TERMS AND CONDITIONS OF BUSINESS FOR RED PROPERTY PARTNERSHIP AGENCY AGREEMENT
1. Entitlement to commission
1.1 The Commission Fee is the amount set out in the Agency Agreement. The Commission Fee is payable under the circumstances set out in clause 2 and/or clause 3 below.
1.2 The Commission Fee will be payable whether the introduction is a direct introduction or an indirect introduction (where the Buyer makes the purchase as a result of becoming aware that the Property was for sale through the marketing of the Property by the Agent) and whether or not the Buyer makes the offer to purchase through another Agent or through any other person. Another Agent is someone involved in estate agency work or someone who in the course of a business introduces a Buyer to the Property but has no further involvement.
1.3 The Agent’s contractual responsibility is confined to marketing the property and the other obligations set out in this Agreement, and any further assistance in relation to the purchase is entirely at the Agent’s discretion.
1.4 In the event of a part exchange, any Commission Fee calculated by a percentage rate will be calculated on the full Selling Price of the Property.
1.5 The Commission Fee calculated by a percentage is calculated on the price of the Property, including any contents, carpets or fixtures and fittings.
2. RED PROPERTY PARTNERSHIP SOLE AGENCY
2.1 The Agent will be the only agent for the sale of the Property during the Agency Period (Red Property Partnership).
2.2 The Seller will be liable to pay the Commission Fee to the Agent, in addition to any other costs or charges agreed, in each of the following circumstances:-
• if unconditional contracts for the sale of the Property are exchanged in the period during which Red Property Partnership is in force, even if the Buyer was not found by the Agent but by another agent or by any other person, including the Seller;
• if unconditional contracts for the sale of the Property are exchanged after the expiry of the period during which Red Property Partnership is in force but to a Buyer who was introduced to the Seller during that period or with whom the Agent had negotiations about the Property during that period.
However, the Seller will not be liable to pay the Commission Fee in any of these circumstances if the unconditional contracts for the sale of the Property are exchanged six months after the expiry of the period during which Red Property Partnership is in force and where the Seller has appointed another estate agent whose activities have resulted in the sale of the Property, or twelve months after the expiry of Red Property Partnership in all other circumstances.
2.3 On expiry of the Agency Period, unless terminated by either side by a minimum of 14 days’ written notice expiring on the last day of the Agency Period, the agency shall continue as Red Property Partnership until either:-
• it is terminated by either the Seller or the Agent on 14 days’ written notice; or
• the Seller by 14 days’ written notice to be served not earlier than the last day of the Agency Period converts Red Property Partnership into a Multiple Agency, which Multiple Agency shall then continue on the terms
set out in clause 8 of the Agency Agreement and in clause 3 below; or
• the Seller appoints another agent without giving any or any adequate notice, in which case Red Property Partnership will continue to apply save that the Multiple Agency Commission Fee would be payable if a fee becomes due
• if the Property is owned by a Company and the Buyer acquires the Property indirectly through the acquisition of that Company, the Seller will be liable to pay the Commission Fee if the Buyer was introduced to the Seller during the Agency and if unconditional contracts for the sale of the Company are exchanged within six months after the expiry of the Agency.
2.4 If at any time during Red Property Partnership Agency the Energy Performance Certificate for the Property ceases to be valid in respect of the requirements of Part 5 of the Housing Act 2004 the Agent shall immediately cease marketing the Property until such time as a valid Energy Performance Certificate is in the possession of the Agent. The period for which marketing has ceased because of the absence of a valid Energy Performance Certificate shall not count towards the Red Property Partnership Agency.
3. Multiple Agency
3.1 If this Agreement is on a Multiple Agency basis or it becomes a Multiple Agency Agreement following the conclusion of Red Property Partnership Agency the Seller may from the commencement of the Multiple Agency appoint another estate agent or agents in addition to the Agent.
3.2 The Multiple Agency period (the “Multiple Agency Period”) shall continue until terminated by either the Seller or the Agent giving the other party 14 day’s notice in writing expiring on or after the Agency Period, in which case
it shall terminate on the last day of the notice period.
3.3 The Seller will be liable to pay the Commission Fee to the Agent, in addition to any other costs or charges agreed if at any time unconditional contracts are exchanged with a Buyer introduced by the Agent or with whom the Agent has had negotiations about the Property during the Multiple Agency Period. However, the Seller will not be liable to pay the Commission Fee in any of these circumstances if the unconditional contracts for the sale of
the Property are exchanged six months after the expiry of the Agent’s Multiple Agency Period and where the Seller has appointed another estate agent whose activities have resulted in the sale of the Property, or twelve
months after the expiry or the Agent’s Multiple Agency Period in all other circumstances.
3.4 If at any time during the Multiple Agency Period the energy Performance Certificate for the property ceases to be valid or is found to be invalid in respect of the requirements of the Housing Act 2004 we shall immediately cease marketing the property until such time as a valid Energy Performance Certificate is in our possession. The period for which marketing has ceased because of the absence of a valid Energy Performance Certificate shall not count towards the Multiple Agency Period.
4. Dual Fee Liability
If you (the Seller) have previously instructed another agent to act for you, or if in the future you instruct another agent, you may become liable to pay the other agent a fee as well as any fee due to us under this Agreement.
You should therefore consult the terms of business of any agreement you have entered into with the other estate agent.
5. Payment of Commission Fee
5.1 The Commission Fee will become due on exchange of unconditional contracts for the sale of the Property and payable on the earlier of completion or 60 days after exchange of contracts (“the due payment date”). The Seller
agrees that the Agent may carry out a credit search on the Seller at any time after payment of the Commission Fee has become due.
