Key topics - Dual fees and communication
Award
Both agents were entitled to their full commission
What happened?
The complainant said:
- they instructed agent one to sell their property under a sole selling agreement
- after service issues, they ended their instruction with agent one and instructed agent two on a sole selling agreement
- the property was sold by agent two, to a buyer who had previously viewed the property with agent one
- agent one is now claiming a fee on the sale of the property, but as they did not sell the property, they are not entitled to any fee
The agent responded, saying:
- they followed industry best practice when they were dis-instructed
- the property was sold to a buyer they introduced
- they are entitled to their commission fee
What evidence was provided?
Communication, system notes, viewing lists, memorandum of understanding
What was decided and why?
- The buyer viewed the property with agent one and showed active interest.
- Soon after agent one was dis-instructed, the buyer viewed the property with agent two and made an offer, which was accepted.
- When agent one was dis-instructed, they provided their property activity statement and highlighted the possibility of dual fees to the seller.
- Agent two was aware that the buyer had viewed the property through agent one and made it clear to the seller that if they proceed, both agent one and agent two would be entitled to their full commission fee. The seller expressly agreed to this.
- The memorandum of sale confirmed under the special conditions that the seller understood this sale meant they were responsible for commission fees to both agents.
- Both agents had been fully transparent and had followed reasonable procedure, when dis-instructed/instructed. The seller was fully aware they were responsible for dual fees and chose to proceed anyway.
How can you avoid this happening in future?
- All agents involved in a property sale must highlight dual fee responsibility to a consumer
- Agents must follow industry best practice when they are instructed or dis-instructed as there are very few circumstances where a consumer can be held responsible for dual fees
- A list of interested parties should be provided to a seller by the first agent
- The second agent is responsible for asking for a list of interested parties and previous viewings
Read our ‘Dual fee guide to decision making’, which explains how we review dual fee cases and the issues we consider when investigating a complaint. Each complaint is considered on a case-by-case basis and a decision does not set precedent.
