OMBUDSMAN
Think carefully before allowing a buyer access to a property before completion; they might move in!”
It appears that it is not uncommon for
a buyer to request access to a property after contracts have exchanged but prior to completion, to either store belongings or because they want to carry out some work at the property. If the agent’s opinion is sought, the
seller should be advised to think very carefully before agreeing to allow access in these circumstances; there can be considerable difficulty should the buyer break the terms of any undertaking and carry out acts that were not envisaged. However if the seller is minded to agree,
a key undertaking can be signed. The key undertaking should be agreed between the respective parties’ solicitors and I do not expect an agent to be involved in the drafting of the agreement; indeed, I would advise that if so requested, the agent should decline to act but recommend that the matter should be referred to the solicitor. The undertaking should clearly set out
the reason that the buyer is allowed the keys, what he is permitted to do at the property and any time restraints.
WHEN A BUYER MOVES TOO FAST In one case, the seller allowed the buyer to obtain the keys from the agent to access the Property to store belongings prior to completion. The buyer exceeded this authority, as the seller returned from holiday and found that the buyer had moved in and was living at the property. The seller had given the agent very specific instructions that they were to release the keys to allow the buyer to leave some belongings but that they were to ensure that the keys were returned at the end of the day. The agent had not checked whether the keys were returned and did not seem to have noticed that the buyer still had the keys. Indeed, at the complaint stage the agent merely advised that they had not foreseen a problem as they knew that the sale should complete imminently. I upheld the complaint and made an
award of £250 to compensate the Complainant for the aggravation, distress and inconvenience caused to her by the agent’s shortcomings. The agent was not responsible for the actions of the buyer but
had failed to act in accordance with their seller client’s instructions. I would have expected the agent to have monitored the buyer’s keeping of the keys, taken reasonable steps to have ensured the safe return of the keys and, if they were not promptly returned as stipulated by the undertaking, have notified the seller of this. Agents will be aware that the TPO
Code of Practice for Residential Estate Agents (paragraph 5e October 2006 version / paragraph 6e August 2011 version) requires them to ensure that their records accurately detail the whereabouts of the keys in order that they can satisfy both their client, and, if a complaint is made, my Office, that they took all reasonable care to ensure that the keys are kept secure at all times and only released in accordance with specific instructions from their seller client, including those instructions detailed in any key undertaking that the seller and buyer agree to sign. Furthermore, whilst an agent is not a
party to the key undertaking, if an agent has any concerns about the terms of the key undertaking I would advise them to clarify this with their client or his solicitor at the earliest opportunity.
Do you have any views to share?
www.propertydrum.com/articles/ombudsman1011
PROPERTYdrum OCTOBER 2011 33
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