Complaint to The Property Ombudsman
Penyards Estate Agents Regarding Graham Evans, Lisa Evans
Gross Professional Misconduct
Multiple breaches of NAEA Code of Conduct
Multiple breaches of NFoPP Conduct and Membership Rules
Breach The Unfair Terms in Consumer Contracts Regulations 1999
Graham Evans and Lisa Evans of Penyards have acted in a wholly unprofessional manner with regard to a claim for a seller’s fee. They appear to be in breach of multiple clauses in the Code of Practices as outlined causing severe distress and financial loss to their clients.
Estate Agents are legally obliged to put their client’s interests above anyone else’s. They must obey their client’s lawful instructions and they must abide by industry Codes of Practise.
We outline below multiple instances of failure to uphold the client’s best interests and obey their instructions. We further outline the harassment, intimidation and deceitful practices in pursuit of a fee that according to all established rules of conduct and law, Penyards are not entitled to claim.
The member has acted throughout as a man on a personal quest with absolutely no attempt to seek mediation or an amicable resolution to the situation. He has generated substantial cost and is now hell-bent on bankruptcy proceedings.
The member has treated with contempt all NAEA and TPO guidelines as published
As the initial judgment was made in default ie the court failed present a defence and the subsequent hearing to set it aside was jeopardized by a failure by Penyards/Dutton Gregory to follow reasonable practise by communication openly and honestly, we respectfully ask that all proceedings be ordered halted until the complaint is dealt with by TPO and Trading Standards.
We ask that any fee and costs be ordered to be returned and a maximum award for time and stress in dealing with this.
Furthermore, due to the unprecedented actions of Penyards we ask that the severest disciplinary actions are taken.
1. Fair Contracts
On 14th February 2012 the contract was sent via email. Clause 10 breaches the The Unfair Terms in Consumer Contracts Regulations 1999.
Clause 10.1.2 was not negotiated and standard terms supplied by email. Clause 10.1.2 was highly geared in favour of Penyards in that it was not further defined, had no limitation (6 months) and was relied upon to cause significant distress and financial loss to the client.
3f Your Terms of Business and your contract must be consistent with the provisions of this Code of Practice and comply with the Unfair Terms in Consumer Contracts Regulations 1999 (as amended)
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
On 14th February a blank, unsigned contract was forwarded by email in breach of the code of practice
3t You must sign and date your Terms of Business before they are given to your client. The client should be asked to sign and be given a copy to retain. The client must be given sufficient time to read them before agreeing to instruct you (refer also to paragraph 3l above).
3. Duty of care
On multiple occasions Penyards failed in their duty of care to the client.
- They were specifically instructed not to tell viewers that the vendors were currently abroad. The reasoning is that it created an expectation that could not be delivered.
- Despite our specific written and verbal instructions on multiple occasions to promote the ‘significant qualities’ of the property every offer came with negotiations around our personal property and a lengthy mail as to why we should ‘drop the price’.
- One offer was for with and without the entire contents and all offers revolved around our position of being abroad.
- These negotiations were in breach of our instructions, our trust and the code of practice duty of care.
From Trading Standards Department If a real estate agent behaves in a way, which puts pressure on a client, they are in breach of the Real Estate Agents’ Code of Professional Conduct and Client Care.
4. Termination of contract
On 20th March 2013 an email was acknowledged by Penyards to terminate the contract. This decision was made due to (3).
- On receipt of termination Lisa Evans claimed: ‘The property has just gone into Hampshire Life which came out yesterday and already we have received some enquiries from it.’
- On looking at the publication there was no advert.
- In making this false statement there is a further breach of 1 of the code of practice.
On 23rd March 2013 our instructions to terminate had to be re-enforced as Mrs Evans again referred to the false marketing claim:
‘Moving forward we want to try a fresh approach. So the previous email dated the 20th march 2013, still stands.’ (terminate the contract)
- Again, Lisa Evans failed to follow instructions: ‘Given all we have done though and are trying to do, I don’t see why the property cannot stay with us and in conjunction with another agent.’
- 24th March we had to again instruct Mrs Evans to remove our property from the market: ‘please take the property off the market.’
