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Written by rosalind renshaw

The estate agent who saw off the Tesco property portal threat is now poised to take legal action against a property search engine which has refused to take his properties off its site.

Michael Brain, chairman of Hannells in Chellaston, Derby, took legal proceedings against the Tesco property portal, demanding that his properties be removed after Tesco did a deal with  Fish4 to take its lists.

His bid was successful and many other agents followed suit – to the detriment of the Tesco property business.

Brain has now been angered by the discovery that home.co.uk had ‘scraped’ his properties without his knowledge or permission.

He wrote to home.co.uk on July 13 saying that Hannells retained copyright on information relating to their properties and that no one else could carry this information unless instructed.

He argued: “We have not instructed you to advertise our properties and this leaves you in breach of copyright infringement.”

But home’s business development director, Doug Shephard, wrote back: “An estate agent has a duty to act in their clients’ best interests and to behave in the manner of a reasonable professional. Our website received in the region of 2,400,000 visits over the last six months, during which time 17,000 potential buyers found property details pages featuring your clients’ properties by using our property search engine. We cannot see that attempting to hide your clients’ properties from this pool of visitors will fulfil your duty towards your clients.”

He went on: “You will be aware of the case of John D Wood v Knatchbull (QBD) [2003] 1 EGLR 33, where an agent failed to pass on information about nearby prices to their client and was found liable for loss incurred by the consequential sale of a property below the market value.  Failing to receive and/or pass on potential buyers to a client would have the same effect.”

A furious Brain retorted: “How dare you threaten me relating to hiding potential clients from my vendors. None of them would have heard of your company and I doubt would even look at the site. Your site is a site that we do not wish to be on.”

Following the exchange, Shephard told EAT: “Our property search engine is an automated property finder service we provide for home buyers. We cannot see why any estate agent would wish to hide their clients’ properties from any potential buyers.

“Moreover, we are greatly concerned that such attempted actions are not in the interests of vendors and may lead to accusations of malpractice.

“The Home.co.uk property search engine delivered 17,000 buyer visits to properties marketed by Hannells in just the last six months. Why would any agent want to cut off this source of potential buyers?

“One might also ask if their vendor clients would have instructed an agent if they had known that the agent operated a negative marketing policy”

Brain said: “This is our business and the vendors have signed our contract. All the copyright belongs to us and we choose who may use such material. At no time do we tell
sellers about this website and we won’t be doing in the future.

“We have no collectable data that say any of our leads come from this website. Surely it is up to us to say where we wish to advertise our properties.

“Please, agents, take note and do not advertise with this guy. He is arrogant in his approach, and tells you that you are not servicing your clients to the full. He also quotes certain court cases as if to frighten you into submission.

“I will definitely be pursuing this matter with my legal team and suggest you all do the same.”

Comments

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    Other variant is possible also

    • 01 November 2009 16:05 PM
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    What is really required here is a FULL investigation by the OFT into the Estate Agency / Conveyancing / HIPs industry. Its a dirty world of back handers and hidden commissions.

    The home.co.uk issue is all about money and control of a market that is in need of change. That change will come with the advent of sale by owners.

    Agents need to focus on providing REAL service.

    Any in politics its the silly season - I guess its the same in Property. Maybe these guys have both been in the sun too long

    • 27 August 2009 17:16 PM
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    lhbjUW viTwQ937Baww5mLp1oWxu

    • 18 August 2009 13:53 PM
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    cool, i will bookmark it,

    • 31 July 2009 07:28 AM
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    thank you dear friend,

    • 31 July 2009 07:27 AM
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    nice job, very thanks,

    • 31 July 2009 07:27 AM
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    Good Thank you Its very beautifully,

    • 31 July 2009 07:27 AM
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    Thanks this design is very good..,

    • 31 July 2009 07:27 AM
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    Great topic, nice message. Thank you.,

    • 31 July 2009 07:26 AM
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    Very interesting!Id like to see how far he goes and how well the word will get out.,

    • 31 July 2009 07:26 AM
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    Thanks for your insights I couldnt agree more.,

    • 31 July 2009 07:25 AM
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    thank you dear friend,

    • 31 July 2009 07:25 AM
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    Great work . Thanks for your ideas.,

