Agents & the law.
Answer, “pretty much, yes” but there are one or two rules (laws) that those involved in buying, selling and letting property must observe.
Firstly, the basics;- letting agents are NOT estate agents so laws for ‘agents’ needs to be inspected carefully. The 1979 Estate Agent Act defines who is an estate agent and in layman’s terms this means any selling or buying agent. Letting agents (in my experience are often better qualified), have more red tape to negotiate but they are not governed by law. Anyone, even a banned estate agent can set up as a letting agent.
If you are really wicked then you can be banned from practicing as an estate agent and the 110 or so who are can be found on this register;-
From 2nd April this year Trading Standards take the lead in dealing with complaints against estate and letting agents. Later this year the Property Mis-descriptions Act will be repealed and agents will be operate under the Consumer Protection from Unfair Trading Regulations 2008 & Business Protection from Misleading Marketing Regulations 2008. Guidance for agents on how they must comply can be found here
So, just what must an agent sign up to?
The snappily titled Consumer & Estate Agent Redress Act requires all agents (as defined by the 1979 Act) to sign up to a redress code. Confusingly there are two;-
Members of RICS and the National Approved Lettings Scheme have decided to sign up to the Surveyors Ombudsman Service (SoS) [no longer offering a service as of 2018] however most estate agents including members of the National Association of Estate Agents (NAEA) & at the Association of Residential Letting Agents (ARLA) are all signed up to The Property Ombudsman (TPO) or The Property Redress Scheme.
It is important to point out to consumers that these are redress schemes – for when things have gone wrong, when the stable is empty and the horse is in a lasagne. In addition, although the Ombudsman can fine an agent and he can expel an agent from his scheme but he cannot refuse to register them (that might be seen as a breach of their human rights – preventing them from earning a living! Mad, I know.)
Estate agents are legally obliged to sign up to the OFT’s Anti-Money Laundering register [now run by HMRC]. Letting agents at present are not required to.
All sales, letting and buying agents are required by law to sign up to the Information Commissioners Data Protection Register. Check your entry here.
In England and Wales, if you rent your home on an assured shorthold tenancy that started after 6 April 2007, your landlord must place your deposit in one of the following tenancy deposit protection (TDP) schemes:
- Deposit Protection Service
- Tenancy Deposit Scheme
- Capita Tenancy Deposit Protection
- Deposit Protection Service Insured
Other than the above estate (and letting) agency is one of the last truly capitalist businesses. There’s no law that says you must use an agent if you want to sell or let (or indeed buy) but 95% of people do. There are no set fees so firms compete for business on their merits and consumers can negotiate a rate they are prepared to pay. If you really don’t like agents then try doing it yourself!
One last word. The profession – if that is what it is, the trade bodies like RICS, NAEA, ARLA, TPO etc., and Government often gets confused about who ‘the consumer’ is. Agents are not brokers, they act for one party and their role is to do the best that they can for their client. It is the client who pays the fee. The buyer, the tenant, the applicant and the viewer are often described as being a consumer or customer but this isn’t strictly speaking the case. Landlords and vendors are an selling/letting agents client hence the little bit of Latin that most of us know – Caveat Emptor!