Another High Court case, this time in Durban, KwaZulu Natal, has focussed the residential estate marketing sectors attention on what happens if and when an estate agent introduces a buyer to a property but fails to achieve a sale and subsequently another agent sells the same property to the same buyer.
In the case Wakefields Real Estate v Attree and Others the judge ruled that the first agent, the plaintiff, had not been the effective cause of the sale and was therefore not entitled to commission on the sale '“ even though she had been the first to show the property to the eventual buyer.
Other cases have, however, resulted in different rulings because the circumstances have always varied.
'These cases,' says Tony Clarke, MD of Rawson Properties, 'always come back to an interpretation of the phrase 'effective cause of the sale' and obviously in every case assessing the degree to which the first agent helped bring about a sale is crucial to the ruling'
In this particular case, said Clarke, the first agent had (understandably) given up on the buyer after learning that the price asked (R3,4 million) was far too high and that the buyer had a big financial commitment elsewhere.
Later, this commitment fell away and the second agent (in fact, two agents operating in partnership) was able to negotiate a R500 000 reduction in the price which made the purchase possible for the buyer now that he had no other commitments.
'What this case teaches us yet again,' said Clarke, 'is that the second agent in a situation of this kind must totally indemnify the seller against any further commission claims.
'If there is to be a second claim, the agent has a moral duty to deal with it himself '“ the seller, who cannot be expected to understand property law on this matter, should not be landed in a two payment situation'
Just how complicated these matters can be, said Clarke, is shown by the fact that in this case the judge cited and read extracts from no less than six previous similar cases.
