1 Sole Agency
You are instructing us to act as your sole agent. All references to “we” or “us” mean Southey & Co Limited.
By appointing us you are entering a legally binding contract giving us the right to act as your only estate agent while the instruction is in force. You will be liable to pay us the commission fee and any other agreed costs or charges if an unconditional contract is exchanged at any time for the sale of the property (or for the sale of the Shares) with a purchaser introduced:
(i) by us during the period of our sole agency or with whom we had negotiations about the property during that period; or
(ii) by any other agent during that period.
A purchaser may be introduced directly or indirectly as a result of our activities. “Shares” means shares in the company which owns the property.
2 Joint Agency
2.1 Where you agree to instruct us as sole agent or joint agent jointly with another sole agent (‘the joint agent’), we and the joint agent will be the only agents for the sale of the property.
2.2 You will be liable to pay the commission fee to us, in the proportion specified, in addition to any other costs or charges agreed, in each of the following circumstances:
(a) if unconditional contracts for the sale of the property are exchanged in the period during which we have sole or joint agency, even if the purchaser was not found by us or the joint agent but by another agent or by any other person, including yourself; or
(b) if unconditional contracts for the sale of the property are exchanged after expiry of the period during which we have joint agency but to a purchaser who was introduced to you by us or the joint agent during that period or with whom we or the joint agent had negotiations about the property during that period.
2.3 However, you will not be liable to pay the commission fee if unconditional contracts for the sale of the property are exchanged to a purchaser introduced by us or with whom we had negotiations, in circumstances where you have appointed another agent and more than 6 months has elapsed between expiry of our agency and that agent issuing the memorandum of sale. If no other agent is involved, you will not be liable to pay a commission fee in any circumstances if more than 24 months has elapsed between expiry of our agency and exchange of unconditional contracts for the sale of the property.
3 Multiple Agency
3.1 Where you agree to instruct us as multiple agent, you will be liable to pay the commission fee to us, in addition to any other costs or charges agreed, if at any exchanged with a purchaser introduced by us or with whom we have had negotiations about the property at any time during the period of our agency (including any period where we were acting either as sole agent or joint agent).
3.2 However, you will not be liable to pay the commission fee if unconditional contracts for the sale of the property are exchanged to a purchaser introduced by us or with whom we had negotiations, in circumstances where you have appointed another agent and more than 6 months has elapsed between expiry of our agency and that agent issuing the memorandum of sale. If no other agent is involved, you will not be liable to pay a commission fee in any circumstances if more than 24 months has elapsed between expiry of our agency and exchange of unconditional contracts for the sale of the property.
4 Transfer of a Controlling Interest
If the property is owned directly or indirectly by a company or other legal entity and a transfer of a controlling interest in that company or other legal entity takes place to a purchaser and, had the purchaser instead exchanged unconditional contracts for the sale of the property, you would under the terms of this agreement have been liable to pay a commission fee, you will be liable to pay such fee to us as if a sale of the property had taken place. The timing of payment will be as set out in clause 7 below, as if the reference in that clause to the contractual completion date was a reference instead to the conclusion of a contract for the sale of the relevant controlling interest. The commission fee will usually be calculated on the total consideration payable by the purchaser. However, if we reasonably consider that the nature of the transaction does not accurately reflect the value of the property, we reserve the right to calculate the commission fee by reference to the market value of the property.
5 Identity of buyers
5.1 When we have received confirmed instructions to sell the property, you must notify us of any private approach or offer to you so that we may negotiate, unless we agreed with you a special arrangement in writing at the time of the instructions.
5.2 Additionally, prior to exchanging contracts, you must inform us of any change in identity of any buyer without delay.
6 Sub agents
Unless you instruct us to the contrary, we reserve the right to instruct a limited number of sub-agents on a commission sharing basis.