    • 31 July 2009 07:24 AM
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    Thanks for your insights I couldnt agree more.,

    • 31 July 2009 07:24 AM
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    Thanks for your insights I couldnt agree more.,

    • 31 July 2009 07:24 AM
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    thank you dear friend,

    • 31 July 2009 07:24 AM
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    great tips. I enjoyed reading this,

    • 31 July 2009 07:24 AM
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    Thanks for your insights I couldnt agree more.,

    • 31 July 2009 07:23 AM
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    Search engines have always been an integral part of the internet. Unless a known web address is entered, there will always be a reliance on search engines. The only real difference with scraping is that the results are displayed in a logical and presentable format. As long as there is an easy opt out option for those who for a particular reason do not wish to be associated with a particular search engine/scraper then there should not be an issue. In the meantime, this whole topic will provide fodder for those in the legal profession, and will give legislators something to ponder over for some time to come.

    • 24 July 2009 22:49 PM
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    Alternatively, home say they have around 656,000 properties on their site - if there were 2.4m visits, that equates to around 3 visits per property.

    Or if 17,000 visitors landed on a property page amongst 656,000 properties, that's a 2.59% (1 in 39) chance that the visitors will land at any property that you, the agent, have listed there.

    Does that sound like good odds?

    • 24 July 2009 11:15 AM
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    The numbers don't seem to add up - if there were 2,400,000 visits, and 17,000 buyers landed on property pages, that suggests each visitor viewed around 140 properties - (2.4m div by 17000....)
    surely not?

    • 24 July 2009 11:11 AM
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    It's like Ferrari using a tramp to model it's cars. It might be free but looks sh*te.

    Brian play hard ball, get your vendors to sign saying they want their house off the site due to over exposure and looking desperate. Sue the websites and get rid of these leaches.

    • 24 July 2009 10:00 AM
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    Probably already been said but not reading all posts.

    Agents can argue that branding is important and these cheap and nasty sites could actually cost our vendors money.

    BUTT out websites and spend £100,000 on marketing like we have to before you make any money.

    • 24 July 2009 09:43 AM
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    On a similar vain - this week I have had numerous vendors come in with a brochure that had been sent in the post addressed to the HOMEOWNER. It was a letter and professional looking brochure offering to buy their property from them. The brochure advised that they were a private buyer therefore the agents fees would not be payable!! I contacted the company to ask exactly how they received the addresses of the properties only to be told that they got them off websites and for sale boards. I disputed this as some of the properties didnt have boards and I never put full addresses on any of my literature except the full set of details. I advised them that I wanted a meeting and that if they were on our mailing list enabling them to receive my details then I would be taking advice from the Trading Standards as by receiving them we actually did introduce them. The chap I spoke to said he had tried to get introductions via estate agents but had been unsuccessful and I pointed out to him that was obviously because he was trying to cut us out or buying under the market values. Before I go any further on this has anyone got anything else to add to help me or had similar experiences???

    • 24 July 2009 07:41 AM
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    Surprise surprise, I have already had these guys on the phone throwing viewing stats at me... They kindly suggested what I should pay them!
    Our photography is copyrighted! They are in breach of that copyright.
    www.castles.uk.com

    • 23 July 2009 14:40 PM
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    I agree with Mr Brain, but a word of advise to him. If I were you, I would not retaliate top the negative points. Most of the agents that have commented agree with your point of view and responding to the detrimental commments will only make you look less favourable. You have a very valid argument but please do not satisfy the posters that look for people to "bite". Comments posted may not always come across as you intend them to.

    • 23 July 2009 13:17 PM
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    As agents, surely we do not want to get to a point where we are paying to advertise on hundreds of different property portals that receive little or irrelevent hits. Yes it is free, but for how long. It is just another site to check that details are being displayed correctly on and for no return. If the site had consulted Mr Brain, this would not have been an issue. Surely they could not have expected to do this without upsetting people.

    • 23 July 2009 13:13 PM
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    I guess if agents could generate their own datafeeds on their own computers and transmit these feeds to the portals of their choice, without having to rely on any 'software provider', then there would be no need for any portal scraping their properties. We have received an email offering a system which allows agents to do precisely this. We will be evaluating this. The email was from propertydatastore@propertyfoyer.com in case anyone else is interested.