- 25th March again Mrs Evans refuses to remove our property from the market and continues to attempt to retain us as clients: ‘Sorry forgot to say as a result of the price reduction you made a few weeks ago the property is also featured in the National magazine Country and Town House which comes out around the 5th of April too. given this magazine is normally paid for by the client and we have done it free of charge, surely it is only fair that we can continue to market throughout April?’
On termination of contract Penyards were obliged to follow 3n of the code of practice. They failed to do so.
3n On receipt of the client’s instruction, or on your own decision, to terminate your instruction, you must promptly give him written confirmation that you are no longer acting for him, confirm the actual date of termination, and give details of any fees or additional costs the client owes you.
5. Fee Entitlement and Client Liability
Penyards breached all points of the code of practice with regard to termination of contract
3q At the time of accepting instructions from a client, you must point out and explain clearly to that client in your written Terms of Business:
- that you may be entitled to a commission fee if that client terminates your instruction and a buyer that you have introduced goes on to exchange contracts on the property through another agent within 6 months of the date your instruction ended..
3r At the time of the termination of the instruction, you must explain clearly in writing any continuing liability the client may have to pay you a commission fee and any circumstances in which he may otherwise have to pay more than one commission fee.
Harass/Harassment. Means to act in a threatening or oppressive manner likely to cause alarm, annoyance and/or distress.
- In May 2013 a new agent was appointed and a new marketing campaign initiated.
- In July 2013 an offer was accepted through the new agents and contracts subsequently exchanged. More than the statutory six months after the termination of Penyard’s contract.
General duty to uphold high standards of ethical and professional behaviour
- 12.1 No member shall do any act (whether in his business or otherwise) which:
- 12.1.1 Involves dishonesty, deceitful behaviour, or misrepresentation; or
- 12.1.2 Involves unprofessional practice or practice that is unfair to members of the public; or
- 12.1.3 In any other way brings the NFoPP or any of its divisions or subsidiaries into disrepute.
- Lisa Evans made multiple breaches of this clause and was deceitful in her handling of the termination by stating that she had placed adverts in publications, which was simply untrue.
- Early July a number of unsolicited emails were received from Lisa Evans. She was a personal friend of Ms Clarke, the partner of Mr Parker (purchaser) and had heard that he was now looking at property in the area again. The aim of Evans was to ‘try to negotiate a deal’ however it would be significantly low: ‘whilst they would still be interested in pursuing xxxxxxxxx it would only be at significantly less than the offer that had been accepted last time.’
- We were made aware that she had advised the Parkers that the vendors may accept an offer as low as £1.1m
- After a number of typically aggressive emails where Evans began referring to their entitlement to a fee and that she ‘didn’t want us to be liable for two fees.
- On 10th July Evans was instructed to stop harassing all parties concerned and to deal with the current agents: ‘YOU ARE INSTRUCTED TO DEAL WITH ROB. YOU ARE TO HAVE NO CONTRACT WITH US AND I WILL DEAL WITH YOUR AGENTS COMMENTS TO THE PARKERS TO OFFER £1.1 LATER. DO NOT COMMUNICATE WITH US OR THE xxxxxx FURTHER.’
- The low offer was later addressed with Mrs Evans by way of comments made to the new agent by Mr xxxxx. Mr xxxxxx had confirmed that Mrs Evans had suggested that the property could be obtained for £1.1M
- Mrs Evans attacked the the agents and suggested that they were ‘lying’.
3b You must not directly or indirectly harass any person in order to gain instructions. Nor must you repeatedly try to gain instructions in a way likely to cause offence.
- At this point there is no sale or exchange of contracts.
No agency fee is due to anyone yet on 3rd August an email was received from Graham Evans. In it he advices that he had been trying to contact our lawyer who didn’t want to take the calls as there was nothing to discuss. At this point Evans is already making threats:
‘Following my last email I have now left two messages for your lawyer and the previous communication, all of which have failed to receive either an acknowledgement or confirmation.
