Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal, Amsterdam, Judgement 200.285.395/01
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 23/11/2021
    • Gerecht: Gerechtshof Amsterdam
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: real estate agent, services, intermediation services, non-performance, unfair commercial practices, damages
  • Richtlijnartikelen
    Unfair Commercial Practices Directive, Chapter 2, Article 5
  • Koptekst

    ECLI:NL:GHAMS:2021:3690

    The mere fact that a real estate agent advises a consumer to make an offer for a house for an amount exceeding the current market value constitutes neither a breach of contract nor an unfair commercial practice on the part of the real estate agent.

  • Feiten

    The consumer had concluded an intermediation contract with a real estate agent, requiring the latter to assist him in the purchase of a house. When the consumer appeared interested in a particular house, the real estate agent indicated that, in his view, the market value of that house was €425,000. However, he advised the consumer to make an offer of € 459,500 without contractual reservations. Upon the advice of the real estate agent, on 26 September 2019, made such an offer, which was accepted orally the next day. On 5 October 2019, the consumer signed and returned the written sales contract. This contract provided that no architectural survey had been agreed upon. The following day, the consumer asked the real estate agent to nevertheless organise an architectural inspection. The agent replied that no such condition had been agreed upon and advised the consumer to either have a structural inspection carried out at a later stage but without contractual consequences, or to terminate the contract on the basis of the statutory right of withdrawal (to be executed within three working days after the signing of the written contract). The consumer terminated the contract on 7 October 201. On 8 October 2019, the consumer sent an email to the real estate agent of the seller stating that he was still interested in the house and that his bid of € 459,500 still stood, but that he would like to have an architectural inspection carried out first. This real estate agent, acting on behalf of the seller, agreed to this. The consumer let him know that he no longer wished to do business with his real estate agent.

    After a positive architectural inspection, the consumer again concluded a sales contract with the seller, signed by him on 21 October 2019 for the same sales price. On 22 October 2019, an appraiser appraised the property at the request of the consumer for the purpose of a mortgage to be obtained by him. In his report dated 28 October 2019, the appraiser stated that the market value of the house was €425,000.

    The real estate agent claimed payment of his commission of 1 % of the sales price; the consumer refused to pay, claiming that the real estate agent had committed a breach of contract or an unfair commercial practice by advising an offer considerably above the market value of the house.


  • Juridische kwestie

    Has the real estate agent breached his contractual obligations or committed an unfair commercial practice against the consumer by advising an offer of € 459,500, which was € 34,500 above the market value of the house?

  • Uitspraak

    The Court of Appeal held that the real estate agent had assumed a market value of the house in September/October 2019 of € 425,000, which is in line with the appraiser’s report. The Court of Appeal found that, given the market conditions at the time, the real estate agent did not breach his contractual obligations nor commit an unfair commercial practice against the consumer by advising an offer considerably higher than what he considered to be the market value at the time. In this respect, the Court of Appeal takes into account that the next highest bid was only € 5,000 lower than their bid of € 459,500 and that the consumer has not refuted that overbidding by him by an amount of € 5,000 was necessary to obtain the house. Moreover, when selling his previous house, a similar situation arose as the buyers of his previous house made an offer exceeding the market value as well. According to the Court of Appeal, whatever may be of the development of the house prices, the increase is the result of a system of supply and demand and not of the unfair commercial practice on the part of the real estate agent.

    URL: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2021:3690

    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of Appeal, in substance, confirms the court of first instance’s judgement and demands the consumer to pay the requested amount to the real estate agent.