Terms and Conditions of Business of National Residential
Between Property Owners Selling Property Through or To National Residential.
The following expressions shall have the following meanings:
- “Agent” means “National Residential” of 1 Hunters Walk, Canal Street, Chester CH1 4EB;
- “Client” means any person who purchases Services from the Agent;
- “Agreement” means a proposal, registration form, quotation or other similar object describing the Services;
- “Services” means the agency services as described in the Agreement;
- “Property” means the property which belongs to the Client and is to be sold by the Agent;
- “Buyer” means the person contracted to purchase the Property from the Client;
- “Fees” means the agency commission due to the Agent from the Client for providing the Services;
- “Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Agent;
- “Agreement” means the contract between the Agent and the Client for the provision of the Services incorporating these Terms and Conditions;
- Arbitrator” is the party nominated to resolve a dispute between the Agent and the Client.
- These Terms and Conditions shall apply to the Agreement for the supply of Services by the Agent to the Client and shall supersede any other documentation or communication between parties.
- Any variation to these Terms and Conditions must be agreed in writing by the Agent.
- Terms and Conditions shall be attached to any Sole Selling Rights Agreement (the “Agreement”) and signed and returned to the Agent by the Client.
- Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Agent may be entitled in relation to the Services, by virtue of any statute, law or regulation.
3. SOLE SELLING RIGHTS AGREEMENT (THE “AGREEMENT”)
We are required by the Estate Agents Act 1979 to set out the definition of “Sole Selling Rights”:
This is a sole selling rights agreement between the clients named overleaf (You)and National Residential, 1 Hunters Walk, Chester, Cheshire CH1 4EB (Us, We).
- This means you will be liable to pay a fee to us, in addition to any other costs or charges agreed, in each of the following circumstances and our fee will become due and payable in full on the occurrence of these events:
i. If unconditional contracts for the sale of the property are exchanged in the period during which we have sole selling rights, even if the purchaser was not found by us but another agent or by any other person, including yourself;ii. You will be liable to pay us our commission on completion of sale of your property up to 12 months after termination of this Agreement, if the purchaser was introduced by us or by an agent we instructed on your behalf during the period in which we had sole selling rights;iii. If a ready and willing purchaser agrees to buy your property in the period during which we have sole selling rights at a price of at least the Reserve/Purchase Price, but you withdraw from this Agreement, even if the sale does not proceed to completion.
- The duration of this agreement is 8 weeks from either the date of signing, or the Marketing Commencement Date indicated overleaf, whichever is the later. After 8 weeks this agreement will, by mutual agreement, either end, or be extended for a further 8 weeks. Any agreed extension will operate on the same terms as this agreement, with the exception of the marketing and reserve price which may be altered. Termination can be effected by either party giving 14 days written notice, subject to the agreed term of the agreement. In the event that you terminate this agency agreement all agreed fees will be payable to us..
- Our fees are either fixed or a percentage of the ultimate selling price, as noted & agreed overleaf. Fixed fees will not change regardless of the final selling price. For percentage fees the commission payable will increase or decrease depending on the final selling price. VAT is payable on all fees and it is included in all fees quoted. Where any change in the VAT rate occurs in the future we will amend our invoice to reflect those changes..
- In the event that you have instructed any other agency in respect of selling your Property prior to us then, subject to their terms & conditions, you may also be liable for their commission fee in addition to our fee. Please check your contracts carefully and seek legal advice if necessary.
- All negotiations in relation to your property must be carried out through us. Upon your acceptance of an offer from a purchaser who pays us a holding deposit to buy your property you agree and instruct us to immediately cease marketing the property and refuse to accept any further offers. Where the buyer fails to complete a purchase on your property within agreed timescales the holding deposit will be payable to you, providing the failed purchase was not as a result of your actions. You agree that we are able to deduct any and all our fees from this holding deposit, regardless of whether the sale takes place.
- A valid Energy Performance Certificate (EPC) is required for all properties offered for sale. The EPC must at least be commissioned before marketing commences and should be in place within 7 days. If it is not in place within 28 days the property must be withdrawn from the market until the EPC is available, You must treat any requests from our energy assessors as a matter of priority.
- A valid Home Report is required for all properties offered for sale in Scotland. Please treat any requests from our Home Report provider as a matter of priority.
- In line with The Money Laundering Regulations 2007, as a regulated profession,we are duty bound to carry out due diligence on all of our clients to confirm their identity. Rather than traditional methods in which you would have to produce multiple utility bills and a photographic ID we use an electronic verification system. This system allows us to verify you from basic details using electronic data, however it is not a credit check of any kind so will have no effect on you or your credit history. By signing this agreement as the seller you understand that we will undertake a search with Experian for the purposes of verifying your identity. To do so Experian may check the details you supply against any particulars on any database (public or otherwise)to which they have access. They may also use your details in the future to assist other companies for verification purposes. A record of the search will be retained.
