Find out more about this case and why the agent was right to tell the truth.
A new buyer, aware from checking property portals that the property now being marketed by Agent B was marketed previously by Agent A, approached Agent A to ask why the property was removed from the market. Agent A disclosed the fact that at that time the property had subsidence.
The seller complained to Agent A, suggesting that as Agent A was no longer instructed they should not have divulged the information.
The Ombudsman was asked to consider if the Consumer Protection from Unfair Trading Regulations (the CPRs) apply once an agent is dis-instructed.
Regulation 2 of the CPRs defines a commercial practice as:
- ‘any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product’.
- This suggests that even if an agent was no longer marketing a property, they would still have a duty not to engage in an unfair commercial practice if the property is still on sale to consumers (even if marketed by another).
- When considering a request for information about a property previously marketed, the agent should consider if failure to disclose it would affect the consumer’s transactional decision.
The Ombudsman did not support the complaint. Under the CPRs the information should be divulged. An agent should not be criticised for telling the truth.
Agent A had complied with their obligations under the CPRs. Agent A was correct to release the information because the property is on sale to consumers, albeit with Agent B, and omitting that material information would likely affect the buyer’s transactional decision to proceed in purchasing the property.
It should be noted that Agent B could be committing an offence for omitting information relating to the subsidence unless they were unaware of it due to the act or default of the seller who has hidden the fact, in which case the seller commits the offence.