Campaign against standard term estate agency contracts

Christopher Hamer ‘Cannot’ Enforce The Property Ombudsman Code of Practice

Christopher Hamer: The Property Ombudsman on Redress

christopher-hamer-cropped‘My role as The Property Ombudsman (TPO) is to provide an independent facility for resolving disputes between firms which are registered with the scheme and buyers, sellers of property in the UK.

The Code of Practice for Residential Sales has received independent accreditation under the OFT’s Consumer Codes Approval Scheme (CCAS).  That is important for the credibility of the Code.’

Chris Hamer

As documented in this website it appears that Grahame Evans was in breach of numerous TPO guidelines so the victim of Penyards turned to TPO for help.

In the first instance Evans had threatened to freeze assets, to take legal action, to disrupt a sale and had called the victim in the middle of the night making threats and slurring his words.

The victim felt these actions went far and beyond normal professional practices and made a complaint to TPO.

The complaint was lengthy but the reply was summarised as ‘ TPO were unable to act as no sale had even take place’.

This wasn’t the ‘protection’ or even fair consideration the victim had been led to expect.

There was a protracted exchange which dealt with barriers and objections. The victim felt they were being fobbed off and were feeling more and more helpless.

They had gone to TPO to help get clarification on their situation including the clause we now understand seems to breach the Unfair Contracts Act.

The victim claims that if TPO had acted and helped clarify the situation and mediated as requested then all this could have been resolved two years ago.

But the fact is they didn’t help and Evans has been allowed to continue.

TPO guidelines are crystal clear and it is also crystal clear that Evans breached multiple clauses.

The most important are that:

  • The agent should not use a contract that is in breach of the Unfair Contracts Act
  • That on termination of a contract the terms of termination should be clearly laid out so that the customer knows exactly where they stand
  • That the contract has a six month time frame

The full complaint is here:

Now as the breaches by Evans are black and white the victim again turned to TPO for support.

  • The term appears to be unenforceable
  • Penyards failed in their duty of care
  • Penyards failed to outline the terms of termination
  • The six months was exceeded

It has to be understood that although TPO claims to:

‘provide fair and reasonable resolutions to disputes between members of the public and estate agents who are members of the TPO Scheme or who have registered with TPO as an Approved Estate Agents Redress Scheme. Firms who are members follow the TPO Code of Practice for Residential Sales.’

It is not a straightforward process.  There are so many hoops to jump through it makes life very hard for the lay person to succeed.  In fact it is the victim’s opinion that the scheme is simply a ‘clearinghouse for complaints’ and ‘the system is in place to protect its members’.

When the victim first complained they felt they were being sent round in circles.  They followed the guidelines, made a complaint to Evans who ignored any attempts at mediation and simply threatened legal action:

I hereby confirm my final formal instruction. Upon exchange of contracts if we do not receive confirmation from your solicitor of your irrevocable instruction to honour the terms and conditions of business, as previously set out, and payment is not received on the date set for completion, then my solicitors will be issued with instructions to make full recovery of all sums due through whatever process they deem most expedient.’

This was Evan’s ‘final response’.

When the complaint was made TPO replied:

‘The Ombudsman is unable to fully review a complaint until all of your complaints have been raised with the agent in writing and they have had an opportunity to respond to the matters before the complaint is referred to this office.’

Was the victim justified in feeling they were being sent round in circles?

The complaint simply appeared to fall on deaf ears and went nowhere. So at this point, as a sale had not even taken place it was decided to leave it and complain at a later date should it be necessary.

It certainly became necessary some considerable time later!

By the time the second complaint went into TPO it was clear Evans had complete contempt for TPO guidelines that were supposed to be in place to prevent the very situation the victims found themselves in.

A second more serious complaint was made providing full evidence and documentation.

The case seemed black and white!

Then, to the surprise of the complainant rather than a full and thorough investigation into the breaches of TPO guidelines Hamer outlined the reasons for not acting.

Hamer cites the default judgement.  However as the judgement had absolutely nothing to do with TPO guidelines and was made by default we find it hard to understand the relevance.

The TPO have a published code of practice, Penyards are a member of the scheme and commit to abide by the code.  Evans breaches multiple codes therefore surely TPO must take action?

According to Hamer it appears not and in doing so have facilitated the situation the victim now faces:

Att Mr Hammer

As a layperson we have no knowledge of the hurdles and technicalities put up to prevent a thorough and fair investigation but do understand we should be treated fairly and our grievances heard and with a case so serious as this expect some grace with administration failures.  

‘By dealing with a Member of the TPO, the public may be confident about the agent’s approach in its dealings with actual and potential buyers and sellers of residential property or lettings in the UK.

Many estate agents have in addition agreed to follow the TPO Code of Practice for Residential Estate Agents. Estate agents signing up to this Code of Practice are required to provide additional consumer protection that goes beyond that required by the law.’

From the experience we have it appears that you are not as advertised and appear to be simply a clearing house set up to whitewash complaints of the utmost severity (as you have just tried to do). You have a published code of practise set up to apparently protect innocent consumers which has been treated with contempt and arrogance by a rogue agent.

‘The Ombudsman’s role is to reach a resolution of unresolved disputes in full and final settlement and, where appropriate, he will make an appropriate award of financial compensation or other action for example make an apology. Therefore, if you feel that you have been disadvantaged by the actions or inactions of a TPO member, you have access to an independent dispute resolution service and can be certain of receiving a fair and reasonable judgment of your complaint.’

If we feel we have been disadvantaged???

This is so serious it could leave us homeless and thrown out of New Zealand. By riding roughshod over your codes this agent has managed to not only secure a DEFAULT judgement but has generated MASSIVE costs in the process.

We came to you for help in resolving this issue back in 2013 and were fobbed off stating that ‘as there was no sale you couldn’t comment’ and as far as I remember we were told to come back if issues arose.  If you have dealt with the complaint back then we would not be in this situation now.

This is a fresh complaint and has absolutely NOT been dealt with fairly, openly or even given full consideration.

With regard to the court process you keep referring to this has NOT dealt with any of the breaches of your code.  

Even if the court ordered that we have to pay the fee, the actions of professional misconduct and multiple breaches of TPO codes are a separate issue.  Your key code states that a contract should not contain unfair terms – the terms used to date by the agent appear to be in breach of your guidelines along with multiple others.  If you have taken our complaint seriously in 2013 and looked into this, then there would be no grounds to take this to court.

The issues raised in the complaint have not been heard by a court.  THE COURT DID NOT PRESENT OUR DEFENCE – THIS IS NOT FAIR OR REASONABLE.

Evans was asked to go to arbitration in the first instance to prove his terms were compliant and that he was fair in claiming the fee as is reasonable in these cases.  He ignored the complaint and chose to work through his solicitor.  He filed a court claim over a year later, which we found almost impossible to defend properly as we are now in New Zealand.  We did however send a defence by mail and post which the court did not present so a default judgement was made in our absence. The second case was made by us to have the judgement set aside and the defence heard, but due to deceitful actions by Evans in sending papers to an address he knew we would not receive them created such a delay that we missed all reasonable time restrictions and failed to get the facts heard in context.  

My complaint details breach after breach of your practise, it outlines a clear breach of the unfair terms act.

You have ignored the full complaint and protect your member, regardless of his actions.

According to your marketing I can expect the following:

I expect a full and fair hearing leading to a ‘a resolution of unresolved disputes in full and final settlement ‘

I expect each part of the complaint to be addressed and dealt with,

I expect a fair and independent hearing from you.

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