The Provincial Court of Cádiz has set a precedent for Spanish judges by backing a property buyer who bought a property directly from the seller without paying commission to the real estate agency advertising it.
The buyer in question looked at a flat in the southwestern province in 2020, signing the hoja de visitas (property viewing sheet) provided by the agency to prove that the property had been shown to the interested party.
But the buyer proceeded to purchase the property directly from the seller and did not pay the 3 percent operational fee (€3,630) that the estate agency charged him for the processes they had carried out.
As a result, the agency took the matter to Cádiz’s court of first instance, with the judge initially siding with the claimant.
Nonetheless, the case took a U-turn when the matter of the visit sheet was brought up for discussion.
The agency argued that the property viewing sheet states that, in the event that the operation ends in a sale, the buyer agrees to pay 3 percent of the agreed price, without a minimum fee of €3,000.
The judge found that the buyer was not informed about the fee, nor did he agree to it, and that the clause was therefore “excessive” and not sufficiently transparent.
In the ruling, which can be accessed here, the court stated that the clause “imposes a generic obligation to pay a price and be linked to a contract that is not agreed at that time”.
The magistrate concluded that signing a visit sheet does not constitute signing an agreement which the potential buyer has to pay a fee for.
“We must avoid confusion between the nota de encargo (listing contract) and the hoja de control de visitas (property viewing control sheet),” Madrid’s College of Estate Agents has said in response to the ruling.
“The latter does not mean the buyer has to pay fees or affect fees, since the relationship is with the seller”.
A listing contract is a contract between a real estate agency and an owner of a property which grants the broker the authority to act as the owner’s agent during the sale of the property.
Real estate agency fees vary across Spain but are usually between 3 and 7 percent of the sale price. In most cases, it’s the seller who pays them.