For several years now, there has been an increasing number of queries and claims raised by different professionals in the real estate sector in relation to the non-payment of the agreed commission by clients (whether buyers or sellers).
The casuistry is quite wide, considering the atypical nature of the mediation or brokerage contract, since it applies the freedom of contracting authorized by articles 1.091 and 1.255 of the Civil Code.
We can relate several cases (some of them already resolved before the courts):
- Franchisee of a real estate company with a large national presence that agrees with the seller the exclusive transfer of a property at a determined price for a period of six months. The franchisee finds a buyer who agrees to pay the price of the property, giving an amount as a deposit. The seller refuses to execute the deed alleging that it had verbally terminated the mediation contract with the real estate company (when the reality is that it wanted to obtain a higher price for the property). In this case, the contract with the seller also included her obligation to pay the franchisee all the expenses incurred (taking into account the time elapsed and the steps taken) in the event that the client revoked the contract before its expiration.
- A real estate agency is approached by a buyer interested in a very specific product: a centrally located penthouse. After several unsuccessful negotiations with some properties that the real estate agency had exclusive rights to, the buyer went with the agency to visit a property on which the agency did not have exclusive rights of sale and would not charge fees to the seller. The buyer previously signed the real estate mediation contract as well as the corresponding visit sheet. After these negotiations, the buyer found out the seller’s telephone number and “bypassed” the real estate agency, signing a penitential deposit with the seller, alleging that the real estate agency did not have exclusive rights of sale and that the telephone number had been obtained by lawful means.
- A real estate agent to whom a seller assigns exclusively the sale of a downtown building of tourist apartments, agreeing on the corresponding commission. As a result of the custom in the sector, a real estate agent collaborating with the agent who received the assignment located a potential buyer who, making various excuses, refused to sign the mediation contract as well as the visit sheet. Taking advantage of the fact that the visit to the building was attended by the person who at that time was assigned to the management of the tourist apartments (without dependence or relationship with the seller), the buyer requested the owner’s data with the purpose of “bypassing” the real estate agencies. With his premeditated attitude (not signing the contract or visit sheet) he intended to avoid that there was no record of his visit to the property and to contact the seller, alerting him of the situation and avoiding that the latter also did not bear the agreed commission (based on the impossibility of accrediting the reality of an effective mediation action) obtaining a reduction in the price.
Without going into detail in each of these cases, case law has been establishing several patterns in its rulings that can be summarized as follows:
a. The price is satisfied or must be satisfied when the result sought is produced, or if it is not produced for reasons beyond the agent’s control, after the offer and its acceptance through his efforts (STS June 27, 2005).
b. The mediation or brokerage contract is a contract of result and will only give right to the commission if thanks to the mediator’s work the sale contract is perfected (STS October 21, 2000).
c. Although the mediator is not normally empowered to conclude the sale and purchase contract, it is unavoidable that this is concluded as a result of his mediating efforts if, after the mediating efforts have been made, it turns out that the seller and buyer conclude the sale and purchase contract (SAP Málaga June 30, 2015).
d. It is admitted that in an intermediation operation the mediator charges commission to the two parties that conclude the contract, as long as there is a joint commission or individual commissions for the sale and purchase (SAP Las Palmas of June 30, 2017).
e. If the visit by the buyer to the property takes place within the temporary period of validity of the assignment made by the seller, and the sale and purchase takes place after that date, it can be understood that the sale and purchase was perfected as a result of the efforts made by the real estate agency (SAP Las Palmas of June 30, 2017).
Based on the above we can conclude that, if a client (buyer or seller) decides to go to a real estate agency with the purpose of benefiting from its services and these are effectively provided, unless it is impossible to prove, he/she must bear the agreed commission.
At Portillo Estudio Legal we will advise you in case you find yourself in any situation similar to the ones described above.