According to the Supreme Court, quite a few practices in the real estate agents’ contracts fail to satisfy the general principle of good faith and fair dealing.
The Supreme Court had made the decision final according to which it is against good faith and fair dealing to stipulate in a real estate agent contract that in the case of exclusivity, the owner is prohibited to try and sell their property on their own or to conduct negotiations within their own discretion with a potential buyer without the agent being present. Such stipulations restrict the consumer in practising their right to property as a property owner.
A real estate agent’s contract lays down an obligation to produce a specific result and thus the agent may claim their service fees only if as a result of their dealings, a sale and purchase contract is concluded by the parties. Thus, it is against fair dealing if the services fees are to be paid also in that case that an actual contract has not been concluded between the seller and the person brought by the agent.
In accordance with the judicial practice though, the real estate agent may claim service fees even in case the buyer was brought up by the agent, but the contract in the end is not concluded – only to a reason attributable to the seller. It is though unfair to claim services fees from the seller for each case regardless of the fact on which the consumer refused to conclude the sale and purchase contract.
It is further unfair to claim service fees if the seller concludes with the buyer brought up by the agent, yet the subject of the contract is a differing real estate than that being subject of the real estate agent contract. Unfairness is in these cases based on the missing link between the dealings of the agent and the outcome of the case.
The Supreme Court has further established that – except for continuing agent contract – a right to notice shall be granted to any seller regardless of the fact whether they are consumers or companies. Restricting the right to notice is unlawful and is thus null and void if it was stipulated.