Problem
Our client had signed a brokerage agreement that let the broker keep the deposit paid, as a contractual penalty, if the client did not in the end sign a final sale and purchase contract for the chosen property. When we reviewed the agreement, we found the clause unfair within the meaning of the Consumer Protection Act. It set a disproportionate sanction on the consumer alone, with no matching obligation on the broker if the broker failed to perform.
What we did
We wrote to the broker that the clause breached the Consumer Protection Act and was therefore void, so nothing justified keeping the deposit. We added that if the broker would not return the money we would have to sue, which would cost the broker additional court costs. To back the client's position we cited court practice from materially identical cases between consumers and property brokers.
Outcome
- The client and the broker reached a settlement out of court
- The deposit paid was returned in full
- Court proceedings were avoided, along with their costs and delays