Estate agent fees..legal issue

Roy, understand where you are coming from and because friends ( Ill advisedly IMO ) signed a contract with this clause they are compelled to pay for a " technically sold" property the agents are now remarketing at no extra costs to himself. 

If this scenario had happened in UK, where we know REA's are qualified and regulated the agent wouldn't get a dime for his time because until exchange of contract property is classified as " under offer

Guy, will offer up a précis of events to hopefully thwart your confusion.

Couple of months ago buyer gave REA a deposit of €25k. REA gave €22k to vendor and retained €3k towards his commission of c €15k.   Completion date agreed to be middle of November. 4 days ago buyer pulled out. No reason gives ( as yet).

Although sales contract stated buyer could recover deposit due to refusal of mortgage both lawyer and REA  have told vendor buyer VERBALLY stated they were cash buyers. My question is how would either REA or sellers lawyer know this was true.

REA immediately requests vendor settle the bill of c€12k as per signed contract. This was done today.

So okay, vendor at the moment is c €10k in credit less expenses for organising removals  etc. not to mention the stress involved.

What I fail to understand is HOW anyone would willingly lose €25k so what I am concerned might happen is that having paid the REA , without an explanation of why this  has happened,  the lawyer for buyer will insist it was a financial problem ( mortgage problem) and request return of deposit ( something they cannot due because REA now has the major portion) citing possible court action or to sell them the house less this amount. 

Having spent my life involved with people who have been scammed am hoping this time my gut feeling is wrong.

As a non-lawyer with a layman's interest in contract law, I would say it will depend on whether the suspensive clause ("providing we can get a mortgage") was activated. 

Of course, if it was activated, one can always call their bluff by offering to provide the mortgage yourself. This would naturally be at an eye-watering interest rate and a large deposit, but providing the suspensive clause wasn't more specific "whether we can get a mortgage at interest rate of less than x and with a deposit of less than y" then the buyer has no cause for complaint.. (well, he wouldn't in a lot of places - I don't know about Spain.)

If your vendors don't want to go this brinkmanship route they ought to be able to fall back on the suspensive clause themselves, as if it was activated, then the sale did not take place and the estate agent fell at the final hurdle; he has sadly not earned his commission. But then they have already capitulated, you say.

Presumably the vendors/lawyers could ask for proof the mortgage had been refused.

On the other hand the buyers may just have got got cold feet and walked away. And you may be fretting about nothing. Google "panphobia". A lot of people on this website suffer from it.

You would be surprised i Spain how often people do walk away from sales where they have paid a large deposit because legally to recover this it would be a lengthy and expensive process with no guarantee of success and jist getting the case to court taking 2 years

GuyT is also correct in saying that what does happen, especially with new build contracts is that in order to excercise this clause the buyer has to prove that they have been declined a mortgage by 2 different suppliers, this could be for exanple because somebodys personal circumstances have changed, they might have lost their job

But let's again make it clear that on property purchases in Spain it is normal, and legally correct that when a buyer and vendor, have signed a private purchase contract. that legally the sale must go through or compensation is paid

The process is that normally is that the buyer signs a reservation contract and pay normally €3k - €6k reservation deposit which is then subject to the issue of a private purchase contract and often on a resale property the balance on completion. On a new build staged payments till completion which should ALWAYS be supported by a bank guarnantee

So Roy, who is responsible to pay the REA when you state a normal deposit is between € 3 - 6 kwhen commission due is 7 - 10 % of purchase price ( which is the going rate in this area ).   Or a set fee, as in this case,  of €15k.

Thought selling property in UK was fraught with danger but here , if this contract is  norm legal practise, the only guaranteed winners are the agents.