5.2 The Seller agrees to instruct and authorise its legal representative to give, no later than exchange of unconditional contracts for the sale of the Property an undertaking to the Agent to pay from its Client Account the Commission Fee as set out in clause 5.1 above. The Seller agrees that the Agent may send its invoice direct to the Seller’s legal representative. The Seller may revoke his instruction pursuant to this clause if he considers that there are grounds to do so by writing to the Agent stating the reasons.
5.3 The various Prepayments/Other Charges itemised on the attached Schedule (if applicable) are due and payable in accordance with the Schedule irrespective of whether the Commission Fee is due.
6. Interest for Late Payment
If the Commission Fee or Disbursements are not paid in full within 10 days of the due payment date or any alternative date agreed in writing with the Agent interest will become payable on any outstanding sum or sums.
The rate of interest will be 3% above the National Westminster Bank plc base rate then in force.
7. Initial Marketing Price
The Initial Marketing Price (otherwise referred to as the initial asking price) does not represent a formal valuation of the Property. The Initial Marketing Price may be varied upon the written instructions of the Seller, but this shall not affect this Agreement. The Agent has discussed the Initial Marketing Price with the Seller, but has not carried out a structural examination of the Property and has assumed that there are no defects, third party rights, covenants or conditions affecting the Property and that vacant possession will be given on completion. The Initial Marketing Price has been set at a level agreed with the Seller for marketing purposes and is not indicative of the best market price for the Property. The Seller acknowledges and agrees that the Agent is under no obligation to disclose to the Seller comparable pricing information, confidential information or marketing strategies relating to other properties.
8. Energy Performance Certificate
8.1 Where the Energy Performance Certificate has not been supplied by us, we will not begin marketing until a valid Energy Performance Certificate is in our possession. It is the Seller’s responsibility to ensure that we are given all the necessary powers in respect of a Energy Performance Certificate not supplied by us to enable us to meet our obligations under the Housing Act, including unrestricted access for ourselves and for prospective purchasers and their conveyancers and the facility to obtain hard copies (we will not assemble hard copies of Energy Performance Certificate ourselves).
8.2 In the event that the Agent is required to use a Energy Performance Certificate that has not been supplied by us, we may at our entire discretion submit a Energy Performance Certificate for validation by a business chosen by us. A charge for validation will be payable in advance. Where a Energy Performance Certificate fails such validation we will not proceed with marketing the property until a valid Energy Performance Certificate is in our possession, and the Agency shall begin at that date.
8.3 If you have a Energy Performance Certificate that has been supplied to you by a third party, the terms of that supply must include the right for us or a third party employed by us to use the Energy Performance Certificate in order to meet our legal obligations. In the event of any third party seeking damages from us or a third party employed by us on the grounds that our use of the Energy Performance Certificate to meet our legal obligations has infringed their rights, you will be liable for any costs and damages we and/or a third party employed by us incur.
9. Sale via other Estate Agents/or Privately
If the Property is sold through another estate agent or privately the Seller agrees to advise the Agent promptly of the name and address of the selling agent (if applicable), the sale price, the date of exchange of contracts and the name and address of the purchaser.
10. Property Misdescriptions Act 1991
Under the Property Misdescriptions Act, it is a criminal offence for Estate Agents to give false or misleading information in relation to the description of the Property. The Seller agrees to provide the Agent with accurate information about the Property so that the Agent is able to comply with this provision. If the Seller becomes aware of any matters that may affect the accuracy of the sales particulars, the Seller agrees to advise the Agent in writing immediately.
11. Fixtures and Fittings
To comply with the requirements of the Property Misdescriptions Act 1991, all fixtures and fittings that are mentioned in the sales particulars will be deemed to be included in the sale unless otherwise specified in writing.
12. For Sale Boards
The Agent may erect a For Sale board outside the Property. Under current legislation only one board is permitted
per Property and the Seller agrees not to allow the display of any other For Sale board at the same time.
The Seller agrees that the Agent may mention the Property (but not the Seller’s name or identity) in general advertising following the sale.
A member of Red Property Partnership
Red Property Partnership Limited.
Registered Office: Spindlewood House, Heathview, East Horsley, Surrey, KT23 5ED. Registered in England Number: 6946290
14. Other Services
The Agent and/or other companies associated with the Agent may offer prospective purchasers services from which they will or might earn commission. These services include estate agency; arranging mortgages, general insurance or life assurance; conveyancing services; surveys and valuations; lettings and property management, and other property related services.
15. Unoccupied Property
The Agent is not ordinarily responsible for the security, maintenance or repair of the Property save where the Agent negligently fails to secure the Property after an accompanied viewing. It is the Seller’s responsibility to ensure that mains services are turned off, water and heating systems professionally drained and the insurers notified.
16. Tenancy Agreement
In the event that the Agent negotiates with, or directly or indirectly introduces, a tenant for the Property during the period of this Agreement, then the Agent will be entitled to an introducer’s fee based on 10% of the total rent payable during the period of occupation by the tenant, plus VAT. This fee excludes any management service.
17. Sub Agents
The Seller confirms that unless specially instructed in writing to the contrary, the Agent may appoint sub agents to assist the Agent with the marketing of the Property provided this is at no additional cost to the Seller.
18. Final Agreement
This contract, including the Schedule of Prepayments/Other Charges (together with any Additional Services Agreement where the Seller requires the Agent to supply Additional Services) sets out the definitive terms and conditions of engagement between the Agent and the Seller and supersedes all previous written, oral or customary arrangements. Any change to the terms and conditions (e.g. a change in the Commission Rate) must be specifically agreed in writing and signed by the parties.