The Ombudsman Files – ‘conditional selling’ exposed by TPO

A complaint brought to The Property Ombudsman (TPO) from buyers stated that their agent forced them to use their in-house mortgage broker to secure the sale of the property, as they said that the agent made it a condition of the sale.

The buyers believed that the agent should reimburse the £698 fee that they paid for the broker’s service.

Investigation

In their submission to The Property Ombudsman, the agent said that buyers are not mandated to use their in-house services for conveyancing or mortgages and are free to opt for external services. The agent clarified that in this instance, using their in-house mortgage broker was not a condition for the property sale, and they did not exert pressure on the buyers to do so.

They added that the buyers never raised concerns with them or the broker regarding the use of this service, maintaining that it was the buyers’ choice to engage the in-house broker for their property purchase.

In line with paragraphs 1e, 2f, and 9d of the TPO Code of Practice for Residential Estate Agents 2019, the agent could not, by law, make it a condition that the buyers must use services offered by them or another party for their offer to be passed onto the sellers. Additionally, the agent was expected to refrain from any actions that could be interpreted as aggressive behaviour, such as pressuring buyers to use their in-house mortgage broker.

Upon review, the Ombudsman noted that the buyers initially made an offer of £250,000, subsequently increasing it to £260,000 two days later when asked for their best and final offer. The agent provided written confirmation of both offers to the buyers and sellers on the respective days. Furthermore, on the day of the initial offer, the buyers met with the in-house broker but opted not to proceed after learning of the associated £698 fee, sticking with their original broker which they were satisfied provided a better service at no charge.

The buyers claimed that when they presented their best and final offer, the agent informed them that the sellers agreed to accept their offer solely because they were using the in-house broker. They alleged the agent also mentioned that the sellers rejected a higher offer from another party because the buyers agreed to use the in-house services, asserting it would make the sale of the property “easier” if financing was organised in-house.

The buyers said that based on what they were told by the agent, they felt they had no choice but to agree to use the in-house service and pay £698 to do so.

Evidence

They sent two emails to the in-house broker, one expressing excitement to move forward and another indicating they felt pressured into using the service.

The Ombudsman would have expected the agent to provide evidence of communication with the sellers regarding best and final offers being requested and received and any subsequent discussions regarding offer acceptance. The agent was also obliged to advise the sellers in writing if the buyers were using any of the in-house services being offered.

The agent was unable to provide any of the expected evidence making it difficult for the Ombudsman to consider the full context of the conversation the buyers said took place during which they were pressured into using the in-house service.

The agent maintained that the use of such a service was not made conditional, and relied on an email as proof that the buyers were happy to proceed with that service.

In the absence of contrary evidence and considering the sequence of events, the Ombudsman accepted that the agent provided information leading the buyers to believe they had to use the in-house broker for the purchase to proceed, which likely exerted some pressure on them.

The Ombudsman found it reasonable to assume that the buyers felt compelled to use the in-house broker, as indicated by their communications with the broker and their payment of £698, despite preferring their original broker’s services.

Outcome

The Ombudsman supported the complaint and considered that the circumstances merited an award of compensation. The award of £150 reflected the avoidable aggravation and inconvenience caused to the buyers as a result of the failure of the agent to fulfil their obligations under relevant sections of the Code.