The advent of Agents Mutual and their “OnTheMarket” portal is set to shake up the property world. The contractual requirement for Estate Agents utilising “OnTheMarket” to market properties online via only one other portal is controversial and a source of huge debate across the property community.
In reality, the end client will decide how the online market develops and which portals will succeed. However, one angle which many agents may overlook is the Insurance perspective; it is important to understand how an Agents actions could impact their susceptibility to Professional Indemnity Insurance claims.
Property Experts Owe A Duty Of Care
As a trained property expert, an Estate Agent owes a heightened duty of care to their client for the advice and expertise provided. The onus is, therefore, on the Agent to act professionally and transparently in the services they provide.
Should a client feel that the services or advice provided may have breached that duty of care, and in turn, they have suffered a financial loss, they are likely to pursue a Professional Liability claim against the Agent.
How Can Portal Changes Breach Duty Of Care?
In simple terms, a client will engage an Estate Agent to sell or let their property. In exchange for a pre-defined fee, the Agent will market the property and manage the sales process – alongside other agreed activities.
In itself, the marketing restriction to two portals, and by definition, not marketing via one of the two current market leaders, is not likely to be perceived as a breach of professional duty.
This is on the assumption that the marketing process has been fully explained to the client and communicated in the Terms of Business and the contract between the Agent and the client. If this doesn’t happen, the client could argue that restricted marketing has, in turn, restricted their ability to sell or let their property.
What Types of Losses Could Be Challenged?
While no precedent currently exists, should a property remain unsold and, for example, the seller loses fees on another purchase which falls through, they could sight the lack of information around restricted marketing as a probable cause and look to the Estate Agent for financial compensation.
Transparency Is Key
As long as the marketing process is fully explained clearly and transparently, the contractual terms of acceptance will be much clearer. Staff should be armed with answers to questions relating to the background and reasoning so that the client can make an informed decision about their choice of Agent prior to instruction.
Other Areas of Consideration…
On and offline documentation should be reviewed to ensure terms and conditions have been updated.
If the Agent is no longer dealing with a specific portal, they could find themselves in breach of copyright if the portal’s logo is still shown online or via any marketing material.
#3 Existing Instructions
For properties which are currently being marketed and may be removed from a portal, it would be best practice to re-engage with the client to explain any potential changes and gain their acceptance.