Is this right??

I sold my house near Algorfa 18 months ago and moved back to England to be near my Grandchildren. I however have kept close contact with my many very good friends friends I made when I lived there and go to visit them on a regular basis.

A very good friend of mine has recently placed his property on the market with a very, very well known agency which has a very modern office located in Benijofar.

My friend had to sign a contract allowing them to sell his property. (nothing wrong there you say).  However, along with the fact that if he removes his property from the Agency, he has to pay them €150, it also turns out that on reading the contract he signed there is an extremely ambiguously worded clause which effectively says that this Estate Agency has full power of attorney to accept any bid on the property on behalf of the seller, and the seller therefore has no legal right whether to accept or not. This may not be a major problem, if the power of attorney has been fully explained to them but if the house is on sale with other agents and a better offer is put to the seller, surely the seller has the right to decide to choose which offer to take? 

With the Power of Attorney being added into this contract and not being fully explained to the seller, surely this is not only underhanded and unscroupolous, surely it is Illegal!

My friend has been to various lawyers and each tell him the same thing. He has effectively signed Power of attorney over to the Estate Agents, and they are completely within their rights to accept an offer on their behalf and this is a legally binding contract!

If he wishes to remove his property from this Agency he will effectively lose €150, but it would be the lesser of two evils if the property is sold, without his legal right to accept to an offer which would be his lowest acceptable price!

If I was still selling my property and wished someone to have Power of Attorney I would go to the Lawyers and get it done through them. I would in no way give it to an Estate Agent!

My friend feels like a fool and the worry that his house will be sold without his ability to choose to accept the offer is now affecting his health. He was effectively caught out with small print and legal jargon. 

Is this right? If not, can someone help?

Oh dear.  Name and shame the agent that's what I say...even if it does go against our forum rules.

This estate agent hasn't got a clue and is obviously desperate.  Taking advantage of decent people is never acceptable.

I find it quite scary that they have POA to sell the property.  This is unheard of.

Unfortunately your friend made the mistake of not reading the agreement properly before signing it.  Can he afford to just pay the 150 Euros and write this off as a lesson learnt?

I can't see what else he could do.

Justin

Hi - I've never heard of this in a contract although I have only been in this business for 18 months so maybe I still have a lot to learn!! 

However, I thought that the only way you can give anyone a Power of Attorney in Spain, is to go through a Notary - did your friend do this? 

 I would need to see that  " Power of Attorney" to see what legal measure can be applied. Of course, together with revoking the said " POA", your friend should report this to the Consumers authorities.

Thank you for your comments, I would be uneasy to name and shame a company, however if one thinks of the first name of a very famous Horror film actor called "PRICE" one may be pointed in the direction!

I am hoping to see my friend later this week, and I will try to gain a copy of his contract ant type it Verbatum on here so it can be seen by all.

The €150 would not be a problem, however he and his wife are on a UK pension only and that is a lot of money to them. We are hoping to ride out the 6 months and remove the property from their books and place it with a more scrupulous company. However any contract presented will be scrutinised thoroughly before anything is signed.

The ambiguity of the wording in the clause is what irrates the most! and how these people who are supposed to be working for us as sellers can do this!

I doubt your friend has actually executed a power of attorney because that would have meant going before a notary - does he recall doing that?

More than likely it's just a badly worded agency contract drafted probably by some half brained spanish lawyer with limited knowledge of English - just like every contract in English in Spain! Probably should mean he has authority to accept an offer as per list price.

A good friend of mine had an agency and the Spanish drove him mad. They would come in and list properties at extravagent prices but as the market was on the way up in about 12 months the price would appear ok and the agent would show the property and accept an offer at asking price and when he would run around delighted to tell the spanish seller the spanish seller would say NO NO NO that price was 12 months ago now I want a lot  more!!!! and then the agent would have to go back all embarrassed and try to negotiate the price up. [this was a few years back - it's not the market now far from it!!!!]

As for the EUR150 fee that depends on how much work the agent has done in listing the property and in some respects it might be a good way of controlling multi-listings or of ensuring he gets serious sellers. This is one of the reasons agents do such a  bad job and don't go out of their way to promote property  because you can place it with every agent in Town. If you agree to a period of exclusivity then an agent might do a bit more than just putting it on the multi-listing database and also agree reduced commission! Some agents do spend money promoting properties!

We have a property for sale in the UK and it is now common practice that estate agents there charge a fee for withdrawal from their services.  This now obviously appears be the thing creeping in over here, the idea being that you will be tied in to staying with them, so nothing illegal there.  However one would've expected a decent agent to have pointed this out to a customer before signing on the dotted line.  I also agree with Claire T in that any power of attorney will need to be signed before a notary - and as I believe would not be a free service - therefore the seller would've / should've known what they were doing?!!!

HA! I know who this agent is!!! I had my house on sale with them and the contract was awful. They tried to tie my in for 6 months and said that if I sold my house with anyone else, I would still have to pay them commision, and to make matters worse, their commision was twice that of any other agent.