7 Commission fee
Our fee for a sole agency is as set out in the letter accompanying these terms. Our fees (together with any unpaid expenses which have been invoiced) become due and payable to us on exchange of contracts. A conditional contract will be treated as unconditional on satisfaction of any conditions or on completion whichever is sooner.
8 Payment of account
8.1 You agree to instruct your solicitors to provide an undertaking to pay our fees out of the net proceeds of sale on completion if not paid before. Such undertaking must be provided once sale terms have been agreed and prior to the issue of the memorandum of sale. Provided that we receive such undertaking, we shall allow the fees to be paid on completion by your solicitors. If at any stage of our instruction you become aware that there may be insufficient funds available to pay our fees from the net proceeds of sale, you must notify us immediately.
8.2 If any invoice remains unpaid after the date on which it is due to be paid, we reserve the right to charge interest, calculated daily, from the date when payment was due until payment is made at 4% above the then prevailing bank base rate of National Westminster Bank PLC or (if higher) at the rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998 and its regulations (if applicable). If we should find it necessary to use legal representatives or collection agents to recover monies due, you will be required to pay all costs and disbursements so incurred.
8.3 If the sale of the property proceeds by way of sale of Shares you shall be obliged to pay us the fee set out in clauses 1 and 7 above in recognition of the professional advice and services provided by Southey & Co Limited to you in relation to the property.
8.4 Southey & Co Limited is not authorised to and will not advise you in relation to any sale of the Shares but solely in relation to the property related aspects of the disposal.
9 Marketing expenses
Unless otherwise agreed in writing with you, marketing expenses are absorbed within our fee.
You must also pay value added tax (VAT) at the prevailing rate on all our invoices wherever you live.
11 Other service
If requested by you to provide other services to you relating to the property (e.g. cleaning, maintenance, repairs, administration, insurance etc,) we will agree the terms upon which those services (“the Services”) will be provided in writing before commencing work.
12 Offer of other services to purchasers
We may offer the following services to prospective purchasers, and similarly the services may be offered to them by another organisation in circumstances where we may benefit financially: financial services including mortgages insurance and pensions; property letting and management services; building construction; refurbishment and maintenance services and the sale of the prospective purchaser’s property.
13 Accuracy of statements
In marketing the property, we are legally obliged to ensure that all information provided is accurate, not misleading and does not omit material information. We will ask you to verify any aspect of the property about which we cannot be certain. You must tell us if you are aware of any matter which may be material to a buyer. You must also tell us if you become aware of any inaccuracy in our sales particulars, advertising copy, press releases or any other information we produce about the property.
14 Planning enquiries
Unless specifically requested by the client, we will not undertake specific planning enquiries relating to the development potential for the property and therefore this is not taken into account in any marketing advice or recommended sales price. Southey & Co Limited work with trusted specialists in this area to whom we can refer you if requested
15 Energy Performance of Buildings Regulations
It is your obligation to commission an Energy Performance Certificate (EPC) before marketing can commence. The Regulations require that all ‘reasonable efforts’ are made to obtain an EPC within seven days of the start of marketing, and with an absolute duty to provide them within 21 days thereafter, so that they may be provided to purchasers at the earliest opportunity. The Energy Performance Indicator (the Rating) must form part of both written and electronic particulars. Where you do not commission an EPC you authorise us to obtain one for you, should we consider this to be appropriate, to enable us to issue particulars. In that event the cost of the EPC will be payable by you in addition to our fee and any other marketing expenses. An estimate of this cost will be made to you as soon as practicable. We can provide you with any advice or support in obtaining Energy Performance Certificates on request.
16 Complaints procedure
A copy of our complaints procedure is available on request. This includes details of the Redress Schemes which are the PRS (Consumer Redress Scheme) and RICS Dispute Resolution Service (Business Redress Scheme).
17 Termination and withdrawal
17.1 Our instructions to act may be terminated in the following ways:
(a) by either party by giving 14 days’ notice in writing; or
(b) by us giving you notice in accordance with clause 22.2 below.
