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Case Study: Second costly survey should have been avoided under CPRs

7th September 2017

A recent news article in the agency press highlighted yet another failure in the application of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs).

CPRs, the replacement for the now repealed Properties Misdescriptions Act 1991, require vendors and agents to reveal more information about property for sale and for let up front.

In the scenario, a surveyor had been instructed on two occasions to undertake a damp and timber survey on the same property. Although instructed by separate would-be purchasers 2 years apart, the vendors and agent remained unchanged.

On the face of it, three issues are clear

  • The agent and vendor were in full knowledge of the issue having been advised of the first result
  • The result of the first damp and timber survey had resulted in the fall through of the sale, which would constitute it as being material information.
  • Whether by design or by accident, there was a failure to update the particulars and reveal this information to future would be purchasers

This is a clear case of a misleading omission, satisfying the criteria laid out in the regulations:

A commercial practice is a misleading omission if…

  • the commercial practice omits material information,
  • the commercial practice hides material information,[1]

Under CPRs the second would-be purchaser was entitled to know about the result of the first survey, it being material information defined as follows;

“the information which the average consumer needs, according to the context, to take an informed transactional decision”[2]

CPRs make it clear that the liability for providing this information falls squarely on both the vendor and agent. Had the second would-be purchaser have known about the first survey, they may have made a different transactional decision and avoided a second costly investigation. Such an omission leaves both agent and vendor at risk of fines and compensation.

In mitigation it could be argued that the vendors could have undertaken remedial works recommended by the survey. Again, the stance under CPRs requires that such information be revealed, particularly considering the survey had caused the fall through of the first sale opportunity.

The practical way to deal with such issues is to be proactive. Industry commentators seem to have similar advice;

David Beaumont of Compliance Matters advises that there is no expectation on agents to undertake extensive and costly investigations; it is reasonable enough to speak with and document your activity with vendors, while propertymarks’s Primary Authority Advice points out

“… it is important to note, that once the agent is aware of the issue, they must update the sales particulars and other marketing material to correct any misleading information.”[3]

Landmark help you tick the right boxes with Compliance in a Box ensuring you ask the right questions and ascertain material information up front. Compliance in a Box also helps agents undertake and evidence Customer Due Diligence (CDD) and Enhanced Due Diligence (EDD) for money laundering compliance. No contracts, tie ins or ongoing fees, simple pay as you go compliance; register today to try Compliance in a Box in your agency.

 

Compliance in a Box from Landmark is the industry recognised AML and CPR compliance solution for Estate and Lettings Agents developed with industry stakeholders including the NAEA and adopted by Relocation Agent Network, The Guild of Property Professionals and Fine & Country. For more information contact Samantha Peacock (sam.peacock@landmark.co.uk) on 01524 220013 or sign up below.

Register your interest today

 

Verification

 

 

 

 

 

[1] http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/6

[2] http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/6

[3] http://www.propertymark.co.uk/media/1043580/various-advice-for-a-selection-of-potential-cpr-issues-additional-scenarios.pdf

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