Leaked emails dating from 2013 and seen this week by Estate Agent Today appear to show a number of estate agencies discussing when they could leave Zoopla and join what was then referred to as “an alternative portal.”
Most of the emails are written by representatives of Knight Frank and Chesterton Humberts (as it then was - now Chestertons). Representatives from Savills, Strutt & Parker and Kinleigh Folkard & Hayward estate agencies are copied in.
Many of the emails concern negotiations these agents were at the time having, collectively, with Zoopla Property Group regarding fees and contract duration for 2013/2014.
The agents hired a third-party negotiator from a marketing company to act on behalf of what was called at the time ‘the consortium.’
This collective negotiation was apparently the norm between these agencies and ZPG from about 2011. The consortium came together to leverage the best possible deal for its members with ZPG.
Many of the emails discuss specifics of the subscription rates these agents were to pay per branch in 2013/14. However, some emails also discuss the duration of the contract, which some agents wanted to be nine months rather than a more conventional 12 months.
There were also comments which appear to refer to options to leave ZPG and/or join an alternative portal.
For example, the first two paragraphs of an email written by a Knight Frank representative to the third-party negotiator on February 26 2013 - and copied to named agents at Savills, Strutt & Parker, Chesterton Humberts and Kinleigh Folkard & Hayward - were as follows:
Thanks, I met with [Savills agent] and [Strutt & Parker agent] yesterday PM. Our considered view is that we don’t want to pay more but we don’t ultimately want to come off this year since we don’t have the alternative portal in place.
We realise that capping the [ZPG] increase ... is unlikely to be agreed by Zoopla and that we would need to give you instructions that we would come off to give your negotiations bite which we don’t feel we can do, frustratingly.
Another email, dated February 28 2013, was written by a Chestertons representative to a Knight Frank agent and the third-party negotiator, and copied to representatives from Savills, Strutt & Parker and Kinleigh Folkard & Hayward. It says:
My gut says we should try to hold out for a 12 month contract. Better to be locked in for the extra three months than be fighting another 12 month contract in Jan/Feb next year. If we are not ready by then (and I have my doubts) we are then faced with paying for perhaps 6 to 9 months of a contract we don’t want.
The agencies involved in the 2013 emails went on to become prominent supporters of OnTheMarket.
In a statement last week, on April 21, the Competition and Markets Authority said: “The Competition and Markets Authority became aware that some estate agents may be making joint decisions to join the OnTheMarket portal and to remove their business from competing portals, rather than reaching these decisions independently of each other. The CMA has also contacted some agents that it suspects may have been directly involved in such activity.”
On Monday of this week, Estate Agent Today asked for comments from Knight Frank and Chestertons on the emails contained in this story and written by their representatives.
Knight Frank says: “Our various commercial negotiations with Zoopla all took place well before the start of the OnTheMarket portal. We have at all times acted completely independently of other agencies in the choosing of our second portal.”
Chestertons says: “Our portal choices are made wholly independently, something that was clearly demonstrated in January last year when Chestertons chose to remain with Zoopla due to its then-position as a strong London-centric portal, while many of our competitors dropped it. As we anticipated, the property portal landscape changed dramatically over the following months and in September, we made the decision to resume our presence on Rightmove.”
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This can't be serious can it?
If the wording above is really written by these people - and I can't understand why EAT would make it up - they could be in very hot water. Collusion is collusion and regardless of Agents Mutual, here is evidence of supposed competitors getting together to act against a supplier. Add the fact that they have formed a 'board' around which they could reasonably be accused of plotting to damage Zoopla (look at what has happened) - and this starts to look very much like a cartel. The worst penalty for that is prison, and of course the potential fine - 10% of global turnover!
Their - genuine - competitors must be rubbing their hands in glee. Knight Frank's global turnover is???
What were these people thinking?
They were probably thinking they could get away with it - most people involved in collusion of this kind do. Obviously we have no way of knowing the veracity of the leaked emails, but if they are genuine those above are pretty much banged to rights.
Whether any action is taken against them is another matter altogether.