17.2 If either (a) or (b) above happens you must immediately pay all previously agreed costs that we have incurred on your behalf. This will include any costs which we would otherwise have carried until a sale took place.
You will remain liable for any fees due to us under clauses 1, 2, 3, 7 and 7. Clauses 18, 24, 25, 26 and 27 remain fully in force even though the agreement has been terminated.
17.3 If we introduce a purchaser to you and agree sales terms in accordance with your instructions, we reserve the right to charge you for any exceptional marketing expenses incurred by us if you withdraw from the sale of the property.
17.4 If you instruct another agent during or after the period of our sole agency, you may be liable to pay our fee as well as theirs.
We are instructed to sell your property, but if we introduce a possible buyer who rents the property from you (rather than purchasing it) you will be obliged to pay us on commencement of the letting a fee calculated at 11% of:- (a) the annual rent payable; or (b) for a letting which last for less than 1 year the total rent payable for the period of the letting. Provided that if that same party then buys the property our sales fee will be payable in full less the amount of the letting fee paid by you to us.
19.1 As far as the law allows, our total liability to you for any direct loss or damage caused by our negligence or breach of contract is limited to the higher of £50,000 or ten times Southey & Co Limited’s commission fee under this agreement. We do not accept liability for any indirect or consequential loss (or for loss of profits). These limitations do not apply to our liability for death, personal injury caused by negligence or to our liability for fraud.
19.2 As far as the law allows, our total liability to you for any direct loss or damage caused by our negligence or breach of contract in relation to the provision of the Services is limited to a sum equal to the fees rendered by Southey & Co for the provision of the Services in the twelve month period prior to the date of any claim made by you in relation to the provision of those Services. We do not accept liability for any indirect or consequential loss (or for loss of profits). These limitations do not apply to our liability for death, personal injury caused by negligence or to our liability for fraud.
19.3 You agree not to bring any claim arising out of or in connection with this agreement against any member, director employee or consultant of Southey & Co Limited (each called a “Southey & Co Person”). These individuals do not have a personal duty of care to you. Any such claim for losses must be brought against Southey & Co Limited. Any Southey & Co Person may enforce this clause under the Contracts (Rights of Third Parties) Act 1999, but these terms may be varied at any time without the need for any Southey & Co Person to consent.
20 Unoccupied Property
We are not responsible for securing, maintaining or repairing the property, except where we negligently fail to secure the property after an accompanied viewing.
21 Information about Southey & Co Limited; meaning of “partner”
Southey & Co Limited is a limited company registered in England and Wales with registered number 144448947 Our registered office is Town Wall House, Balkerne Hill, Colchester, Essex CO3 3AD
Our Value Added Tax registration number is 432992672. We are regulated by the Royal Institution of Chartered Surveyors in the UK. The details of our professional indemnity insurance specified in the Provision of Services Regulations 2009 will be provided to you on request by Natalie Jordan, Partner Secretariat & Pensions.
22 Financial Crime
22.1 We are obliged by law to accept and conduct instructions in accordance with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and Proceeds of Crime Act 2002. These require us, in certain circumstances, to establish the identity and address of our clients and, if different, vendors and potential purchasers of property, and the source of any funds received, and to renew this due diligence on a regular basis. You agree to provide to us any information or documentation which we reasonably request in this regard and to assist us in the collection of any information we request from transactional counterparties (including potential buyers) in this regard. For the avoidance of doubt, searches may also be conducted on directors and “beneficial owners” as is required by the legislation. Where required, we will be unable to continue to act for unless we have completed the necessary due diligence on our clients and transactional counterparties. In the event that any key information that would alter our records changes during the course of this instruction, such as a change in any beneficial owners or a change in the identity of a transactional counterparty, you must inform us without delay. This information will not be disclosed to any other person, except for those authorised to regulate or conduct enquiries under the Money Laundering Regulations 2007 or where otherwise required by applicable law or regulation.
