Homes By Net

Basic Principles

The Act, which controls property developers as well as estate agents, creates criminal offences for misdescribing property but does not alter the contractual position between vendor, buyer and agent.

You will not have to refer to any item in the specified matters list, but if you do, your descriptions must be truthful. Things you say about the property will be covered as well as the printed word, photos, plans etc.

The Act will not stop you acting in vendors’ interests by presenting property in the best light provided what you say does not mislead.

Specified Matters

• Location or address.
• Aspect, view, outlook or environment.
• Availability and nature of services, facilities or amenities.
• Proximity to any services, places, facilities or amenities.
• Accommodation, measurements or sizes.
• Fixtures and fittings.
• Physical or structural characteristics, form of construction or condition.
• Fitness for any purpose or strength of any buildings or other structures on land or of land itself.
• Treatments, processes, repairs or improvements or the effects thereof.
• Conformity or compliance with any scheme, standard, test or regulations or the existence of any guarantee.
• Survey, inspection, investigation, valuation or appraisal by any person or the results thereof.
• The grant or giving of any award or prize for design or construction.
• History, including the age, ownership or use of land or any building or fixture and the date of any alterations thereto.
• Person by whom any building, (or part of any building), fixture or component was designed, constructed, built, produced, treated, processed, repaired, reconditioned or tested.
• The length of time during which land has been available for sale either generally or by or through a particular person.
• Price (other than the price at which accommodation or facilities are available and are to be provided by means of the creation or disposal of an interest in land in the circumstances specified in section 23(l)(a) and (b) of the Consumer Protection Act 1987(a) or Article 16(1 )(a) and (b) of the Consumer Protection (NI) Order 1987(b) (which relate to the creation or disposal of certain interests in new dwellings)) and previous price.
• Tenure or estate.
• Length of any lease or of the unexpired term of any lease and the terms and conditions of a lease (and, in relation to land in Northern Ireland, any fee farm grant creating the relation of landlord and tenant shall be treated as a lease).
• Amount of any ground-rent, rent or premium and frequency of any review.
• Amount of any rent-charge.
• Where all or any part of any land is let to a tenant or is subject to a licence, particulars of the tenancy or licence, including any rent, premium or other payment due and frequency of any review.
• Amount of any service or maintenance charge or liability for common repairs.
• Council tax payable in respect of a dwelling within the meaning of section 3, or in Scotland section 72, of the Local Government Finance Act 1992 or the basis or any part of the basis on which that tax is calculated.
• Rates payable in respect of a non-domestic hereditament within the meaning of section 64 of the Local Government Finance Act 1988 or, in Scotland, in respect of lands and heritages shown on a valuation roll or the basis or any part of the basis on which those rates are calculated.
• Rates payable in respect of a hereditament within the meaning of the Rates (Northern Ireland) Order 1977 or the basis or any part of the basis on which those rates are calculated.
• Existence or nature of any planning permission or proposals for development, construction or change of use.
• In relation to land in England and Wales, the passing or rejection of any plans of proposed building work in accordance with section 16 of the Building Act 1984 and the giving of any completion certificate in accordance with regulation 15 of the Building Regulations 1991.
• In relation to land in Scotland, the granting of a warrant under section 6 of the Building (Scotland) Act 1959 or the granting of a certificate of completion under section 9 of that Act
• In relation to land in Northern lreland, the passing or rejection of any plans of proposed building work in accordance with Article 13 of the Building Regulations (Northern Ireland) Order 1979 and the giving of any completion certificate in accordance with building regulations made under that Order.
• Application of any statutory provision which restricts the use of land or which requires it to be preserved or maintained in a specified manner.
• Existence or nature of any restrictive covenants, or of any restrictions on resale, restrictions on use, or pre-emption rights and, in relation to land in Scotland, (in addition to the matters mentioned previously in this paragraph) the existence or nature of any reservations or real conditions.
• Easements, servitudes or wayleaves.
• Existence and extent of any public or private right of way.

Practical things you can do:

• Get vendors to sign to say that particulars are correct before you market a property. Give them a chance to amend anything that is wrong. This won’t protect you if you print a misdescription you could have reasonably checked out for yourself, but it will minimise the risk.
• Think about all the descriptive phrases you use and ask yourself what they will mean to an average purchaser.
• Make it somebody’s task to proof-read particulars and sign to say they have done so.
• When you get queries about a property, get the person who prepared the details to answer the questions and make a record of what is said on file. You won’t be held responsible for what vendors tell purchasers in your absence unless you knew what they were going to say, but remember that purchasers might forget who told them what.
• Check everything you can. Ask to see receipts and guarantees for work carried out. Ring up to check council tax bands. Ask for evidence of sales and turnover if you want to describe the success of a business property.
• Set up a system to ensure that your staff are adequately trained and that their work is regularly checked. You should consider random double-checking of property details against the property itself during this auditing process. Any deficiencies can then be dealt with by issuing corrected particulars and retraining where necessary.

