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33 Cards in this Set
- Front
- Back
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What is the Accommodation Agencies Act 1953?
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This act contains several possible pitfalls for Agents. Section 1 (a) and 1 (b) of the act makes it an offence to charge prospective tenants for either:
• registering them as prospective tenants • supplying addresses or details of property to let This is because these charges should be borne by the LL. |
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What are the penalties for not following this legislation?
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Section 1(5) of the Act indicates that anyone convicted under the Act faces:
• a fine on level 5 of the standard scale (max £5000) • imprisoned for up to three months • both a fine and imprisonment |
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Who would prosecute against this and where would this happen?
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Prosecution would take place in the magistrates court by trading standards officers (TSO's)
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What does the Acommodation Agencies Act 1953 Section 1(1)(c) state?
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This makes it an offence to advertise or list a property as being to let without the owners authority.
More often than not offences under this Act happen generally by mistake rather than on purpose. |
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Islington Borough Council v Winkworth [1998]
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Case relating to Offering a Property without Authority
◘ The occupier of an ex council property claimed to be the owner, the Agent tried to verify that the property had been sold to the occupier, but they couldnt get the information. It transpired that the property was still owned and rented by the Council and the occupier had no right to sublet. The council chose to prosecute and the Agent was fined heavily. |
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What can you do to verify that the person occupying the property has authority to let it?
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Double check everything. Especially if there is an indication that the property is an ex council property, or could belong to another social LL. You could quite cheaply made a search at the Land Registry to establish the registered owner.
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How does the Property Misdescriptions Act apply to Agents?
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Most of Lettings Agents activities are outside the scope of the Act however if Agents undertake estate agency work on behalf of a LL - like buying or selling property, creating premium leases you are subject to the provisons of the Act.
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What does the Property Misdescriptions Act 1991 make it an offence to do?
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• make a FALSE statement
• make a misleading statement The false or misleading statement must be false to a MATERIAL degree and made about one of the listed SPECIFIED matters |
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What does the term FALSE TO A MATERIAL DEGREE mean?
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Material degree is not defined in the legislation and will vary with the circumstances and perhaps the individual trading standards officers. This is intended to ensure that trivial errors in a description would not be an offence.
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How can a misleading statement be defined?
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A misleading statement is one from which a reasonable person would be likely to make a false inference from, even though the statement itself may not be false.
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What are SPECIFIED MATTERS?
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There are 33 covering just about every aspect of a property and the surroundings.
• location/address • aspect, view, outlook or environment • availability, nature, and proximity of services, facilities and amenities • accom measurements, fixtures and fittings • structure and condition • surveys treatments and repairs • tenure, lease length, council tax etc • price • planning permissions, covenants and easements • length of time prop on market |
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What are the timescales for the prosecution of offences by this Act?
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Prosecution has to take place within 3 years of the offence happening and within one year of the trading standards department knowing of the misdescription, which ever is the earlier.
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What can be used as a possible defence aginst prosecution?
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•Agents can use disclaimers and caveats attached to detail sheets. to be effective a DISCLAIMER must be bold, precise and compelling.
• DUE DILIGENCE could also be used - stating that the agent has taken all reasonable steps to ensure that the information given is accurate. • RELIANCE ON INFORMATION PROVIDED is the final defence, the agent can only rely on info provided if it was reasonable to do so - verification of information. |
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How does the Trade Descriptions Act affect Letting Agents?
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Similar to Property Misdescriptions:
• makes it a criminal offece to give a wrong description in the course of trade and covers the provision of services • offence to make a false or mis leading statement • offence to advertise the property for sale/let without authority - e.g erection of sale and let boards Th board is a statement, because it communicates a status to a potential buyer or tenant, in this case a false or misleading statement. |
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What does the Misrepresentation Act 1967 cover?
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This covers the civil offence in tort of negligent mis-statement. It is much more common for Letting Agents to commit negligent mis statements as they often provide statements to the tenants which will be relied upon.
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What types of Mis-statements can occur?
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• Fraudulent - made recklessly or knowing it to be untrue
• Negliegent - made without due care as to the accuracy of the statement • innocent - where the letting agent has no reason to believe the statement to be wrong |
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Why are letting agents LIKELY to be found guilty when negligent mis statements occur?
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The courts will normally assume that as an Agent you are an expert when dealing with a tenant, therefore iif you make a statement that a tenant relies upon, which induces them to take the tenancy, and the statement turns out to be wrong, you will most likely be found guilty!
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What is the aim of the Consumer Protection from Unfair Trading Regulations 2008?
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The regulations relate to consumer protection and control of advertising relating to products (defined as goods and services). They aim to make sure that businesses tell the truth about goods, services and prices and prohibit unfair commerical practices.
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What does the term 'commercial practice' relate to?
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This relates to all things doen (or not done) including advertising and marketing in relation to the business offering goods or a service to consumers.
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When would a business be guilty of an offence under these regulations?
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• If it knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence
AND • the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product • if it is a misleading action or omission • If it is aggressive or listed in schedule I of the regulations |
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What does the term 'professional diligence' mean?
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This relates to the standard of special skill and care that a business may reasonably be expected to exercise towards consumers, this includes honest market practice and the general principals of good faith in the business's field of activity.
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What does the term 'consumer' mean?
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Any individual who, in relation to a commercail practice, is acting for purposes which are outside the individuals business.
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What does 'materially distort the economic behaviour' mean?
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To appreciably impair the average consumers ability to make an informed decision and so cause the consumer to make a transactional decision they would otherwise not have done.
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What do the Consumer Protection from Unfair Trading Regulations 2008 mean for letting and management agents?
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It means that if you do not follow established best practice and do not follow the numerous pieces of legislation that relate to letting and managing property then you are likely to be commiting an offence under the regulations.
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What is a Misleading Action?
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A commercial practice is a misleading action if it contains false information and is therefore untruthful in relation to any matters about the product.
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What is a Misleading Omission?
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A commercial practice is a misleading omission if it omits or hides material information, or it provides information that is unclear, unintelligible or ambiguous or the the commercial practice fails to identlfy its commercail intent.
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What are Aggressive Commercial Practices?
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A commercial practice is aggressive if it impairs the consumer's freedom of choice through the use of harrassment, coercian and undue influence.
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What is contained in Schedule I of the Regulations?
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It lists 31 commercial practices that are considered unfair in all circumstances.
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How are the Regulations enforced?`
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The enforcement authorites for the Regulations are the OFT and TSO's.
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What do the TSO's have the power to do regarding the enforcement of the Regulations?
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• they have the power to make test purchases, this would mean they are able to pose as a LL or tenant and test the service offered by a residential letting and management agent.
• they have the power to after producing ID, enter premises at all reasonable hours and inspect files, copy files and sieze material and computers |
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What happens if an Agent tries to obstruct a TSO?
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• subject on conviction to a fine
• if false infor is given to a TSO that is also ab offence and can lead to a fine or imprisonment up to 2 years TSO's can enter with force if they obatin a warrent. |
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What are the time limits for prosecution?
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No proceedings can start after:
• three years from the date of the commission of the offence OR • one year from when the TSO is informed of the offence Whichever is the earlier. |
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What are the defences against prosecution?
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A due diligence defence may be proved by an agent where the offence was due to:
• a mistake • reliance on info provided by others • the act or default of another person • an accident OR • another cause beyond control AND • the agent took all reasonable precautions and exercised all due diligence to avoid the offence being committed by the agent or someone else under the agents control |
