Estate Agency Law

Oct 12, 2012


We’re always surprised at how oblivious estate agents are to the law that governs the industry.

Often, we come across assertions from traditional agents that they are ‘owed’ commissions from sellers as a result of viewers that they may have introduced many months prior to the involvement of a second, subsequent agent. For years, it was the done thing for an agent to lay claim to such instances and they would often be paid thousands of pounds just because they had picked up the phone some while ago to someone enquiring about a particular home. They may also then have to pay the second agent if the buyer happened to have viewed via their offices too. Very unfair.

Then came Foxton v Bicknell in the Court of Appeal (2008) which, depending upon the exact wording of an agent’s contract, is the case law that sets the bar on such matters. Essentially, an agent must justify that they facilitated the viewer becoming a purchaser in order to claim commission.

The Property Misdescriptions Act is a similarly elusive authority. Ask most local agents what one of the thirty three prescribed matters within the Act are, and they will tend to look at you blankly as they would if you had just requested they recite Hamlet. The PMA is soon to be repealed an with much furore from estate agents across the land that fear the resulting absence of protection for the house selling public. However the cynical amongst us might assume that the real reason for their being disgruntled is that the lifting of this statute will open up the entire property market to all and sundry. Bring it on, we say. It’ll be great for competitiveness and will lower fees amongst mainstream, expensive agents.

But the PMA’s demise will be balanced by the Consumer Protection Act (CPR) which will now be beefed up to ensure that all companies and websites that advertise properties for sale are caught by regulations that dictate openness and honesty when describing the features of a property. Importantly, omission will now be outlawed. In other words, not disclosing a negative aspect of a property being sold can now result in prosecution for the company whereas, previously, ‘forgetting’ to mention the toxic waste dump planned for the land adjacent to a house being sold, was considered acceptable in legal terms.

But don’t ask your local agent to talk you through the detail of the 60 page update by the Office of Fair Trading on the CPR. Because when we mentioned the realities of the forthcoming changes on a popular estate agency blog forum last week, we were lambasted by our High Street peers.

Just for the record,  Beresford Adams estate agents of Wrexham are this week £9000 poorer for not disclosing the existence of a mine shaft under a property that they sold. Previous abortive sales for this reason meant that they knew of the problem yet failed to tell the buyer. The financial implications of buying such a home without that knowledge were adjudged as significant enough to find the agent culpable.

The Estate Agents Act, also about to be amended by Government to allow for more participants in the housing market, insists that all offers to purchase are informed to the seller in writing in a timely manner. Many agents, it seems, do not confirm offers in writing and many even hold back from telling sellers of an offer until they have managed to confirm that they will use their own conveyancing services or mortgage facilities. Connells, one of the UK’s largest chains of estate agents, were chastised for this by the OFT because it is illegal.

Did you know that you are only allowed one for sale board post at each property?

Or that a for sale board must be no bigger than 0.8sq metres in size?

And if an estate agent or any of his contemporaries have an interest in a property being sold, they must state this within the property particulars?

Traditional estate agents often justify their high fees on the basis of professionalism.

You be the judge. have just been rated as the Best Online Estate Agent in the UK by