In the event that you fail to respond to this confirming, as in the attached email, our introduction and entitlement to our fee then our company Dutton Gregory have my instructions to apply to the court for a freezing order on Monday to ensure that our rightful demand for payment is met and that any expenses liabilities that are incurred in pursuit of this will also form part of our claim.’
- 4th Aug 2013. We received a phone call at approx 2am GMT where Mr Evans appeared drunk, slurring threats to ‘get my money’ and ‘freeze our assets’. The conversation was terminated and an email sent: ‘I am very surprised you would choose to call us on a Sunday afternoon, which is 1.30am for you. I have have recently received messages from our solicitor that you are leaving messages on his phone also. This is not normal behaviour! ‘I’ve received your email and will choose to answer it in my own time.
- For the record there is no contracted sale at this point. When there is I will address your comments. Until such time AGAIN you are requested to stop contacting all parties concerned.’
- Throughout that day further emails and threats were received from Evans. 4th August was supposed to be our daughter’s birthday party but it was ruined by Evan’s actions causing sever upset and distress.
- In summary and in response to the overwhelming harassment on 4th August it was suggested that Evans seek a third party clarification of his entitlement or we seek mediation.
- The response from Evans was not only intimidatory, highly unprofessional but shocking: ‘I think given the spurious nature of your response I am more than content to leave this to the lawyers and judges to adjudicate over the position. You may however be advised that I will be relentless in my pursuit of this by fair and legal means.
- On 5th August it was decided that we would seek a ruling from TPO.
In-house Complaints Handling
- Penyards failed to handle the complaint before Ombudsman in breach of code 13 of the code of practice.
As set out in the NFoPP Conduct and Membership Rules, a Member must have an in-house complaints procedure (appropriate to its size and structure) and any person wishing to make a formal written complaint about the standards of service received must be made aware (in writing) of those procedures upon request. Following the conclusion of the Member Firm’s in-house complaint process, where an impasse has been reached or a complainant remains unsatisfied; the complainant must be informed of the contact details for APIP should they wish to pursue their complaint.
- On 5th August a full complaint was sent to Penyards.
- Evan’s failed to follow any form of complaint procedure whatsoever. Bearing in mind we were seeking clarification of Penyard’s entitlement and attempting to avoid further conflict and potential costs.
- On 5th August Evans responded to the complaint: ‘As stated in my communication yesterday the matter has now been refereed to our company solicitors who have my instructions to proceed to protect my firms interest in this and to instigate the procedures for a freezing order.’
- On 7th August a complaint was made to TPO.033877
- Unfortunately the ombudsman could not make a decision on the entitlement to a fee as at that stage there simply was no sale.
- During this time Mr Parker had to be made aware of the harassment and threats to freeze the sale almost resulting in the loss of the sale on several occasions.
- During this time Evan’s threats we’re now being made through his solicitor who also refused to seek mediation.
- On 21st August xxxx from Spencers (new Agents) attempted to resolve the situation by liaising directly with Evans. He had sought advice from their lawyers and NAEA. The conclusion was that despite everything, Penyards could not prove to be ‘the effective cause of the sale’ therefore were not entitled to a fee. However, Batton was still willing to talk it through as outlined in a letter dated 15th August:Further to our conversation in recent days I thought I should respond to clarify our position in regard to the recently agreed sale to Mr Parker. We have today taken both legal advice and also discussed the situation in detail with the National Association of Estate Agents’ dispute department. In both cases the advice has been very clear in terms of our introduction.Payment of commission to an estate agent is due when that agent was the ‘effective cause’ of a successful sale, meaning it was as a direct result of their actions that the buyer proceeded to complete the purchase. Whilst no one is denying that Penyards had previous dealings with Mr Parker a little under a year ago their claim is, at best, highly tenuous as they were obviously not the ‘effective cause’ in selling the property, in fact the sale fell through so that would suggest they were quite the opposite.The NAEA noted with interest, that this is a completely fresh marketing campaign, asking price and sale price and therefore bears no resemblance to the previous marketing carried out by Penyards. This would further endorse the view that they were not the ‘effective cause’.
