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This article delves into the intricacies of estate agent commission, outlining the legal principles and considerations that govern this aspect of their profession.
Commission and Common Law
At common law, an estate agent earns commission when they have successfully executed their client's mandate. This entitlement to commission is not based on the time or effort invested but on the completion of the task at hand. It's important to note that conscientious efforts to fulfil the client's instructions, without an agreement specifying otherwise, do not guarantee commission.
To avoid commission disputes, estate agents should thoroughly discuss commission payment terms with their clients when initially accepting the mandate. Recording these terms in writing is considered sound business practice.
Determining an Estate Agent's Right to Commission
An estate agent's right to commission is governed by common law principles, with standard contract documents often including clauses related to commission entitlement. Commission disputes require a careful examination of the specific circumstances and the language of these clauses.
Impact of Estate Agents Act and Code of Conduct
The Estate Agents Act and the accompanying Code of Conduct can affect an estate agent's right to commission. The Act prohibits estate agents from receiving commission during periods of non-compliance with certain provisions, such as fidelity insurance requirements. Additionally, the Code of Conduct, particularly Clause 8, sets ethical standards for commission-related matters, and failure to adhere to it constitutes improper conduct.
When a commission dispute arises, estate agents must assess their ethical entitlement to commission based on the Code of Conduct.
Types of Commission Rights
This article distinguishes between two types of commission rights for estate agents:
The "Closing" Agent's Right to Payment of Commission: Typically, a contract of sale includes a clause obliging the seller to pay commission to the estate agent who closed the transaction. This clause is a crucial part of the contract, and the estate agent can enforce it against the seller.
The "Introducing" Agent's Right to Payment of Commission: Situations may arise where an estate agent introduces a prospective purchaser to a property, but the sale ultimately occurs without further intervention from that estate agent. The article discusses the conditions under which the introducing agent may still be entitled to commission.
To be entitled to commission, an estate agent must meet specific criteria. These include:
- Performance of a Mandate: The estate agent must perform the mandate as outlined in the client agreement. This typically involves introducing a willing and financially capable buyer, concluding a binding contract of sale, and ensuring the transaction aligns with the client's instructions.
- Effective Cause: The estate agent must demonstrate that their introduction was the effective cause of the transaction. This means their efforts were pivotal in facilitating the sale, considering factors like their professional involvement, the time elapsed since the introduction, and their ability to overcome financial obstacles.
Preventing Commission Disputes
The Code of Conduct emphasizes that estate agents should protect their clients' interests while avoiding commission disputes. To achieve this, agents should:
Explain commission implications clearly to clients, particularly in the case of sole mandates.
Inform the seller about the identity of any prospective purchasers they introduce to prevent disputes later.
Attempt to resolve double commission disputes among estate agents involved in a transaction.
Maintain open communication with clients about commission-related matters throughout the process.
Party Liable for Payment of Commission
Generally, the seller is responsible for paying the estate agent's commission, as they instruct the agent to find a purchaser. However, agreements between the estate agent and other parties can stipulate different arrangements. Without such agreements, the person who gave the estate agent the mandate is liable for payment.
Amount of Commission
The amount of an estate agent's commission is not prescribed by law, but it is usually specified in the mandate or the contract of sale. Commission can be a fixed amount or a percentage of the property's selling price.
Estate agents are free to advertise their commission rates but should avoid comparing their rates unfavorably with others. They should also refrain from suggesting that commission rates are legally fixed or regulated.
Withdrawing Commission from a Deposit
It is explicitly prohibited for estate agents to withdraw their commission from a deposit held in trust.
Legal Considerations
Estate agents operate within various legal relationships, including those with their clients, other parties to transactions, fellow estate agents, and the public. While common law establishes many of their rights and duties, the Estate Agents Act and its Code of Conduct introduce additional ethical standards and obligations. Violating these standards may result in disciplinary action and, in some cases, criminal charges.
In conclusion, understanding the complexities of estate agent commission, along with the legal and ethical considerations, is essential for both estate agents and their clients. Proper communication and adherence to ethical standards can help prevent commission disputes and ensure fair compensation for estate agents' services.
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