General Descriptions

Terms such as ‘immaculate condition’ or ‘recently decorated’ are not banned by the Act, but these terms will be taken to refer to the entire property. If there are any particularly attractive features, your client will obviously expect you to use them as selling points but they should not be emphasised to the exclusion of bad features if the overall result is a misleading description.

The Act does not require you to disclose defects such as a leaky roof even if you have seen a survey, but your description as a whole must not give the impression that the property does not have that defect.

Location

Use the correct postal address. If a house is in one county geographically, but its postal address is in a neighbouring county, you should include both with equal prominence.

Comments concerning the proximity of properties to local services should be used with care. Terms such as ‘close’ or ‘easy access’ are best avoided, as are estimates of journey times. A statement of the actual distance is more accurate.

Environment

If a house has open fields on three sides and an abattoir or night-club on the fourth, the safest option is not to refer to the outlook. If you said that it was surrounded by views across open fields, you would mislead unless you made equal reference to the view on the fourth side. If you use a photograph of the back or the side of a property on its own, you should make that fact clear.

Photographs

A photograph can be misleading. Do not doctor photos or use extreme lenses. If you take a photo of the view from a bedroom window, but cannot include the rubbish dump, don’t say ‘panoramic views’ or ‘unspoilt countryside’.

Measurements

You should try to make measurements as accurately as you can. We suggest an error margin for rooms in domestic properties of eight centimetres either way is reasonable. Sonic measures are not specifically banned, but, as with any measuring instruments, they should be calibrated every twelve months and used with great care. Our advice is that physical measures are better.

Be careful with gardens, where large length or area measurements can be involved.

Pricing and ‘New Instructions’

You may advertise a property as a ‘new instruction’ to your agency for only a short period (we would suggest a month) after you have been asked to become the vendors’ agent. This applies even if the property has been advertised previously with another agency.

Newly built and newly converted properties are covered by the pricing controls in the Consumer Protection Act 1987. Such a property should only be described as ‘reduced’ if it has been on sale at the higher price for twenty eight consecutive days in the last six months and you state what that higher price was.

Tenures

You should be able to provide adequate evidence to show that you have tried to obtain information on the length of any lease or freehold of the property. Alternatively, say that this aspect has not been checked.

Re-checking

If you have a property that has been under your instructions for a long period of time, it is advisable to check to see if the details are still correct. If a new road is planned which wasn’t before, or if the local train operator withdraws a train service you had referred to, then you should modify your details and adverts.

Disclaimers

General disclaimers in small print telling buyers not to rely on details won’t be effective in preventing offences. However, there are some cases where a specific qualifying description, may be acceptable. For example, if the vendor claims without documentary evidence that the property was treated for dry rot, you may only mention this if you say as part of that description that you have not seen any documents to verify this. A similar qualification might be applied to the working order of household appliances or central heating or claims about the history of a property. The crucial fact in assessing whether a qualified description is valid is the ease with which you could have reasonably checked it.

As well as the Property Misdescriptions Act, Trading Standards enforces a range of consumer and trading legislation that might affect you. Examples include the Estate Agents Act and the Consumer Credit Act.

Guidance on the Act can be found at www.dti.gov.uk/ccp/topics1/guide/property_description.htm

Estate Agents Act

The Estate Agents Act 1979 requires:

• That you make sure you offer clear written information to your clients including:
  • details of how much they will be charged and when payments are due.
  • details of any charges that are additional to your fees, this could include any charge you will make if the property is taken off the market without a sale. If you cannot give them the exact charges you must tell them how the cost will be worked out.
  • if you make an additional charge for things such as a ‘for sale’ board or advertising you must state the amounts you charge or give an estimate of them.
  • you must explain clearly what certain technical phrases mean. You will need to consult the Act itself for this information.
• You must also tell your clients in writing:
  • of all offers that you receive unless the client informs you in writing that they are not interested in offers below a certain amount.
  • if you or someone connected with you, such as a relative or a business partner, wants to buy the property.
  • if you or someone connected with you owns or has an interest in the property.
• If you offer other services, such as organising surveys, valuations, arranging mortgages or life insurance, you must:
  • tell your clients in writing about any service that you, or a person connected with you, might offer.
  • give details of the type of service offered and tell your clients if you make a commission.
• You must not:
  • discriminate against a prospective purchaser who does not want other services that you offer.
  • misrepresent the details or existence of any offer or the existence or status of any purchaser.

Please Note

This is not an authoritative interpretation of the law and is intended only for guidance. For further information please contact your local Consumer Protection or Trading Standards office.