But, a recent case shows that this does not apply in the case of sole selling rights. The Estate Agents (Provision of Information) Regs 1991 require agents to provide specific information to their clients; that information includes an explanation of terms, and the Regs give a definition of ‘sole selling rights’ that entitles the agent to charge commission even if a sale concludes after the exclusive period of the sole selling agency, provided the agent ‘introduced’ the buyer during the exclusive period. On that basis, the agent will be entitled to commission if the agent was responsible for ‘introduction’ of the buyer, but is that subject to the overriding principle that the agent must also have been the ‘effective cause’ of the sale?

This point has not been previously decided, but it has now been held that there is no need for the agent to be the ‘effective cause’ if there is a sole selling agreement. Accordingly, all that is needed is for the agent to have ‘introduced’ the buyer. Thus, in this particular case the agency had sole selling rights for a period running from September to March. In January, they had been contacted by a prospective buyer who did not proceed. New agents were instructed in April and the original buyer revisited the property in July having seen the new agents’ board. It was held that the seller was liable to the original agents (who had a sole selling agency) because they had ‘introduced’ the buyer who, in reality, had remained interested in the property even though there had been a six-month gap before he revisited. On that basis, of course, it was also true that they were the ‘effective cause’ of the sale, but the court made it clear that they would have been entitled to their commission anyway.

One potential danger, of course, is that the seller in such a situation ends up liable to both sets of agents, and so has to pay two lots of commission. Accordingly, if a seller goes off to a second set of agents, it might be worth insisting that the new agents will not be entitled to any commission if a sale is made to someone ‘introduced’ by an earlier sole selling agent. Dashwood v Fleurets [2007] EWHC 1610 (QB). © Practical Lawyer