.

When I joined the ranks of the overseas property industry as an agent selling Spanish property way back in 1995 there wasn’t much to it really. There were only a couple of local Irish agents preceding us and the only country of note in which property was being promoted was Spain. Ireland hadn’t developed a reputation for being a country of any means at that stage so most UK agents hadn’t yet noticed that the country even existed. Even in the UK itself, which has had a significant overseas property industry since the 1950’s, the overseas property agent was predominantly a small office or, in many cases, an office in the back bedroom. It certainly wasn’t a real ‘industry’ per se.

Once we hit the noughties, however, things started to change rapidly. A lot of money flooded into the market and a new breed of bigger, better financed and more professional company entered the overseas property industry, dragging it kicking and screaming into the new millennium. There are those who applauded (and still do) this development, in fact, to a certain extent I am one of them. Things couldn’t go on as they were, there was more professionalism needed right across the industry. The big problem is that our legal frameworks to deal with a proper ‘overseas property industry’ were never developed in tandem with the explosion in new, bigger and more powerful property sales teams and the sometimes rather dubious ‘creative talents’ they brought with them.

There were also a significant number of agents and developers working in the overseas market who had identified that this was an industry ripe for the picking due to the lack of regulation – which is still a problem today – particularly in Ireland, which was relatively new to the whole phenomenon. Consequently we were visited by the worst that UK property agents could throw at us. If agents were discredited in the UK they would inevitably visit Ireland to suck the last available drop of juice from the orange before riding off into the sunset.

When you look at it in this way it is probably no great surprise that most of the stories you hear about the overseas property industry in Ireland are now tales of woe from ‘clients’ who have been ripped off at every turn. The Irish market fell so head over heels in love with overseas property that we overindulged, much like a kid let run riot in a sweet shop – unfortunately we are now suffering the subsequent, and inevitable, belly ache that ensues.

What I would like to take issue with in this piece, however, is not the actual companies themselves, although many of their actions were truly reprehensible. It is the legal wall behind which many of these companies operated (and still do) enabling them to muddy the waters and prevent penetration of the many perfectly legitimate questions which their clients seek to raise.

I feel that the legal profession has serious questions to answer in the way it has allowed itself to be used to viciously threaten members of the public who dare to query companies rich enough to hire ‘big shot’ legal companies to defend how they carry out their business. It is the way of the world, you might say, but it is wrong. The legal system is entirely stacked in favour of those doing the legal threatening – and usually this means a large company with a lot of money behind it. The legal profession stands full-square behind such companies and individuals because they make absolute fortunes from protecting their names and the information that results from the fallout of their activities. Is this really the way we want our system of justice to operate? 

You could say that we get what we deserve as, there is no doubt that the Irish government has shown scant regard for the issues affecting those with problems in the property realm outside (or even within) Ireland. The National Property Services Regulatory Authority (NPSRA) is still, four years on, regulating absolutely nothing.

Those in the general public with a significant problem have had, until relatively recently, no option but to persuade a sufficiently interested newspaper to carry their complaint – not an easy task to say the least and one in which most people, understandably, fail. It is not something which is generally achieved unless there are a lot of people affected, and by that time the damage has generally been done to an extent where it cannot really be rectified for most people involved – so they are, again understandably, disinclined to take this route.

Taking legal action is generally outside the reach of the average property buyer because it is too costly to entertain and the odds are stacked heavily against them ever getting a penny in return.

Then along came the internet. The rapid rise in publicly accessible blogs and forums (or fora, take your pick) has allowed Joe and Josephine Public to air their grievances in a very public fashion. Consequently we have seen an awful lot more threats from overseas property companies who have had their previously impregnable legal fortresses breached over the past couple of years. If you visit forums such as Ask About Money or the Singing Pig the first thing that will greet you is a large warning that posts about certain companies will not be tolerated. I have spoken to the owners of several such sites and you can be assured, such warnings are not uploaded unless there have been many legal threats from the companies in question.

I looked for a viewpoint from Tom McGrath, a well known and highly regarded solicitor in the Irish overseas property industry. McGrath says: “People are entitled to express their views in forums and blogs, and many of these opinions may be genuine cases of grievance. However, as our legal system stands, an entity is entitled to protect its goodwill and reputation against frivolous and vexatious claims.

He continues: “That said, there is a mechanism whereby a potential plaintiff may choose to ignore a legal threat from a company. If they do so, they may either be vindicated and succeed in their action, or alternatively, they can be punished, and liable for damages and costs. Indeed, such damages may be punitive due to the previous warnings having been received.”

