The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) require agents to take a different approach to disclosure of information about properties they are marketing from what is considered acceptable practice under the Property Misdescriptions Act 1991.
The new regime requires full disclosure of material information at the earliest opportunity to enable the consumer to make an informed transactional decision, such as whether to view, make an offer and/or accept other services from an agent. It is no longer acceptable to disclose particular aspects of a property (some of which might be perceived as negative) only at the point of being asked. Consumers will be entitled to rely on information given to them by an agent and whilst they should always take steps to ensure that what they are intending to purchase is suitable for their needs, CPRs imply that information given, or indeed not given to them, will be seen as a strong influence in their decision making process.
CPRs emphasise that it is the ‘consumer’ who must be treated fairly, so although the agent is instructed by the seller or the landlord there is a clear responsibility also to be fair and even-handed with the buyer or tenant – this obligation already exists under Paragraphs 1d and 10b of the TPO Sales Code of Practice and 1d and 14a of the TPO Lettings Code of Practice.
Agents must also ensure that information they become aware of during the transaction which might have a bearing on the decision of the consumer, is disclosed when it becomes known. When appraising a property for marketing purposes an agent should be alert to anything which puts him ’on notice’ that further investigation of a particular aspect is needed so that he can be satisfied that what the seller is advising does represent the true position.
OFT guidance makes clear that in the most straightforward sales the material information that would need to be given to potential buyers may be quite basic and might consist of (for example) asking price, location, number and size of rooms and the tenure of the property. However, that guidance then goes on to say that the material information that would need to be given will be dependent on the circumstances of each sale. This obligation currently exists under Paragraphs 5h–5k of the TPO Sales Code of Practice and Pparagraphs 4f and 4g of the TPO Lettings Code of Practice.
For sellers and landlords, the agent will need to fully disclose what services are being offered, fees and charges, terms of business and the duration of the agreement. These obligations currently exist under Paragraphs 3a–3v of the TPO Sales Code of Practice and Paragraphs 3a–3q of the TPO Lettings Code of Practice.