Terms and Conditions of Business of 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”:
- You will be liable to pay remuneration to us, 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 we have sole selling rights, even if the purchaser was not found by us but another agent or by any other person, including yourself;
- If unconditional contracts for the sale of the property are exchanged after the expiry of the period during which we have sole selling rights but to a purchaser who was introduced to you during that period or with whom we had negotiations about the property during that period.
- The duration of the sole agency period (the “Sole Agency Period”) is 16 weeks from the date of signing this agreement (the “Agreement”) or the Marketing Commencement Date, whichever is the later.
- 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.
- In the event that you have instructed any other agency in respect of selling your Property prior to National Residential then, subject to their terms and conditions, you may also be liable for their commission fee in addition to that of National Residential. Please check your contracts carefully and seek legal advice if necessary.
- By signing this agreement you authorise National Residential to dis-instruct any other agencies on your behalf.
- You are liable for National Residential Agency Commission if you exchange contracts for the sale of the property within six months after termination
- 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.