I immediatly removed my house from their books. That was before they had the 150 euro charge.

 It is impossible for any agent to gain POA for your property without going to notary so know need for any undue worry there.

I know some agents now charge a withdrawal fee, i was encouraged to put this in my contracts but i didnt consider it that ethical,regarding some people's plights at the moment.

As long as you do not sign an exclusive deal my advice would be to ride out the contract and put in on with other agents, if you feel deceived by them,you can always turn down viewings, although a sale is a sale.....!

I know which agent you are talking about.

Assuming your friend didn't go to a notary and sign a poder (power of attorney), then the estate agency have no ability to sell the property on his behalf LEGALLY.   However, they (Vincent Real Estste??) certainly sound unscrupulous and very greedy. 

HOWEVER.....They might consider it their right to sell the property via private contract, which seems to be the norm in Alicante (see the thousands of properties in the area of Catral).  In that case, you could probably find yourself with "squatters". 

Why sign a contract at all?  Agencies make huge commissions.  Why can't they do a little work taking some photos and writing up the property without tying someone into a dodgy contract?

I would never give house room to an agent who wanted me to sign a contract.  Let them do the work, if they are that good, they will beat the competition and bring me a sale.

Oh - and why do they persist in using the American term "Real Estate"?  As opposed to what? "Fake estate".....er...come to think of it, in Spain that does cover a large proportion of the properties sold to the "Giris".

MAX,

We have to issue contracts which is a written permission to market the property for a set value.

That is why we ask people to sign contracts............

It has to state the land registry book number and full address,name , passport numbers etc etc...plus, if your handing over keys for your property your should have some written agreement,surely?

I wouldn't call 3% +iva a huge commission, would you? considering most sales these days are around the 80k mark!! I know some charge more but thye "Big Boys high comms" dissapeared with them.

be careful with generalisation as it is generally wrong!!

Hi Georgia

I didn't realize that there was a law requiring an agent to sign a contract with a vendor.  Do you have a BOE reference for that?

3% of 80,000 = 2,400€

I know it isn't the 100,000€ commission that was being made at the height (YES, I know of someone who charged it!) but when wages run at 5 - 6€/hr for bar staff/labourers, we are talking 400hrs work, about 2 months hard labour?

Look - I'm not denigrating the service you and your competitors provide; without you, there would never have been the property boom that brought so much money into Spain.  All I'm saying is that these people (the estate agents) should have a little more humanity.  A lot of the people who have bought over the years are simple folk who have spent all of their lives working in shops, factories, mines etc.  What they have to spend is ALL they have.  A lifetime's toil.

When I sold our farmhouse in Almería, I found out later that the agent had taken 22,000€ and I felt physically sick.

He couldn't even be bothered to sort out a phone number for the purchasers.  What would that have cost him? 

I suppose it all comes down to humanity.  Do you really want to rip off a nice old man for 150€ because you conned him into signing a contract?  (Please understand, I dont mean YOU personally here, but what are Vincent "Real estate" up to?).

As a true Tory capitalist I believe that there is plenty of room for care and consideration in the system.  That means being able to give good, accurate advice and not looking at at each "client" as a one born every minute sucker.

Georgia - I am sure that you are a good person.  Would that were more of you.

In the UK the norm is sole agency and there is always a pretty onerous contract for an agreed period and even then it continues should you sell after that period to anyone introduced by that agency. But when I last sold in UK I paid only 1 1/4% and no agent was looking more than 1 1/2% and I felt that agent did a far better job than most Spanish agents I have come across.

But if this agent sells for the agreed price and charges the agreed commisison then what's the problem?

Presumably the person in question got in a couple of agents and then selected this one and also I guess the contract was in English?

I would suggest being more concerned with whether this agent is actively marketing the property and getting viewings. If not that's another good reason to change and I doubt the agent will chase for the EUR150 since it would be more hassle than it's worth.

I had one agent in Spain market a property in local papers and magazines at their cost and it was multi-agency but they knew the other agents would not get off their backsides and so the agent that advertised sold the property and despite telling one of the other agents it had been sold she still has it on her website!

Why don't we invite the agent on to comment as we have now named him we should at least give him the opportunity to defend himself?

Faro...

"I had one agent in Spain market a property in local papers and magazines at their cost and it was multi-agency but they knew the other agents would not get off their backsides and so the agent that advertised sold the property"

....I rest my case.

I don't know ....

If I agreed with an agent that he would promote my property or do more than take a couple of bad pictures then if I withdrew the property then I thnk it only fair he should be compensated for wasting his time and money.

But I would never agree to long term periods of exclusivity - probably 12 weeks as a max.

But I don't think there are many agents in Spain who do more than take a few pictures and then load the propery on the multi-lisiting database where it sits with the million or so other unsold properties.

I have said this before on another thread,  we should have a go at selling/buying privately, it can be done and think of the money that can be saved.