the agent them puts his commission on top . Often I was asked if the fee was acceptable and I would say I don't care as long as I get what I want. So in theory it's the purchaser who pays the commission .
Although that said their cheque will ultimately come from the notaire who works for the government .
Work that one out !!!
As any economist would tell you, the effective incidence of fees like this has nothing necessarily to do with who is formally charged. Where the vendor pays, the buyer offers €200k and the vendor gets €190k net of fees. Where the purchaser pays, they offer €190k, and that's what the vendor gets, but the purchaser still pays €200k including the fees. What they would have paid had there been no fees at all is anybody's guess: presumably somewhere in the middle.
Last edited by martyn94 on Tue 05 Jul 2016 22:55, edited 1 time in total.

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Post by martyn94 » Tue 05 Jul 2016 22:52

Sus wrote:I would check with the notaire, hopefully you have engaged your own, this might depend in the clauses in the sales contract. Also worth checking whether the deposit is still with the notaire.
I didn't dare mention this aspect, for fear of encouraging the querist to throw good money after bad. But if there is any comeback at all, I would have thought that it is against the prospective purchaser, at least for some or all of the deposit. Which may be precious little comfort.

The agent is under a freestanding obligation direct to the purchaser to disclose visible defects. They are not obliged to seek their vendor's permission to do so.

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Post by interiors66 » Wed 06 Jul 2016 07:52

martyn94 wrote:
interiors66 wrote:Although it is the vendor who instructs the agent, in my experience I have always been asked how much I would want for the property and for example I would say 200k , the agent them puts his commission on top . Often I was asked if the fee was acceptable and I would say I don't care as long as I get what I want. So in theory it's the purchaser who pays the commission .
Although that said their cheque will ultimately come from the notaire who works for the government .
Work that one out !!!
As any economist would tell you, the effective incidence of fees like this has nothing necessarily to do with who is formally charged. Where the vendor pays, the buyer offers €200k and the vendor gets €190k net of fees. Where the purchaser pays, they offer €190k, and that's what the vendor gets, but the purchaser still pays €200k including the fees. What they would have paid

had there been no fees at all is anybody's guess: presumably somewhere in the middle.
Every offer I ever had was always a net offer ,normally being below what I wanted And The agent still their commission

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Post by Sus » Wed 06 Jul 2016 08:24

martyn94 wrote:
Sus wrote:I would check with the notaire, hopefully you have engaged your own, this might depend in the clauses in the sales contract. Also worth checking whether the deposit is still with the notaire.
I didn't dare mention this aspect, for fear of encouraging the querist to throw good money after bad. But if there is any comeback at all, I would have thought that it is against the prospective purchaser, at least for some or all of the deposit. Which may be precious little comfort.

The agent is under a freestanding obligation direct to the purchaser to disclose visible defects. They are not obliged to seek their vendor's permission to do so.
yes I agree that there is probably no case against the estate agent, but I think it it worth checking with the notaire or check the conditions in the sales contract. I find the behaviour of the estate agent somewhat surprising, I would have thought that they would try and earn a commission as they are not really making a lot of money in the current market, so maybe there were other reasons why the purchaser wanted out.

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Post by Kate » Wed 13 Jul 2016 10:26

A reply from the original poster.

"It seems the blame can not be laid at the agents door as he does have a duty to report anything untoward he comes across to the buyer, however whether it is acceptable or ethical that an agent should enter a vendors property without permission to go look for problems I leave to the forum to decide.
I have now contacted a lawyer who tells me on the information I provided him that it would seem I have a strong case against the buyer and that the courts can in fact make him go ahead with the sale which was something of a shock.
It also seems that the presence of rot was found on wood paneling by the surveyor and mentioned in his report under "General" in the exact same place as the subsequent "Merule" (dry rot) was found so I surmise that the buyer knew or should have known a problem existed and he can't therefore use as a defence that information was withheld from him nor that there had been a material change from the time of the compromise to the time of the final Acte. All factors in my favour.
I now feel quietly confident of a good outcome but may have to wait some time whilst the matter goes through the legal process. "

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Post by martyn94 » Thu 14 Jul 2016 19:42

Kate wrote:A reply from the original poster.

"It seems the blame can not be laid at the agents door as he does have a duty to report anything untoward he comes across to the buyer, however whether it is acceptable or ethical that an agent should enter a vendors property without permission to go look for problems I leave to the forum to decide.
I have now contacted a lawyer who tells me on the information I provided him that it would seem I have a strong case against the buyer and that the courts can in fact make him go ahead with the sale which was something of a shock.
It also seems that the presence of rot was found on wood paneling by the surveyor and mentioned in his report under "General" in the exact same place as the subsequent "Merule" (dry rot) was found so I surmise that the buyer knew or should have known a problem existed and he can't therefore use as a defence that information was withheld from him nor that there had been a material change from the time of the compromise to the time of the final Acte. All factors in my favour.
I now feel quietly confident of a good outcome but may have to wait some time whilst the matter goes through the legal process. "
Good luck to the querist, though it is a shame that he still wants to deal with us at one remove. I'm sure there are things that he knows that I don't, that he could help me with if he could be bothered to join us. As to the ethics of the agent entering the property, there's no point asking us: he needs to look at his contract with the agent. If the agent is under an obligation to disclose "vices apparents", it would be odd if he hadn't secured himself the right to see if there are any.

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Post by interiors66 » Fri 15 Jul 2016 07:56

Kate wrote:A reply from the original poster.

"It seems the blame can not be laid at the agents door as he does have a duty to report anything untoward he comes across to the buyer, however whether it is acceptable or ethical that an agent should enter a vendors property without permission to go look for problems I leave to the forum to decide.
I have now contacted a lawyer who tells me on the information I provided him that it would seem I have a strong case against the buyer and that the courts can in fact make him go ahead with the sale which was something of a shock.
It also seems that the presence of rot was found on wood paneling by the surveyor and mentioned in his report under "General" in the exact same place as the subsequent "Merule" (dry rot) was found so I surmise that the buyer knew or should have known a problem existed and he can't therefore use as a defence that information was withheld from him nor that there had been a material change from the time of the compromise to the time of the final Acte. All factors in my favour.
I now feel quietly confident of a good outcome but may have to wait some time whilst the matter goes through the legal process. "
If it was me , I'd put the house back up for sale and move on, a lengthy court case trying to force a sale could take years and all the time you could be missing out on potential purchasers.

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