Vendors who do their own viewings should be put on their guard that they do not mislead potential purchasers.
If they do, they could face action by Trading Standards, or private litigation.
Under Consumer Protection Regulations (CPRs), the agent may also be liable if it turned out that the property marketing information was also misleading.
The same advice applies to letting agents whose landlords conduct viewings.
Eye wanted to know if, under CPRs, the agent could be culpable if the owner of the property were to lie or omit – whether accidentally or deliberately – to mention something about the property while conducting a viewing.
According to the Property Ombudsman, the answer is that the vendor or landlord conducting the viewings is responsible – but the agent could share liability if the property particulars are misleading.
We also wondered about the role of online agents, given that so many are remote operators and cut prices on the basis that sellers and landlords do their own viewings.
Would owner and agent share legal responsibility if something about the property is not disclosed during a viewing?
If the buyer or tenant goes ahead with a transaction based on false or with-held information, would they have a case against the property owner, the agent or both? And what about redress?
Eye asked TPO for an opinion.
This is what Christopher Hamer told us: “Under the CPRs it is the agent’s responsibility to fully and truthfully describe the property.
“They do that based on the information given to them by the seller and their own assessment.
“If the seller does not tell the agent about something or misdescribes something knowingly or accidentally, the agent can claim a defence under Regulation 16 to any action taken against him/her PROVIDED that agent had no reason to doubt what they were being told or that they were not on notice that things were not quite what they seemed.
“Under that same Regulation the action could then be taken against the seller, such action being by Trading Standards or perhaps by civil action by the buyer.
“None of the redress schemes can consider disputes between buyer and seller, so court action is probably the only route for resolution.
“As regards vendor-conducted viewings, the agent should make clear at the outset whether or not that is the agreed approach, but in any case, the property description should be settled at that point in accordance with what I have said above and in accordance with the CPRs.
“Whether or not the agent chooses to give some general advice about how to conduct the viewings, as the agent has given full disclosure of property aspects, anything that the seller does or does not say at the viewing is his or her responsibility.
“Online agents could be conducting a full estate agency function or simply be passive intermediaries.
“Depending on the role they take, the same issues can apply, although for passives, even though they look and smell like an estate agent, the law allows them not to be so strictly liable under the CPRs.
Comments (2)
This is one of the points I raised last week on a similar article Ros sent out, its not just viewings but the whole area of estate agency. On-line agents are doomed to die off as soon a soon one of them is taken to court. OFT may not be physically active in monitoring in your area but once someone comes to their attention …… prohibition orders come to mind and they already have fixed penalty in use. There are some laws regarding "complicity" and "aiding an abetting" and I do wonder how the due diligent rule can be complied with by on-line portals who are acting as estate agents. The list is so long I can only believe most on-liners haven't a clue as to what they have got themselves into. Just wait till Customs & Excise start an action ……… lions with huge teeth. Being passive is not an option with the Consumer Protection Regulations and as some have already found out, the fines are horrendous.
The joke is that Trading Standards have inherited some pretty heavy legislation and only have £178k in the pot to regulate UK agents. Its a bit like building London bridge with £150 and for the operatve to ensure its safe passage.
There are a few outstanding Trading Standards officers and equally some pretty poor ones when it comes to property regulation.
CPR's and BPR's are there to govern ''property professionals'' be it agents or a landlord with 20-30 properties – they are not aimed at Joe Public.
Joe Public can be sued though if found to be in breach of contract and to have lied.
It's good argument for Joe Public to go to reputable agents who go that extra mile over budget marketeers who are looking to take their next budget fee and do little more.