Estate agent gazumped buyer

LIKE any couple who think they have found their dream home, Phil and Wendy Butcher were crestfallen to discover that a rival bidder had entered the race.

But their dismay turned to anger when they learned it was their estate agent who fancied the historic former vicarage for himself.

The Butchers' £395,000 offer for the White Lodge in Westleigh, North Devon, had already been accepted when, unknown to them, Roger Berry and his wife Sarah put in a rival bid of £400,000.

Then, when the owner decided the matter would have to be settled by sealed bids, Mr Berry raised his offer to £450,100, while his clients were also forced to raise their bid.

He came unstuck, however, when owner Richard Ker pulled out of the deal on moral grounds and agreed to sell to the Butchers for £435,500.

The agency, Phillips, Smith and Dunn, has been ordered to pay the Butchers £45,000 plus costs by a High Court Judge in Bristol to compensate them for the extra money they had to offer plus additional stamp duty.

Judge John Weeks QC said it was the sort of case 'that gives estate agents a bad name' and that the firm had 'breached their duty of loyalty and good faith to the Butchers'.

He added that estate agents were not allowed to bid for property their clients were trying to buy because it breached the 'fiduciary duty' that had been introduced 'to impose some sort of moral restriction on agents'.

Mr Butcher, a 62-year-old retired aeronautical engineer, said he and his wife, also 62, were 'appalled' at Berry's behaviour.

'We have had two years of trying to bring this around,' he said. 'It has just been a shadow hanging over us.' Mrs Butcher has lost a stone in weight through stress.

The couple have lived in Devon for eight years since moving from Bedfordshire.

They met Berry when he was called in to help sell their £495,000 house in Buckleigh, which had been on the market with another agent for a year, so that they could move across the Torridge Estuary to the seven-bedroom vicarage. 'It was just its position and its location which we loved,' said Mr Butcher.

Berry found a buyer for the Buckleigh property and, after Mr Ker accepted their offer, the Butchers thought the sale was about to proceed.

Their solicitor Bill Pope said: 'On Sunday 26 May 2002 Berry and his wife visited the White Lodge and proposed a new higher price to Mr Ker of £400,000 without telling the Butchers.'

The situation was further complicated when a third bidder emerged. Mr Ker, 52, then said it should be settled by sealed bids.

Berry offered £450,100, the Butchers £435,500 and the third bidder £425,000.

Although Mr Ker, who had lived at The White Lodge for almost 50 years, initially accepted Berry's offer, he had a change of heart.

'He wrote to his estate agent to say he could not in conscience proceed with that sale, but would accept the Butchers' offer at almost £15,000 less,' said Mr Pope.

Mr Butcher added: 'It's rare that you meet such a fair-minded person. It's good to see that there are still people around like that.'

The case went to court after the Butchers refused to pay Berry's firm its commission until a complaint to the Estate Agent Ombudsman had been heard.

The firm sued to recover its commission and the Butchers counterclaimed for the extra money they had been forced to bid.

Yesterday, Berry was not taking calls but fellow partner Richard Smith said the company had been advised to appeal.

'What Roger Berry did was rash and ill-advised. But it wasn't dishonest and it wasn't clandestine.

'I suppose you can say that the fine the firm is going to have to pay reflects the judge's opinion, which is not one we share.'

Mr Smith said it was 'a worrying case' for estate agents because the judge had extended the principle of the duty of care 'far beyond the boundaries as we have understood them so far'.

Create a FREE account to continue reading

eros

Registration is a free and easy way to support our journalism.

Join our community where you can: comment on stories; sign up to newsletters; enter competitions and access content on our app.

Your email address

Must be at least 6 characters, include an upper and lower case character and a number

You must be at least 18 years old to create an account

* Required fields

Already have an account? SIGN IN

By clicking Create Account you confirm that your data has been entered correctly and you have read and agree to our Terms of use , Cookie policy and Privacy policy .

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged in