Tuesday 06 May 2014
There is frequently confusion over the meaning and legal status of a 'bon de visite', used by estate agents for property visits by buyers.
We receive a regular flow of queries about the bon de visite, with most of you asking whether, on the basis of having signed this form, it commits the buyer to paying the agent's commission.
The short answer to that question is that it does not. The bon de visite is not a form that ascribes liability for the agent’s commission to the buyer.
Neither, incidentally, does it have anything to do with insurance cover whilst visiting the property!
It is merely used by estate agents as confirmation that a prospective buyer has been introduced by them to the property.
Accordingly, if a sale does proceed as a result of this introduction the agent's commission is payable, even if buyer and seller decide subsequently to negotiate directly between themselves.
Even in the absence of a bon de visite, provided an agent can still prove that the buyer was introduced to the property by them, the commission is still payable. Such proof might be provided by witnesses or telephone calls, albeit such forms of proof are weaker than a bon de visite.
Of course, it is quite possible a buyer may (wittingly or unwittingly) be introduced to the same property by more than one agent.
In these circumstances, case law has established that it is the agent who is responsible for concluding the transaction who is then entitled to the commission, provided they had a contract with the seller to market the property for sale.
It is not necessarily the estate agent who first introduced a buyer to the property who gets the commission if it was not they who secured the final agreement of the buyer and seller.
This is a peculiarity of the whole process, and one that does sometimes lead to dispute and litigation, in part due to the possibility of fraudulent collusion between two or more of the parties involved in the transaction. Such a dispute could then potentially hold up the whole purchase process. More often than not the dispute ends with the agents splitting the commission between them.
There is no prescribed form that the bon de visite must take, and it is not actually mentioned in statute law.
So there are various clauses that sometimes creep into these documents that are of dubious legal validity. Thus, a clause which seeks to bind the buyer to exclusively using the services of the agent in connection with the property is one that is unlikely to be accepted by a court of law, although it is desirable to have it deleted before you sign the document.
That said, where the seller has granted exclusivity to an agent to sell the property the commission would always be payable to them however the property was sold, provided it is within the contract period.
Even if you have signed a bon de visite with an agent, then unless they have a contract (mandat) with the seller authorising them to act on their behalf on the sale of the property the bon de visite is not valid.
Only if an agent has a written mandat with the seller, signed prior to them introducing a buyer to the property, can they claim any commission arising from effecting an introduction to the property.
In this sense, the bon de visite merely serves as proof that the agent is carrying out their contractual obligations as set out in the mandat to the seller to find a buyer for the property.
Delivered directly to your inbox every month