- Evans responded in the most unprofessional and insulting manner in a letter on 21st August: ‘Now let us address these differing professional standards. I will also deal with the expression you have used in your letter to Dutton Gregory dated 14th August ‘normal professional etiquette’. I am bewildered by your double standards, or should I in fact so no apparent standards at all, you have completely and utterly contradicted everything that you have previously held as credible and honourable. It reminds me of the old western movies, ‘cowboys’ speak with fork tongue.’
- Despite requests from several parties for clarification and even mediation, Evans’ final position was: ‘I refer to my previous statements confirming our position. That is that once contracts have been exchanged if it is not confirmed that we will receive our fee in accordance with our terms and conditions of business Dutton Gregory will be issued with instructions to immediately instigate legal proceedings.Having stated the above and as a matter of mediation I will however make one concession. This is subject to confirmation in writing from the vendors solicitors that we will be paid in full and final settlement on the date of completion and that these are irrevocable instructions. I will accept 1% plus VAT. This however is to be confirmed in writing no later than12 noon on Tuesday 27th August.’
- On 24th August Dutton Gregory attempted to contact xxxxxxxx with a threat to instigate legal proceedings and claim £21,750 to an email we were having issues with (an email address). Having checked our servers a bounced mail notification found and was forwarded directly to Dutton Gregory. The mail showed that there was an issue and that mails sent to that address would most likely bounce: Mail was not delivered to the following recipients: (an email address) Reply text: 550 User ‘spam’ Unknown
- Evans had several contacts for us including our physical address and numerous email contacts but failed to send any papers to any alternative address.
- The sale finally was concluded some SEVEN months after termination of contract
- Nothing more was heard from Evans or their solicitors and it was assumed that they had accepted their inability to claim a fee.
- Sometime in June 2014 we were shocked to receive court papers via a private detective at our home in New Zealand. It was from Penyards claiming fees plus ‘substantial’ costs.
- A defence was submitted by email and by post, it was acknowledged by the courts and further amended documents were sent.
- Nothing more was heard and we perhaps naively, assumed the case was won until we found paperwork some months later during Christmas 2014 at an address we no longer lived at.
- It appears that despite receiving numerous bounces to the email address (an email address) and having employed a detective to locate our current address, important papers were sent only to undeliverable addresses.
- To our amazement the papers outline a judgment was made in favour of Penyards by ‘default’. The court had failed to present our defence. The fee had been awarded plus substantial costs.
- On discovering this paperwork we instructed UK solicitors at yet more cost (£6k) to have it set aside however, due to the time delays they were skeptical.
- We felt we had no choice other than to have our defence heard so instructed our solicitors to try and have the judgement set aside.
- By sending paperwork to undeliverable addresses Penyards had manufactured an undefendable position for us. This was further compounded by trying to seek competent legal advice from New Zealand. The only way to communicate was by email or calls late at night putting us at a severe disadvantage and considerable costs.
- 26th February the judge ruled not to set aside the default judgment mainly due to the delay: ‘The judge held that it would not be proportionate to set aside judgment given the costs that had been incurred – as judgment had been given long ago and costs had been assessed. He referred to the delay point.’
- On 13th March 2015 a letter was received from Pitt&Moore an New Zealand company now instructed by Penyards.
- It now appears that now Penyard’s are at enforcement stage they have chosen to use the correct address.
- Costs are now in the region of £26,000 plus the default judgment. The letter regards enforcement and the threat of bankruptcy. This could result in the loss of our home in New Zealand and affect our immigration.
Complaint to Penyards
On 17th March this complaint was sent to Penyards
- There was no complaint handling and we simply received yet more threats
- Our lawyers here made the offer to hold the funds in trust until the complaint was dealt with by TPO the reply was in the same tone and manner as all correspondence: ‘My solicitors in New Zealand have been given my irrevocable instructions, that is to say, that in the event that you fail in anyway to comply with the order of the Courts then they are to enforce bankruptcy proceedings against both yourself and Mrs xxxxxx immediately following the court deadline.’
All Correspondence in support of this complaint are available. As there is so much it would expedite matters if a request was made for required documents.
Replies from the TPO are available on this website.