*Chokes on cornflakes* This is incredulous or maybe to be expected, but just got busted? They also seem to have a (unimaginative) name for the cartel - The Consortium - who claim to act independently but then email each other..."we don’t ultimately want to come off this year since we don’t have the alternative portal in place." THE ALTERNATIVE PORTAL!!!! You lot are incapable of thinking or acting alone. No doubt there were frantic emails this week discussing how to comment. Onthemarket agents up and down the country today no doubt also deleting hundreds of emails. CMA Ann Pope - hope you've had extra shredded wheat today. You're gonna need it!
This is going to get interesting over the course of today
Published October 2014
https://www.estateagenttoday.co.uk/1526-industry-quake-3-is-the-agents-mutual-exclusivity-rule-legal-what-are-the-consequences-if-it-isn-t
Published June 2015
https://www.estateagenttoday.co.uk/industry-views/2015/6/its-time-for-otm-to-drop-the-exclusivity-ruler
Extract
'Every day the exclusivity rule persists increases the risk of severe fines and penalties being levied against OTM and its members.........Most importantly, however, dropping the exclusivity rule now will minimise the risk of a full-blown CMA investigation and the possible dire consequences this could have for the OTM business and its member agents'.
Gosh - there's a Shinerocks on the OTM portal. Any relation Mr S
http://www.shinerocks.co.uk/
He ain't heavy, he's my brother😫
#whoops . I love knight franks answer "we did this before Ontharket was formed"...........when it was still illegal
They could be in very hot water over this. However, I can't help thinking that perhaps the CMA should also have a close look at the dominant positions of RM & Z. Although no one has suggested that they are acting as a cartel (far from it I'm sure), their market dominance and hence ability to charge very high fees to agents (particularly wrt to RM) surely has a knock-on effect for the general (property buying/selling/renting) public.
Peter - I saw this argument run through at a debate a couple of years ago. At the time, Rightmove were charging £600 per office and Zoopla about £300. With the average office carrying 60 properties, it costs £10 per month to advertise a property on Rightmove, and £5 on Zoopla.
The trading standards chap in the room that day scoffed when it was suggested that consumers were getting a bad deal as a result of portal dominance, with the average fee being around £3000.
Their prices have gone up a bit (Rightmove more) since then, but not hugely.
The trouble with the RM/Z dominance argument would unlikely hold water.
But why??
In EU law there is a part that allows dominant players:
http://ec.europa.eu/competition/antitrust/procedures_102_en.html
It applies to the main leaders that have more than a 40% share. Rightmove and Z have NOT tried to block others entering the portal market.
To be dominant is not in itself illegal.
But to operate in a market and place unfair competitor restraints such as the 'one other rule' or to restrain types of traders ie supporting Hg St, yet banning online only that gov accept and encourage to give consumers agency choice, could definitely be seen as anti-competitive.
You then have to look at the structure of who owns and drives the entity or colluding entities and thus has laid down or supported 'unfair' restraints on others.
Well said, Trevor.
If true (and I really do question whether it is) could this result in custodial sentences?
Sounds like the panama papers of the estate agency world
And, like with the Panama Papers scandal, I'm sure the above people will get reprimanded in the appropriate way. Oh, wait...
"Knight Frank says: “Our various commercial negotiations with Zoopla all took place well before the start of the OnTheMarket portal. We have at all times acted completely independently of other agencies in the choosing of our second portal.”
Chestertons says: “Our portal choices are made wholly independently, something that was clearly demonstrated in January last year when Chestertons chose to remain with Zoopla due to its then-position as a strong London-centric portal, while many of our competitors dropped it. As we anticipated, the property portal landscape changed dramatically over the following months and in September, we made the decision to resume our presence on Rightmove.”
Classic "we've done nothing wrong, guv" statements from those involved. I've got a feeling this is going to run and run, and isn't going to be pretty for those involved with AM or OTM.
Its hard for any directors of AM or OTM to say that 1. AM and 2. OTM just appeared. Such things don't arrive like a Chrimbo present. They have to be put there.
Im sure the 'putters there' had to have pre met up. Put funds in to build coding and web structures and designs. The drivers would have also jointly agreed conditions of entry, ie members will have to leave all but one other portal on a list of x. Plus agree that an embargo would happen on 'online only' agents.
Absolutely hilarious!!