    • 23 July 2009 09:28 AM
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    Legal issues
    Web scraping may be against the terms of use of some websites. The enforceability of these terms is unclear.[2] While outright duplication of original expression will in many cases be illegal, the courts ruled in Feist Publications v. Rural Telephone Service that duplication of facts is allowable. Also, in a February, 2006 ruling, the Danish Maritime and Commercial Court (Copenhagen) found systematic crawling, indexing and deep linking by portal site ofir.dk of real estate site Home.dk not to conflict with Danish law or the database directive of the European Union.[3]

    U.S. courts have acknowledged that users of "scrapers" or "robots" may be held liable for committing trespass to chattels,[4][5] which involves a computer system itself being considered personal property upon which the user of a scraper is trespassing. However, to succeed on a claim of trespass to chattels, the plaintiff must demonstrate that the defendant intentionally and without authorization interfered with the plaintiff's possessory interest in the computer system and that the defendant's unauthorized use caused damage to the plaintiff. Not all cases of web spidering brought before the courts have been considered trespass to chattels.[6]

    • 22 July 2009 21:50 PM
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    from my experience, wholes copying is not OK, taking snippets ( a subset of information) for marketing purposes is OK e.g. site should leave contact details on originators

    • 22 July 2009 21:48 PM
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    Goole scrapes and indexes all site son the web, although you could ask to be removed - not sure what is wrong with a free ad though? Its a free world I guess.
    BTW, Sign up for MYEAT on the menu to get your profile, set up a group (oh and get a free ad for your business! Gulp....)

    • 22 July 2009 19:50 PM
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    Globrix scrapes properties off agents' websites without permission. Could a legal case be made against them for copyright infringement and possible damages? The other thing to note is that by scraping without permission would not the agents have a right to a part of any advertsing revenue so generated by the portal?

    Someone mentioned about xml feeds. We recently received an email about a system whereby agents could themselves generate datafeed in the Rightmove format and send directly to any number of portals of their choice (without the involvement of any software supplier), thus retaining control of the contents. Has anyone else heard about this? Would such a thing be useful?

    • 22 July 2009 18:37 PM
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    What do trading standards think of this, Im sure home.con cant just lift info from anysite the choose?

    • 22 July 2009 16:18 PM
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    Globrix started by scraping until they were told to stop.

    • 22 July 2009 15:13 PM
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    See other news story on this site"Property portal for special needs houses starts up"- get scraping home.co.uk & conceited Mr Shepherd!

    • 22 July 2009 12:54 PM
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    Have a look at the Property Owl Blog - Scraping, home.co.uk singled out dated 1 July 2009. I can't link to it in these comments, but it has some interesting observations that I feel you would like to debate.

    • 22 July 2009 12:48 PM
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    Mr Brain is right to control his own advertising. Why should people build up their website by scraping without even the courtesy of a phone call or visit?
    I hope (but I'll now check) that everyone we advertise with is by agreement only. We 'tested' a site the other day for properties in Bath. It brought up every property with a bathroom! The reply Mr Brain received from home.co.uk is truly priceless. He should reply by hand - I know where I'd stick it!

    • 22 July 2009 12:34 PM
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    this website is also guilty of telling the public that I sell a house once every 364 days which is complete nonsense. There should be a law against this intrusion.

    • 22 July 2009 12:23 PM
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    scraping should be made illegal, if the portal doesn't have the agents permission to display their client's property (and control)then they should not do it. It is simpler to control the wayward agent then allow thousands of websites to adertise potentially harmful information and be able to escape the law by being based in another country!!!
    You do not have to advertise on Rightmove if you don't want to but do make sure you have a decent web presence for your market and that you control it.
    I like Globrix, and I use others too (free and Pay) but I control them.
    saleswise.co.uk for example

    • 22 July 2009 11:57 AM
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    Surely the issue is one of CONTROL over how the agents# properties appear?

    If Home is merely 'scraping' them from other websites, not necessarily the agents' own websites, it seems, then the agent has no control over how and when their properties appear. For the sake of PMA, they should. If an error is found in a listing, and needs to be corrected, then the agent can only correct what he has access to. If Home 'scrapes' the corrected version 10 days later, doesn't that leave the agent exposed to a PMA prosecution for 10 days......?