- Unless specific instructions to the contrary are provided, you give us authority to erect a For Sale board within the curtilage of the property. We accept liability for any claim arising in connection with the board, unless the action arises as a result of a further board being erected by another agent or there is a restriction on the placement of a board that you have not advised us of. The For Sale board will remain at all times our property.
- Prospective purchasers may be provided with a range of services including, mortgage facilities, life insurance, property insurance, removal services, and conveyancing services by us or third parties, for which fees or commission may be received. This does not affect our obligation to you to secure the best reasonably available price for your property.
- We reserve the right to sub-instruct additional agents, where it is believed to be in your best interests, at no additional cost to you.
- Under the Consumer Protection from Unfair Trading Regulations and the Ombudsman’s Code of Practice anything we say or publish about your property must be accurate. It is therefore very important that you read the details we produce to describe your property very carefully and immediately inform us if there is anything that is inaccurate. In addition, we are obliged to pass on any material information that would impact on a potential buyer’s transactional decision and so you must advise us of anything you feel is relevant to this.
- Where you have any connection to our agency we must disclose details to any prospective buyer. Please assist us by informing us immediately if you are aware of any business association, family relationship or other connection you might have with this agency, or any of our employees.
- You will instruct your Solicitor to pay us all sums due to us under the terms of this agreement from the proceeds of sale on the day of completion of the sale and authorise us to contact your solicitor directly to inform them of this arrangement and the sums due. Settlement of commissions and fees must be made within seven days of becoming due. In the event of any account remaining unpaid for more than 7 days from the due date, then we reserve the right to charge simple interest on any sum outstanding at the Law Society Interest Rate calculated on a daily basis. If we find it necessary to use solicitors or other professional parties to recover any outstanding commission or expenses, you will, be required to pay our reasonable costs and fees incurred.
- We accept no liability or responsibility for the maintenance or repair of, or for any damage to, the property any time. If the property is vacant when adverse weather conditions are likely, frost damage may occur to water and heating systems and sanitary appliances. You are strongly recommended to take all necessary action to protect the property from such risks and to ensure that you have adequate insurance cover.
- Nationwide Property Developments Limited and ‘The Online National Residential Estate Agency Limited have an internal complaints procedure, details of which are available upon request by emailing: email@example.com and by calling 01244 341066. Both companies are members of the Property Ombudsman’s Scheme should you feel it necessary to continue with your complaint. By entering into this agreement you agree that if the Ombudsman asks for information about any aspect of our dealings with you we can provide the information; whether that be in relation to a complaint, or their monitoring process. A copy of their Code of Practice and the Consumer Guide is available from www.tpos.co.uk
- We are registered with the Information Commissioner as a data processor with the registration number ZA081795.
- Our liability to you for any loss or damage claimed in respect of the instruction shall be limited to an aggregate sum not exceeding 5 times the amount of the Commission.
- Any and all disputes however arising and including but not limited to disputes arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of England and Wales.
- The Services are as described in the Agreement.
- Any variation to the Services must be agreed by the Agent in writing.
- The Services shall commence and finish on the dates specified on the Agreement where appropriate unless terminated according to the terms of this Agreement.
- Dates given for the commencement of the Services are estimates only and not guaranteed. Time for commencement shall not be of the essence of the Agreement and the Agent shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the Services.
5. FOR SALE BOARDS
The Seller consents to the Agent erecting a display board at the Property to assist in the marketing of the Property and the Agent shall adhere to the relevant statutory regulations relating to the display of such boards.
6. PRICE AND PAYMENT OF FEES
- The price for Services is as specified in the Agreement and is subject to VAT any other charges as outlined in that Agreement.
- The terms for payment of the Fees and any other charges are as specified in the Agreement.
- The Fees shall become due on the completion of the contract of sale of the Property.
- The Client shall be liable for all agreed expenses due to the Agent.
- The Client must settle all payments as specified in the Agreement and are due within 7 days of completion of sale of the Property as determined by the Agent.
- The Client will pay interest on all late payments at a rate of 4% per annum above the base lending rate of National Westminster Bank plc
- The Agent is also entitled to recover all reasonable expenses incurred in obtaining payment from the Client where any payment due to the Agent is late.
- The Client is not entitled to withhold any monies due to the Agent.
- The Agent is entitled to vary the price to take account of:
- any additional Services requested by the Client which were not included in the original Agreement;
- any reasonable increase in rates, if applicable;
and any variation must be intimated to the Client in writing by the Agent.
- In the event that the Client seeks to cancel the Agreement for Services the Client shall be responsible to pay the Agent for any expenses incurred up to that date.
7. CLIENT OBLIGATIONS
- The Client agrees to co-operate with the Agent as may be required.
- The Client shall provide the Agent with keys to the Property if the Agent is to be responsible for viewings.
