My exclusive custom note, is it legally correct?

• Many professionals are unaware that the exclusivity clauses that they introduce in their sales management orders are not effective, and consequently they do not allow them to charge their fees
• The drafting of these exclusive clauses must be as clear as possible to avoid conflicts and judicial interpretations contrary to the interests of professionals.

According to the studies carried out by the legal consultancy Promein Abogados, 65% of the real estate agencies of the Community of Madrid use an exclusive clause in their mediation contracts and / or mandate that lacks legal effectiveness. This error is explained by the fact that the document "Signature" appears on the documents signed by clients, although the reading of its contents makes it possible to detect that the nature of the document is not such.

When is there an exclusive contract?

There is currently no legal regulation on the intermediation or real estate mediation contract. That is, there is no regulation that says how the contract should be, how much has to be paid for fees or when they have to be paid. Since there is no regulation applicable to the activity of real estate brokerage, the parties to the mediation contract, that is, the owner of the apartment and the professional of the real estate sector, can establish the agreements that they deem pertinent (art.1.255 C.c.). 

One of the possible and most frequent pacts is that of exclusivity. Traditionally, the exclusivity agreement means that the owner of the real estate is obliged to pay fees in a series of cases in which it is not the professional himself who has presented the buyer to the owner: 

In the event that the owner sells the property directly to a third party during the period of validity of the exclusive. 

In the event that the owner sells the property through another real estate agent different from the one with which he concluded the contract exclusively during the period of validity of the exclusive. 

In the event that the end of the period of validity of the exclusive, the owner sells the property to a client presented by the real estate professional during the period of validity, or finalized it. 

These special cases in which the right to collect the fees by the mediator arises may be subject to full regulation in the agreement entered into by the parties. 

In the absence of a legal regulation of the exclusivity clause and because it is an issue that is not always easy for clients to understand, prudence and common sense (as well as the content of jurisprudence) advise drafting these clauses of the form clearer and more precise as possible, since in this way it will be clear to each of the parties, professional and owner, what are the rights and obligations of both. In addition, the greater the clarity of the clause, the less room for maneuver for interpretation, the judge will have to judge the possible conflict that may arise. 

In other words, if the contract that we have titled Exclusive Sales Management does not correctly link the legal effect of the infringement of the exclusive, we will be faced with a simple order note.

Which exclusivity clause is recommended?

Professional fees: The fees of "Real estate agency" will be _______% (plus 21% corresponding to VAT) on the sale price, which will be accrued once the sales contract has been perfected. The fees of "Real Estate Agency" will be accrued, equally and in full, if the transfer is made directly by the property or through another intermediary during the term of this order or if, despite having expired or been terminated for any reason , the sale occurred to any of the clients presented by "Real Estate Agency".