Property Tips by Chartered Surveyor Ian Rock FRICS – from the Haynes House Manual series
BUYING PROPERTY
How Do You Know If Your Estate Agent Is Playing Tricks?
It’s important to note that the vast majority of estate agents play strictly by the rules. They have a challenging job to do and most endeavour to provide a professional service.
The trouble is, not all agents are paragons of virtue and occasionally reports come to light of underhand activities and illegal practices.
All professions have the occasional ‘rotten apple’ amongst their ranks and agents are no exception. But scams and tricks in the property world can be quite subtle and hard to detect and prove.
The following are some of the best known examples of skullduggery :-
Price Fixing
Stories occasionally appear in the press about local estate agents getting together and illegally colluding to fix a minimum fee.
In this case featured in The Guardian fees were fixed over many years at above 1.8% + vat, when agents in other areas were charging fees of under 1%.
Bumping up the purchase price
In this example the agent tells buyers that there’s another (non-existent) offer on the table for the property they want to buy, in an attempt to get them to make a higher offer.
Lying about the property
Here the agent assures the buyers that planning permission for the extension or swimming pool (shown in the brochure) was granted. But if this information turns out to be wrong, once you’ve exchanged contracts it may be too late unless it’s been put in writing.
It’s up to you and your solicitor to verify any such claims and spot any non-compliance. Don’t take the agent’s word because what they tell you verbally is largely irrelevant, as it’s your word against theirs.
By all means ask for written proof, but watch out for caveats like ‘to the best of my knowledge’.
Not passing on all offers
Agents have a duty to pass on all offers to their client.
If you suspect this isn’t happening one solution is to approach the seller directly, putting a note through the door saying;
‘I was just looking at your house again and really love it. I do hope you’re interested in our offer. We look forward to hearing from [their agent].’
That way the agent is boxed in, as you’re not trying to cut them out, just being keen. Put your phone number on the note, just in case.
Encouraging gazumping
Not withdrawing the property from the market when your offer has already been accepted, thereby encouraging ‘gazumping’ – a higher offer from a rival buyer.
Binning bids
Several buyers want the same property and it goes to ‘sealed bids’. The agent bins the ones that are higher than the bid of his friend. An agent working for a well-known national chain recently admitted that after opening all the buyers’ offers he illegally added his own extra bid, a measly £5 higher, thus becoming the successful and highest bidder.
Rival offers
Despite the fact that as a buyer you’re not actually their client, estate agents still have a legal duty to treat you ‘fairly’, under the terms of the Estate Agents Act 1979.
But what if you suspect that something fishy’s going on?
Suppose you make an offer and the agent claims to have already received a higher offer from a cash buyer?
How do you know this isn’t simply a ruse to get you to part with more money by increasing your offer?
According to the Office of Fair Trading (OFT), agents must not state that they have already received offers or claim that other potential buyers are waiting in the wings unless true. Nor must they invent rival bids.
The OFT suggests that people should demand to see evidence if they have suspicions. Which is all very well in theory, but can be difficult in practice, particularly if you want to keep on good terms with the agent.
Agents are under no legal duty to reveal details of other offers they have (genuinely) received on a property, which as a buyer can be a trifle niggling.
Although it would be an unusual request, an estate agent can, if they wish, demand a deposit from a buyer. However, all clients’ money must be held in separate client bank accounts, and covered by adequate insurance, as set out in the Estate Agents (Accounts) Regulations. Receipts for deposits must be provided.
Agents must also not discriminate against buyers. So-called ‘preferential listing’ is not permitted. This is when potential buyers are told they will be given priority or preferential service if they buy financial services, such as insurance or a mortgage, offered by the estate agent.
Agents have a legal duty to notify their client about all offers received, even when the property is already under offer.
Estate Agent law
As well as the Estate Agents Act 1979, agents must comply with the more recent Consumer Protection Regulations (CPRs) and Business Protection Regulations (BPRs). These cover similar ground to the now repealed Property Misdescriptions Act.
The bottom line is that agents need to treat consumers, business customers and competitors fairly. The legislation protects a wide range of people – including viewers, buyers and sellers, both actual or prospective.
CPRs – Consumer Protection Regulations
(Aka: The Consumer Protection from Unfair Trading Regulations 2008).
The CPRs prohibit agents from engaging in unfair practices such as:-
* ‘Misleading actions’ – giving false or misleading information / statements to consumers
* ‘Misleading omissions’ – hiding or failing to provide material information to consumers
* ‘Aggressive practices’ – exerting undue pressure on consumers (‘aggressive practices’)
* Not acting with the standard of care and skill in accordance with honest market practice
* Engaging in ‘banned practices’ (eg falsely claiming to be a member of a professional body or a redress scheme).
This goes further than the old Property Misdescriptions Act with an additional duty for agents to provide ‘material information’ that the average consumer needs to make informed decisions.
For example before viewing a property you should be given relevant information such as asking price, location, number and size of rooms, and whether it’s freehold or leasehold.
Where agents are aware of other material facts they have a legal duty not to hide or suppress them – eg the length of the lease and charges payable, any major structural defect or uncertainties about owbnership, and lack of connection to any mains services.
BPRs – Business Protection Regulations
(Aka: The Business Protection from Misleading Marketing Regulations 2008)
The BPRs prohibit agents from engaging in misleading marketing activities that affect other businesses. This covers advertising to attract new clients as well as advertising property for sale. It also prohibits agents from making misleading comparisons with competitor firms.
Penalties
Local consumer bodies such as Trading Standards Officers have a duty to enforce these regulations. Non-compliance means agents can face civil and/or criminal legal action.
If a business is convicted of committing a criminal offence under the CPRs or BPRs the penalties range from a small fine (up to £5,000) to extreme cases with unlimited fines or imprisonment. More likely the offending agent will be required to pay compensation or make an apology.
We would always recommend using RICS certified surveyors in every instance – don’t get caught out, get instant quotes for RICS surveyors here.
Ian Rock’s Rightsurvey property tips are taken from the Haynes House Manual series.
