A recent Court of Appeal decision on sole agency agreements will come as a blow to estate agents, says Michael Wilkinson
Determining when an estate agent is entitled to commission has long concerned estate agents, their clients, their lawyers and the courts. Before Foxtons v Pelky-Bicknell [2008] EWCA Civ 419, [2008] All ER (D) 328 (Apr), the position appeared to be relatively well settled. For a general agency agreement, ie one which does not contemplate limiting the seller to using only one agent, a term would generally be implied into the contract requiring that the agent “effectively cause” sale: if the agent does not cause sale, they will not be entitled to their commission (see Dashwood v Fleurets Limited [2007] EWHC 1610 (QB), [2007] All ER (D) 67 (Jul)).
For sole agency agreements (SSAs), however, the law did not require the same high degree of causation: commission was payable wherever the agent “introduced” a person who then purchased the property, regardless of how that introduction was made (see Murdoch, the law of Estate Agency, 4th Edition,
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