    • 22 July 2009 11:35 AM
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    Is anyone interested in my new internet marketing concept? My site will pay the agent for the benefit of featuring their property stock as we recognise that the whole business is property driven and with a critical mass of property content income will inevitably follow.

    • 22 July 2009 11:32 AM
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    You are all missing the point. Mr Brains job is to market his clients property at the best price he feels he can get. If it is scrapped and placed on a rogue site his clients property is potentially along side other similar properties which are cheaper thereby reducing the chances of HIS clients achieving the best price. The key to successful marketing is putting your product infront of the most potential buyer whilst at the same time excluding competition. Mr arrogant is building a site with loads of traffic so that he can sell advertising. He gives not a jot about selling houses.

    • 22 July 2009 11:32 AM
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    Surely Shepherd's only real interest is in growing the value of his site. If we allow him to 'scrape' properties we are assisting him in this without any tangible benefit back - say what you like about the larger portals, at least they undertake some proper marketing and there is a visible return by way of leads.
    I've never heard of home.co.uk and were it not for this article probably never would have. Shepherd is just another internet chancer.

    • 22 July 2009 11:19 AM
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    Most are missing the point!
    Supporting or encouraging any site that is not totally controlled by the Estate & Letting Agents themselves is inviting an elephant into the room. Yes, Rightmove is the most successful at the moment and most of us use it because there is no really successful alternative. Unfortunately PropertyLive does not fill the need at the moment and probably never will unless it becomes a compulsory part of membership of any section of the NFOPP.

    • 22 July 2009 11:11 AM
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    I am in 2 minds about this. Shephard is clearly an arrogant man, using bullying tactics. Morally, he should have sought consent, but how many others are out there doing the same thing? And yes, if he does get a huge market share, where are his revenues going to come from? Should he wish to stay in business, perhaps he should change his approach (and attitiude) towards potential clients? However, I am all for free advertising. I would worry that information gathhered without our consent might be out of date and therefore detrimental to both our clients and our business, but if we have some form of control over it, the more the merrier!

    • 22 July 2009 10:55 AM
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    You are all missing the point,
    1 I have never been asked if my properties could be displayed
    2 they have tried to bully me into advertising
    3 Ther claims of 17000 leads are not true, i dont even get that of rightmove.
    4 I dont want to help in creating another monster.
    And a little information for those who hide behind an alias name because you havent got the bottle to say who you really are, and most probably were bullied at school and therefor will probably be on this site, We are the most successful agent in our area and sell twicw as many properties than any other agent in our area we were also voted second best small chain in the uk by our customers yes our customers so Mr alias what have you achieved?, this is achieved by targeting our market in the correct way and by employing the best staff, 92% of our customers come from within our area, and our own website combined with the portals we choose to use give us the best results, the information is correct and updated immediately, If you really feel that by going on every website will sell you more Houses then you are truly dillusional, and probably have no idea how to market your business correctly, PLease invite me into your business and I Will improve your business by 20% within a week.

    • 22 July 2009 10:54 AM
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    This sounds like a "no braine" to me. I have had dealings with home.co.uk and find them to be totally professional.
    Mr Brain should think himself lucky instead of trying to cause trouble all the time.

    • 22 July 2009 10:51 AM
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    Brain - petty, petty petty. He has nothing elso to do and has failed at most things. This is a case of small man-itis. Get a life Brain and do something useful.

    • 22 July 2009 10:34 AM
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    ... has anyone asked Mr Brain's clients what they want? Most, I'm sure, would say they really don't mind their property getting even wider coverage than Mr Brain chooses to allow them to have. If you put your properties on the world wide web in the first place, you're going to have this happen. It's the nature of the beast. Mr Brain, bless him, sounds a little like King Canute and the sea - there is little point in fighting the power of the web, and I can't see how the actions of home.co.uk will be detrimental in achieving a sale for Mr Brain's clients, and it might even be a contributary factor, which should surely be the most important thing, I think?