McGrath concludes: “The bottom line is that if someone has a genuine complaint, they must be in a position to substantiate it, and if this is the case, there is a proper procedure through the Courts, and not through blogs and forums.”

This, however, is the whole crux of the issue. Bringing a case to court against a powerful and wealthy company is sufficiently expensive to make sure that such claims are hardly ever entertained by clients who have been shortchanged – so rogue agents roam free. 

Surely it is not right that a company can renege on promises made to a client at time of purchase such as forcing them to make further purchases of furniture, inventing extra charges out of thin air such as unpaid VAT or spurious rental management charges or threatening a client’s future solvency by refusing to make guaranteed rental payments. These are only some of the myriad complaints I come across against overseas property companies week in, week out.

In a personal capacity I had a very serious argument with the owner of a large and powerful overseas property company who had legally threatened the OverseasCafe.com on the back of information that had been included in a blog about his company. The information was perfectly legitimate; it pertained to a ruling against the company by the National Federation of Overseas Property Professionals (NFOPP), a perfectly creditable and worthy organisation. Despite this fact we received a number of strenuously worded legal threats from the company’s lawyers and a string of abusive emails from the owner in question (whom I know reasonably well from my time in the overseas property industry).

He felt that forums should not be allowed to publish information until proven in a court of law – well within his company’s comfort zone. My argument, largely lost on him, was that threatening and taking legal actions was an everyday part of business life for him and his company – which would in itself, you would have thought, ring a bell about the level at which his at company operates - whereas a normal everyday consumer couldn’t possibly afford to confront companies such as his on an equal footing, they simply don’t have the economic means to do so and would be ruined if they lost the case. Consequently I argued that companies such as his got away without reprimand for activities they should not be allowed to entertain in a democratic and fair society. We agreed to differ.

It has been noticeable that there are a number of websites beginning to stand up to the legal bullies, allowing information to be spread about companies based on user experience. You’ll find plenty of information on companies with a poor track record on sites such as Rip-Off Report and The Complaints Board. Personally I don’t feel that such sites are the answer to the situation – as there is generally no effort at balance - I merely mention them here as an example of what has happened as a reaction to the lack of equity currently evident in our legal systems. Let’s face it, the very names of the sites would indicate that someone with a good word to offer would not be welcome – but then it could well be argued that such companies are in a financial position to pay PR companies to invent all the positive spin they require. You need only pick up a newspaper’s property section (if you can find one these days) and you’ll have case studies of ‘happy clients’ up the wazoo.

In any case, it would appear that something needs to happen to enable the legal process be equally and fairly available to every citizen who desires and needs it. There are currently no repercussions against a lawyer who issues legal threats like confetti – perhaps there should be. Perhaps the issuing of legal threats by a company over a certain threshold should trigger investigative action as to what has necessitated such volume. Let’s face it, the harassment of general members of the public by those who know the legal system inside out, can afford the expense incurred and know how to use the system to their full advantage is a genuine problem – certainly in the overseas property arena and, more than likely, in other areas of life.  

You can of course argue that such ‘freedom of information’ is simply a means of sullying the names of perfectly innocent people or companies, and there is no doubt that there is a grain of truth in this statement – paper doesn’t refuse ink and the internet is quite attracted to the controversial. In my experience in this industry, however, people don’t generally rush out to rubbish individuals or companies unless they genuinely feel they have been wronged in some way and that they will have no access to legal recourse due to the prohibitive cost involved.

This explosion in information transfer can, in some ways, be seen as a ‘balancing of the scales’. For a very long time big companies and rich individuals used the fact that they had control of information for their own betterment and to the detriment of competitors and clients. The information deficit is now being balanced somewhat – but not perfectly by any means. Information on unscrupulous companies and their activities can be spread across the internet in minutes – verifying this information is the big challenge for the future. It is the complete opposite of the situation to which big business has become accustomed and it is not being liked. The peasants are indeed, it would appear, revolting.

Consequently the legal representatives of big business are in overdrive and are, of course, creaming off a huge profit in their own right. Don’t expect the legal profession to look for a change in the status quo anytime soon – they just love the internet and the extra avenues of revenue it provides.  

P.S. No solicitors were harmed in the writing of this article – I did ask a few others for their comments but they, probably understandably, refused the offer.

Diarmaid Condon is an overseas property consultant with significant agency experienced. He can be contacted via his website at www.diarmaidcondon.com.

Register now to receive our informative newsletter, save searches and tailor your OverseasCafe.com experience to your own needs.