22.2 If we are unable to complete the required due diligence for any reason, we reserve the right to terminate our contractual relationship with you immediately on written notice to you.
22.3 We shall have and shall maintain in place such policies and procedures as are reasonable to prevent the facilitation of tax evasion by another person and as such shall not knowingly engage in any activity, practice or conduct which would constitute either (i) a UK tax evasion facilitation offence under section 45(1) of the Criminal Finances Act 2017; or (ii) a foreign tax evasion facilitation offence under section 46(1) of the Criminal Finances Act 2017.
23 Anti-bribery, Corruption & Modern Slavery
23.1 We agree that throughout the term of our appointment we shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, (the “Relevant Requirements”);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) maintain anti-bribery and anti-corruption policies to comply with the Relevant Requirements and any best practice relating thereto; and
(d) promptly report to you any request or demand for any undue financial or other advantage of any kind in connection with the performance of our services to you.
23.2 We take all reasonable steps to ensure that we conduct our business in a manner that is consistent with our Anti-slavery Policy and comply with applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including the Modem Slavery Act 2015.
24 Data Protection
24.1 For the purposes of this clause “Data Protection Legislation” means: (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom and (ii) the Data Protection Act 2018 (the “DPA”), including any regulations and secondary legislation relevant thereto, and then (iii) any successor legislation to the GDPR or the DPA.
24.2 You and we shall comply with applicable requirements of the Data Protection Legislation.
24.3 We will only request your personal data if there is a lawful basis for processing as per our Group Privacy Statement that can be found at www.southeyandco.co.uk By transferring any personal data to us you warrant and represent that you have the necessary authority to share it with us and that the relevant data subjects have been given the necessary information regarding its sharing and use.
24.4 We may transfer personal data you share with us to other associated Southey & Co Limited entities and/or group undertakings. Some of these recipients may be located outside of the United Kingdom. We will only transfer such personal data where we have a lawful basis for doing so and have complied with the specific requirements of the Data Protection Legislation.
24.5 Full details of how we use Personal Data can be found in our Group Privacy Statement at www.southeyandco.co.uk.
Certain documents may legally belong to you, but it is necessary for us to destroy correspondence and other papers after six years except for documents that we consider to be of continuing significance. If you want us to keep particular documents, you must instruct us accordingly.
26 Rights of third parties
Except as set out in clause 15, none of the terms of this agreement are enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
You agree that we may at any time, including after this agreement ends, publish promotional material (including photographs) about the sale of the property and send out any unwanted brochures by way of publicity for Southey & Co Limited. We will not disclose confidential information.
28.1 These terms are subject to the laws of England and Wales and any dispute that arises in any way out of this agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.
28.2 If a court rules that any provision of these terms is invalid or unenforceable, this will not affect the rest of the terms, which will remain fully in force.
29 Force majeure
Neither party shall be liable under or in connection with these terms to the extent that such liability arises as a consequence of any event or circumstance or cause beyond the reasonable control of that party.
30 Notice of the Right to Cancel
If you are a private individual dealing wholly or mainly outside your business your attention is drawn to the notice of your right to cancel this contract which is in the Schedule to these terms. If you instruct us to commence marketing the property immediately and you subsequently cancel our instructions within the cancellation period you must pay us an amount which is in proportion to what has been performed until you have communicated to us your cancellation of this contract, in comparison with the full coverage of the contract including any commission fee due.
31 Royal Institution of Chartered Surveyors
Southey & Co Limited is regulated by RICS for the provision of surveying services. This means we agree to uphold the RICS Rules of Conduct for Firms and all other applicable mandatory professional practice requirements of RICS, which can be found at www.rics.org. As an RICS regulated firm we have committed to cooperating with RICS in ensuring compliance with its standards. The firm’s nominated RICS Responsible Principal is Nick Green.