There is no better source for the creation of an article than life per se, or at least, a lawyer´s daily practice. This week I wanted to talk about a practice within some estate agents that upsets me substantially. I am talking about the charging of the real estate agent´s commission to the buyer.

There is no law that guides us as to who should pay the estate agent´s fees in the sale and purchase of a Spanish property but the clear common practice is that this is paid by the seller. In a way, it is fair. The seller is the one who hires an estate agent to market and sell the property and sets up the sale price. He is also the one entering into a contract with the estate agent with some clear duties and obligations. I therefore do not understand why sometimes certain estate agents try to charge a commission of around 2.5% to the buyer of a property that is marketed by them. Well, in fairness, I do understand why. Very often in those cases, the estate agent does not have exclusivity over the property and is probably collaborating with an estate agent who has agreed a commission with the seller. The only way the estate agent who found the buyer can get his desired 5% commission is by splitting the commission with the estate agent who “owns” the exclusivity and then charge a further 2.5% to the buyer.

The British reader will say: wait a minute! Did you say 5%?

Yes, the average estate agent´s commission in Spain is 5% of the sale price. Quite a hefty commission I must say. I am not going to enter into whether this percentage is fair or not. This is the usual commission and it has been accepted as the normal trend. What I find unfair and abusive is that the buyer is forced to pay a commission to the estate agent. In fact, sometimes, this is part of the negotiation between the estate agent and the buyer and the seller is not even aware of this condition which only benefits the estate agents. The unexperienced buyer who falls in love with a property may accept, driven by emotion and impulsiveness, this condition but if there is a lawyer involved, this will not be accepted. At least if I am the lawyer acting for the buyer.

This is what happened this week with some British clients who wanted to buy a lovely 2 bedroom apartment in the trendy area of Poble Nou, Barcelona. The estate agent drafted a reservation contract where one of the clauses stated that the buyer had to pay a 2.5% commission fee to the estate agent. My clients, bless them for their good intentions, thought this was normal practice but had the precaution of seeking independent legal advice. Here is where the lawyer- or the trouble maker in words of the estate agent who tried to convince the buyers that there was no need for a Spanish lawyer- entered the equation and forced the estate agent to charge his commission to the seller. My clients were very grateful that I could save them a large amount of money and paid the 6000€ reservation to reserve the property in a less estate agent bias reservation document.

There is still a lot of work to be done. There is still the due diligence to be carried out, the payment of the 10% deposit and signing of the contract and, of course, completion but at least my clients did not start their purchase losing money.

Don´t get me wrong. This is a separate case. I must say that in most property transactions that I work on, the estate agent is uber professional and their fees are paid by the seller. In fact two weeks ago, I completed a sale in Tenerife where the estate agent was exceptional. A rating of 10 out of 10.

One detached behaviour should not taint a sector where there are plenty of good professionals. However, if you are planning to buy property in Spain, please keep an eye for this type of abusive clauses and seek independent legal advice.