- The Client shall permit the Agent access to the Property for the purpose of preparing marketing materials and accompanied viewings for potential purchasers.
- The Client remains responsible for the Property throughout the period of this Agreement and is advised to take proper precautions for unoccupied dwellings.
- The Client shall instruct an Energy Performance Certificate for the Property prior to the marketing of the Property, or the Client shall authorise the Agent to instruct an Energy Performance Certificate on their behalf.
- The Client shall be responsible for the costs of the Energy Performance Certificate.
8. SCOTLAND HOME REPORTS
To adhere to Part 5 of the Housing Act 2004, marketing will not commence on your property until we are in possession of a valid Home Report. Therefore please treat any requests from the Home Report Companies as a matter of priority.
- The Client shall ensure a Home Report is obtained prior to the marketing of the Property or instruct and co-operate fully with the Agent in the preparation of such a report.
- The Client is responsible for all costs relating to the provision of the Home Report.
9. AGENT OBLIGATIONS
- The Agent shall supply the Services as specified in the Agreement.
- The Agent shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice and statutory obligations.
- The Agent shall be a member of an accredited redress scheme in compliance with the Consumers, Estate Agents and Redress Act 2007.
- The Agent shall forward all offers to purchase the Property to the Client or their appointed representative promptly and accurately unless the offer is of a type that the Client has specifically requested the Agent not to pass on.
- The Agent shall keep a record of all submitted offers on file and shall make that record available to the Client on request.
- If the Agent has been asked by the Client to do so, the Agent shall accompany all potential purchasers, tradesmen or surveyors when they visit the Property and shall not permit any unaccompanied visits unless prior approval from the Client has been obtained.
- The Agent shall seek to supervise any visitors to the Property but cannot be held responsible for the actions of any third parties.
- The Agent shall take into consideration the prevailing market conditions when setting an asking price but confirms that this figure is not a formal valuation of the Property.
- The Agent shall, if instructed by the Client, commission an Energy Performance Certificate prior to the marketing of the Property.
- (FOR SCOTLAND) The Agent shall, if instructed by the Client, commission and prepare a Home Report prior to the marketing of the Property.
10. PROPERTY MIS-DESCRIPTIONS ACT 1991
It is the Clients responsibility to check the descriptions of the Property in the schedule provided by the Agent, on the website and on other relevant marketing material and notify the Agent of any amendments required. The Client shall indemnify the Agent and any other associated parties against any claim made in respect of any mis-description that arises out of the Client’s failure to adhere to this condition.
- Following the Sole Agency Period expiration, the Agreement will continue indefinitely until it is terminated by either party giving not less than 14 days written notice. Such notice shall take effect on the second business day after it was posted..
- The Client may terminate the Agreement if the Agent fails to comply with any aspect of these Terms and Conditions and this failure continues for a period of 14 days after notification of non-compliance is given.
- The Agent may terminate the Agreement if the Client has failed to make over any payment due within 14 days of the sum being requested.
- Either party may terminate the Agreement by notice in writing to the other if:
- the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
- the other party commits a material breach of these Terms and Conditions which cannot be remedied under any circumstances; or
- the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
- the other party ceases to carry on its business or substantially the whole of its business; or
- the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
- In the event of termination the Client must make over to the Agent any payment for work done and expenses incurred up to the date of termination.
- Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
- Any dispute arising under this Agreement will be referred to and decided by the Property Ombudsman.
- A party wishing to refer a dispute to the Property Ombudsman shall advise the other party of this intention in writing at any time during the term of this Agreement. The dispute must then be referred to the Property Ombudsman within seven (7) days of this intention being intimated.
- The Property Ombudsman shall act impartially and be free to take the initiative in ascertaining the facts and the law. The Property Ombudsman must reach a decision within twenty eight (28) days of referral or such longer period as the parties may agree.
- During the period of arbitration both parties must continue with their obligations as stated in this Agreement.
- The decision of the Property Ombudsman is binding on both parties unless and until revised by legal proceedings or agreement by both parties.
Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
14. LIMITATION OF LIABILITY
Nothing in these Terms and Conditions shall exclude or limit the liability of the Agent for death or personal injury, however the Agent shall not be liable for any direct loss or damage suffered by the Client or any third party howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Agent in the insurance year in which the Client’s claim is first notified.
The Client shall indemnify the Agent against all claims, costs and expenses which the Agent may incur and which arise directly or indirectly from the Client’s breach of any of its obligations under these Terms and Conditions.
16. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Agent.
18. THIRD PARTY RIGHTS
Nothing in these Terms and Conditions intend to or confer any rights on a third party.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Agreement or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
22. ENTIRE AGREEMENT
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
23. GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the law of England OR Scotland and the parties hereby submit to the exclusive jurisdiction of the English OR Scottish courts.
For information on Buyer’s Terms & Conditions, please see our ‘Online Bidding Terms & Conditions’ PDF