    • 22 July 2009 10:33 AM
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    I have just looked on the website Alexa.com, and all please look at this link,home uk say that they have had 2.4 million viewers and have sent me 17,000 leads. i dont know how if you look at the figures the company is quoted as the 70,000+ site that is visited, please read the link

    • 22 July 2009 10:27 AM
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    Control of documentation has to be maintained within the agents business. Under the Misdescriptions Act how can an agent manage an unmanaged, non-controlled document?

    • 22 July 2009 10:21 AM
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    Doug Shephard - you are one of the most arrogant men I have ever come across. You are not a business man you and your company are thieves and parasites setting up a 'site' on the back of estate agents hard work and simply plagarising their information without a bye your leave. Until now I had never heard of your company, have never had an approach from you or for that matter received any marketing material to promote your site.

    • 22 July 2009 10:20 AM
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    As a business owner I agree that it is at the discretion of the owners of the business where they advertise there properties, not the advertiser even if the site is free. There are many companies who do not advertise with rightmove, property finder etc should they also be accused of malpractice. I believe that it is complete madness that an advertiser is telling a company what they can and can’t do. We do not use a certain site as they are incapable of getting our information correctly. Should we also be told that we are not marketing effectively? A vendor or landlord chooses a company on the services they currently offer not on services they may offer or possibly offer. I would be furious if an advertiser had the audacity to tell me how to market my product without my consent.

    • 22 July 2009 10:16 AM
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    It was actually INEA (The Independent Network of Estate Agents) who raised the PMA objection in relation to TESCO being a agent, rather than a property retailer within 2 hours of TESCO Property Market launch. This technicality meant that TESCO could have been liable for PMA fines of £1,000's in return for the few hundred pounds self sale fee.

    • 22 July 2009 10:14 AM
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    An agent should have a choice to list where they want. Equally an agent should embrace the web and advertise with as many outlets as they can. The important thing is that the portal information is correct and that the agents ensure details are upto date. many portals use scraping (INEA doesn't). If scraped the key thing is that information is scraped correct. We do upload to home.co.uk and in defence of Doug we do get leads to INEA for our agents. We feed via a live xml data feed so data goes across pure. Searching and marketing is due to change over the next 12 months. The question has got to be if data is incorrect the portals and the agents need to talk to get things right. As for searching, Rightmove will soon undertake its biggest challenger: Google who is currently Beta testing in Australia.

    • 22 July 2009 10:09 AM
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    I cannot believe that the response from Mr Shephard is simply to argue that Mr Brain is 'hiding' properties from potential vendors. The fact of the matter is that people choose their avenues of advertising carefully and based on the types of leads and clients they get. The appropriate way to develop business is to approach potential clients with sufficient information that they can make an informed decision. If Mr Shephard is not doing this maybe it reflects the standard of his product. This bloke sounds like a prize idiot. Good luck to Mr Brain.

    • 22 July 2009 10:08 AM
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    This chap 'Brain' seems to have let things go to his head...you really need to look at each situation seperately and deal with them accordingly. Tescos was undermining estate agency as a whole in the long run would have had a serious negative effect. Home.co.uk probably should have made him aware (granted) but his was a massive over reaction as getting free advertising at no cost surely isn't something to be upset about! I think he's getting paranoid...where's Pinky?

    • 22 July 2009 10:06 AM
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    I hink it is very likely you will see in excss of 100 property portalsbefore the end of the decade offering free advertising for estate agents as hese sites can capture informaion such as buyers details for mortgages etc which can be sold on. You decide Free or Pay advertising. Eiher way surely this will lead to the demise of selling agents as vendors can do it for themslves for free too. So "furious Brain " is just protecting his business.
    Find out how to sell at saleswork.co.uk

    • 22 July 2009 10:02 AM
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    I think this is a portal that seeks critical mass and will then seek revenue. If they seek revenue from advertising fair enough, if they seek revenue from the agents, let them bite the hand that feeds them and see what happens.

    • 22 July 2009 10:01 AM
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    As a past vendor I personally wouldn't use an agent like Brain as he seems very petty minded. Although I can't speak for his customer service, if I'm paying an estate agent what is a lot of money for basically an advertising service I expect them to do their best to sell my property not to bicker with advertisers. I do get his point about the lack of permission, but maybe his principles are getting the way of best serving his customers especially in these market conditions. I'd like to know how many complaints he got from vendors about their properties being advertised elsewhere and more buyers seeing them? Estate agents should be principled but also remember who they work for.

