Estate agents have long made excessive profits from people buying and selling houses in Spain, but now things can change...You can do the agent's job of selling or finding a home in Spain yourself, making huge savings in the process.

Can I sell privately as well as through an estate agent?

Absolutely yes! But it is vital you understand the type of contract you have as this dictates the basis on when commission becomes payable.

Most people sign a 'Sole Agency' or 'Multiple Agency' agreement - check
your documents. These both permit you to sell privately - and if you do sell privately then you do not have to pay commission.

However in the unlikely event you have signed a 'Sole Selling' agreement (don't confuse this with ‘Sole Agency’) then you will owe commissions. Check the agreement.


The Legal Terms


The terms, "sole agency" and "sole selling rights" can be described as follows: -

Commission is payable in these situations.....

“Sole Agency"...if contracts are exchanged with a purchaser introduced by your estate agent during the period of sole agency or with whom your agent had negotiations about the property during that period or with a purchaser introduced by another agent during that period.

“Sole Selling Rights"...if contracts are exchanged in the period during which your agent have sole selling rights even if the purchaser was not found by your agent, but by another agent or by any person including the seller...."


What do these terms mean?


These terms, if used by an agent in a contract, must follow the exact wording of the definition. As you can see, "Sole Selling Rights" is quite specific - check your contract carefully and ensure that your agreement does NOT use these words.


The essential difference between the two types of contract is obvious - under ‘SOLE SELLING RIGHTS’, the agent can charge commission whoever the property is sold to, even if they do nothing to bring about the sale! But under ‘SOLE AGENCY’ they can only charge commission if they (your agent) sell the property - the agent cannot claim commission if the sale goes to a private buyer that they did not introduce.

Some estate agents may attempt to say that successful private sale websites such as www.spanishsalesdirect.com are also 'agents', to try and bring such websites within the scope of their sole agency terms, but this is legally NOT the case. Legal guidelines issued in December 2005 state that in order to be an ‘agent’, you must be ‘APPOINTED to REPRESENT’ the interests of one party (you the seller) against the interests of the other (the buyer) and NEGOTIATE the sale on behalf of one party.

Obviously, websites such as SSD are not 'appointed', nor do they participate in ‘negotiations’, nor do they ‘represent’ or act on your behalf in any way. They simply arrange your advertising and marketing within a fixed package service, and provide publishing in the same way as a local newspaper advert would - they are not your 'agent' either!

You as a private seller, deal with buyers direct and arrange your own viewings and discuss terms of sale. Websites you advertise with merely provide buyers with the means to contact you.

Other Clauses


Exclusion of private internet advertising:

Some Rogue agents are entering unfair & illegal restrictions into their contracts to try and exclude internet advertising by the vendor in order to protect their commission.

Note: If your agent has a phrase such as 'if you sell your property yourself via an internet advert the agents commission will still be payable'. This will effectively convert the contract to a form of "Sole Selling Rights" (see above) and the agent will be in breach of the law if they continue to refer to such an agreement as "Sole Agency". The 'Unfair Terms in Consumer Contracts Regulations 1999' enforces this, and is applicable across the EU.

"Ready, willing and able to buy...."

Be wary of any clause in an agent agreement that allows them to charge commission in the event that they introduce someone ‘ready, willing and able’ to buy the property. This does not even mean that the buyer has to complete the sale! But it does entitle the agent to their commission even if the property is not sold or if you sell to someone else!

This wording can be found in ANY form of agents agreement (not just sole agency), normally in a separate 'when our commission becomes payable' type paragraph. If you find this wording in your agreement, refer back to your agent and ask them to strike out the clause! The Spanish Consumers Association recommend that you do not sign contracts with this wording!

Legal responsibilities of private sales websites:


Online publishers are very conscious of all of the legal requirements for providing a property advertising service only. And not acting as an estate agent. They therefore fully comply with all necessary EU member legal requirements.
The Office of Fair Trading is also very clear on the types of service that can be deemed as estate agency. And they offer no such types of service. In fact, as recently as December 2006, because of the surge of FSBO (for sale by owner) activity in the real estate market across Europe, The Office of Fair Trading in conjunction with the EU and the Spanish National Consumers Institute, issued new guidance on how to determine whether a property internet site was in fact an Estate Agent or not. Suffice to say they all now comply 100% with the very latest guidance for both your and our protection.


So do not let existing agent put you off in a bid to 'save' their commission fees - See privately at a realistic price and join the FSBO (For sale by owner) revolution!