In today’s article we are going to talk about real estate agency fees. And more specifically, about the contracts between agencies and clients, when the right of the agent to get paid arises, etc. Our law firm has had the opportunity to advise clients and agencies in these type of matters. In relation to the drafting of the contract, but also in relation to their defence in court.
The agent’s right to get paid their fees
As we have pointed out in other articles, the contract that is usually signed between clients and agents is what is called in Spain a brokerage contract, or real estate mediation.
According to this contract, the real estate agency is not responsible for the success of the sale.
Consequently, it may be entitled to its fees in full, even if the sale is not completed. That is to say, even if the sale deed is not signed before a notary, or the price is not paid in full.
Real estate agency fees in cases of direct contact between clients
It sometimes happens that buyer and vendor, after the initial contact made by the agent, contact each other directly. In some cases, to try to avoid paying the agent fees.
It also happens that many agency contracts and visit sheets foresee this possibility. And so, in some cases, it is stated that if the buyer buys directly from the seller, without the intermediation of the agent, he will have to pay a certain fee.
Of the possible lack of transparency of these type of clauses and contracts
Although it will depend on each case, we understand from our experience, that in many occasions, these clauses might not be transparent.
We cannot forget that real estate clients, in most cases, are consumers. Therefore, they are protected by consumer and user regulations.
The regulations require that in contracts concluded with consumers that use non-individually negotiated clauses, these clauses must be clear and simple.
Furthermore, they must be transparent, ie the customer must receive sufficient information about the clauses, their possible legal and economic implications, etc.
Court precedents
We would like to highlight the court decision 52/2021 of the Provincial Court of Cadiz.
In a case similar to the one described above, although a clause was signed by which the visitor was obliged to pay the agent fees if he bought the property without the agent. There was NO evidence that this clause and its consequences had been previously informed to the client, the consumer.
Thus, the court considered that the clause was not transparent, as the real estate agency did not adequately inform the client, and it could also be abusive, as there was no obligation on the part of the agent.
Conclusion
If you are a real estate agency or a buyer or seller. And you need the advice of an expert lawyer, in relation to the claim for real estate agency fees. To determine whether or not it should be paid, or whether the agreement is abusive or transparent. Contact us
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
White & Baos 2021 – All Rights Reserved.
Other articles that could be of interest:
Prepare the sale of a Spanish Property, save time, avoid problems with our PreSale Service
Could the real estate charge their commission, if you decide not so sell?