    • 22 July 2009 09:59 AM
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    Many of our agents have concerns about the way indescriminate and irregular scraping leads to out of date information and possible PMA action. To counteract this, we have a scheme called Emerging Portal Feed where any emerging portal (we won't work with cold starts) that can demonstrate traffic and guarantee free listings and no click through charges for at least 6 months can collect a feed file containing all the on market properties from most of the 1100 branches that we work with. This gives our agents the widest possible coverage whilst still allowing control over quality of content. Emerging Portals get real benefit and our members get extra coverage which, when the real traffic figures for the various sites from Comscore are aggregated, comes close to FindaProperty / Primelocation. Some customers then ask us to make their web site "scrape proof". Incidentally, if you need a good free method of assessing traffic to a site, look at www.alexa.com - much frowned upon by marketing professsionals because but ideal for showing trends. Compare home.co.uk with globrix.com and you might see the real underlying issue here

    • 22 July 2009 09:57 AM
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    As country house search agents, we consult every property portal known to man - and a few others - to make sure we have left no stone unturned. It is increasingly common for 'free' sites to misrepresent the status of properties, to the possible detriment of a sale (e.g. the sudden listing last week of a property on which our client was about to exchange - he took a lot of persuading that the vendor wasn't remarketing).

    • 22 July 2009 09:54 AM
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    I find the claim that 17,000 potential buyers viewed Brain's properties quite staggering. There aren't 17,000 buyers in the country at the moment. The OFT should look into this as potential misrepresentation.

    • 22 July 2009 09:53 AM
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    I totally agree with the agent, I work hard to ensure my marketing is tightly controlled as the amount of exposure can have a negative impact on the price that you can achieve. I sincerely hope that the agent sues and wins. Simply touting some weak moral argument about the vendors appreciating the exposure is rubbish. Clearly you're not, nor ever have been, a successful agent.

    • 22 July 2009 09:51 AM
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    The more we help new portals, the sooner we shall be free from the hegemony of Rightmove

    • 22 July 2009 09:46 AM
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    I think we are missing the point, if Shepherd is correct, what is to stop any medium applying the same pressure to pay to advertise? Rightmove are the biggest and therefore have the best “case”. The vendors have choice in their agent, the agent wins or loses business on the basis of the service they offer, including where they advertise. Porn sites get plenty of hits, should they be bale to force an agent to advertise? Good luck Brian

    • 22 July 2009 09:44 AM
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    Below is a paragraph that this company sent me, How would you read into it, I read it as a threat, and would you deal with a company who wants to bully you into doing Business,Yes i am a man of principal, we were never approached by this company to profile our properties and if those of you think this is the correct way of doing business then you should not be in business and probably wont be for much longer.

    I am all for doing the right thing for our vendors, you all moan and groan about the bigger portals and how you they dictate to you, and you, just look at the bigger picture and what do you think this company wioll be doing if it gets a bigger share of the market wake up for gods sake.


    I am, however, greatly concerned that in attempting to hide your clients’ properties from certain potential buyers that you will not be fulfilling your duty towards your clients or acting in a manner that they or the OFT would expect.

    • 22 July 2009 09:38 AM
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    Why do you think that this company is doing this? Do you think that it will be free forever. I am sure that the amount of leads that have been sent are no where near what they are saying. Surely if that were the case Mr Brain would be welcoming them! Open your eyes and look at the bigger picture!

    • 22 July 2009 09:28 AM
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    I completely agree with Tim Mather. A storm in a teacup fuelled by the clash of two stubborn personalities. Michael Bain - Free exposure can only be a good thing surely. Doug - stop sending him free leads!

    • 22 July 2009 09:09 AM
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    Mr Brain is obviously a man of principles, trouble is he is letting his principles rule over common sense. In the current market agents (and vendors) need all the exposure they can get. Free exposure, providing it is accurate, cann't do any harm.
    Doug Shephard should learn a lesson from this, ask first, and don't be so arrogant. Michael Bain should look at the bigger picture, not just his principles....they are vendors, not your vendors, you don't own them they can easily walk, any agent who hides behind his tie in contract is on shaky ground in the long run.

    • 22 July 2009 08:14 AM
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