This doesn't look very good for AM/OTM. I expect this isn't the last we will be hearing of this, despite the attempts of Knight Frank and Chestertons to nip it in the bud.
I can't really see how these agents - who went on to become prominent members of AM and the subsequent creation of OTM - weren't aware of the CMA rules and weren't aware that they were breaking them by colluding and having these clandestine email chats. There is some serious explaining that needs to be done, that much is for certain.
The one other portal rule was always a silly, ill-thought out idea. Yes, you could argue that OTM wouldn't still be going without it, but in my view it was a badly misjudged and wrong-headed move. That, along with the decision to exclude online agents and the over-the-top ambitions, will probably be OTM's undoing. Stories like this, and all the other negative PR surrounding OTM in recent months, also won't help.
Company 1: ON THE MARKET LIMITED / Company number 05387791
shows 1 director: Ian Peter Springett and 4 resignations
There is also:
1: ONTHEMARKET (PROPERTY PORTAL) LIMITED / Company number 09104303
WHITELEY, Paul Timothy
Then shows:
2: AGENTS' MUTUAL LIMITED / Company number 08381458
This company does not have any OTM directors registered as AM directors and vice versa. as such two separate entities (or three) showing AM/OTM collusion.
Directors show as:
ABRAHMSOHN, Trevor Steve
BARTLETT, Robert Hardington
FIDDES, Michael John Alexander
FLINT, Noel Ashley Vere
HAYWARD, Hugh Mark (heavy NAEA history)
JARMAN, Paul John
MASTERS, Paul Martin
MEAD, Edward Philip Uttermare
SMITH, Paul Alick
HODGSON, Michael Edward
ROOK, Clive
Equally there have been many agents driving enrollment in England, Wales and Scotland and Northern Ireland.
One must also consider legislation like the 1979 Estate Agents Act that centres around agents best performing for their clients. As such if a MD/CEO has placed restraints on staff to do less well known outlets against their staff's knowledge that other options they removed listings from. Then there is a massive consumer let down to have received less than many were promised at time points.
New portals have to be allowed time to establish for sure. But in doing so the one other portal rule shouldn't have compromised clients along the way.
Unfortunately, how can you judge what fall in awareness failed sales or lets to happen.
Placing commercial restraints that interfere with consumer trust to achieve best must hit EU/UK 'anti-trust ' laws and as such would be massive if the CMA Open Letter of the 21st are found against parties
Trevor
You really have it in for OnTheMarket.com, so much so that this must stop you from doing your day job!
What did they ever do to you?
@ Scratched Record - they wrote to some of our INEA agent members and tried to bully them into leaving us under their 'one other' rule.
At this point we have simply stood our ground and reported to the powers that be anti-competitive attacks from AM/OTM at the INEA group.
When they threaten legal action on our members then we stand by our members. Equally it stinks that OTM can embargo some agent types over others.
INEA is also about uniting agents to help consumers by opening their properties for sale and to let to larger applicant bases.
It seems absolutely negative to restrain agent operatives from exposing clients listings to more potential buyers and tenants. Consumers trust agents to max interest. Not restrain exposure.
I trust this answers your question.
Of course this will run and run because this whole thing is turning into a 'witch hunt' by those who like telling others that they know best on what a business should offer. This especially applies to the their perceived main thinking seems to be that exposure on multi portals is best for clients. Is it?. Choice has not been removed from the market place, it is always there.
Is it a witch hunt if they have done something wrong and are being called out on it?
Unless they can prove they haven't done anything wrong or that the emails weren't sent from them, then they have some serious questions to answer. Just because they're Knight Frank and Chestertons doesn't mean they shouldn't receive the same treatment as everyone else.
Obviously, this all needs to be investigated thoroughly and various things ironed out, but I don't think there is a conspiracy against AM/OTM as some people seem to think. They have brought a lot of the negative PR on themselves by their own ill-judged actions
@ Ray - isn't that what AM and OTM have tried to do. Didn't they start the witch hunt by placing embargo's on lawful other platforms and agents.
As for choice. When hands are tied, its a definite restraint.
Ray - if CMA don't stop AM/OTM's one other rule - *** WILL IT BE OK for RM and Z to ban any OTM agent from placing homes for sale on RM and Z.
I see that CMA has to make a statement at some point in the coming weeks/months to either allow competitor embargo's.
Or to take action on AM/OTM on the embargo's they have created.
Fairs fair. How long would AM/OTM last if it's agents have to drop the big two?
Even more hilarious!!
Have they done anything wrong? Accusers must PROVE that they have - not the other way round?
If your found sitting alongside a body holding a gun Ray you don't tend to be let out until your trial commences....
I think now there's enough smoke that there'll be a few investigative journalists getting stuck into this.
From the other side, there must be a few seriously worried people and now this comes down to the prisoner's dilemma. Report before being reported is the name of the game.....
......once it's too late it will be too late
Ray Evans - maybe enough accusers have sent enough in to have prompted the CMA to sit over the situation like a storm cloud. Whether that storm cloud now erupts would depend on CMA observations as to EU and UK law.
For sure anti-trust and anti-competitive matters are very taboo.
Time will tell Ray. Time will tell.
But for sure whether the CMA do OR the don't, will set precedent for trade bans other portals and platforms could place on OTM agents. Hypothetically, what if RM said OTM agents are banned from RM and Z said OTM agents are banned from Z
The short revenue loss could hit OTM agents and their staff badly. But then I can't see RM or Z doing that and neither has INEA. As such it is unfair that OTM/AM have partnered to create such restraints.
Just for clarity. I am genuinely looking for assistance with regard to the facts - not supposition.
Isn't the issue here the accusation of "collusion" which may be anti-competitive and NOT simply the so-called "one portal rule" itself which (although not liked by some agents) does not necessarily appear to be illegal or anti-competitive in the view of the CMA?
Simon, there are many opinions. The definitive answer will be from the CMA. But at this stage facts include two main collusions:
AM (company 1) OTM (company 2) colluding to create entry rules that factually place bans on other lawful traders. ie AM have the one other portal rule that has placed embargoes on RM/Z/INEA and other digital platforms. AM also prohibit 'online only' agents from entry into OTM.
You then have competitor agents joining forces to create AM to feed into OTM and supporting / upholding factual bans on others which is anti-competitive.
Have a read here: http://ec.europa.eu/competition/cartels/overview/index_en.html
Simon Bradbury.
I am of the same opinion - more facts please. OTM's one portal rule is not illegal in the view of many others. Don't like it? Use another agent.
Trevor Mealham.
EAT would seem to be a vehicle for targeted marketing for some?
Assuming that the CMA warning relates to collusion over 'portal choices' and clubbing together with other agents as to which portals to choose, then I assume that this relates to the choices made when leaving a portal as well as choices made about sticking with a portal. Or have I misunderstood what collusion is?
Thanks Ray and Trevor. I appreciate your engagement.
So are these the facts?
Whilst it IS illegal to collude , it would appear that it is NOT necessarily illegal to have a "one other portal only" rule - as long as that rule was arrived at without collusion?
The Open Letter from the CMA says...
"Jointly agreeing with your competitors to restrict which suppliers you
will deal with is likely in many cases to be unlawful." The caveat and emphasis is on “Jointly agreeing…”
The letter makes no mention (that I can see) that a "one portal only" rule itself is unlawful...just that "anti-competitive collusion" is illegal. It further states that "... the choice of portal should be decided independently and not agreed with competitors." So, if such a decision was made independently and without agreement of competitors, I assume that it would be totally legal...otherwise the letter from the CMA would have stated otherwise.
Consequently, is it not the issue of a "one portal only" rule that is the legal problem - just the issue of "collusion".
Is that correct?
Sorry - also thanks to Paul! I have only just seen your post.
Simon, it is not 'just the issue of collusion' which is the problem, although that is a pretty big problem, were OTM to grow to a certain size my understanding is they would also be forced to drop the OOPR per se or face action from the CMA.
Thanks - always good to hear a comment from a fellow Simon!😀
The reason I ask is that although I see a reference to concerns regarding "jointly agreeing" and "collusion" in the CMA statements, I can see no such reference from them that the "one other portal rule" is illegal per se. However, other posters seem to reference it as such. I just wondered where they got that information from ...that the "one other portal rule" is in itself illegal.
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