Estate agents are regulated under the Estate Agents Act 1979 (and later amendments). This Act requires all estate agents doing residential property sales work to be a member of a government-approved 'estate agent redress scheme', such as the. Many of these schemes follow codes of practice. You can refer to these codes if you have a complaint against an estate agent.
If an estate agent provides letting and property management services, they also must be registered with a government-approved property redress scheme for those services.
The Estate Agents Public Register has details of estate agents who are currently banned from engaging in estate agency work or who have received a formal warning under the Estate Agents Act 1979. In April 2014, thetook over the responsibility for the Act from the Office of Fair Trading.
Estate agents have certain obligations to you, such as telling you when an offer is made to buy your property. Some of these obligations are described below.
The estate agent must explain the meaning and effect of the terms discussed below if they're used in the contract. The same applies to similar terms using different words.
You should also be aware of any terms that impose a fee for advertising, marketing or other services provided by the estate agent whether or not a sale occurs.
Before you enter into a contract to sell your home and become liable to pay an estate agent's fee, the agent is legally obliged to give you the following written information:
If the estate agent doesn't give you this information then they won't be able to claim payment of their fees until they've got a court order to receive the payment.
The court can grant the order for the full amount or a reduced amount, or can refuse to give the order. The court will consider how much the estate agent is to blame for failing to comply with the law and for any damage caused to you as a result.
Information to be included in the contract
An important term in the contract relates to how much commission the estate agent will get if they sell your property. Consider negotiating this term to a lower fee - market forces, like the number of houses on the market and the general state of the property market, will influence the commission fee.
Other important terms can be included in the contract. You must be aware of them, including whether the contract relates to:
You should be cautious if the following terms are used in the contract:
The estate agent must tell you of any fee or payment that they get from third parties relating to the sale. In other words, they mustn't make a secret profit. This may include, for example, receiving a commission from someone they've recommended to you. The estate agent must get your express consent for this, but they're not obliged to reveal how much they'll be paid. If they fail to get your consent, you may be able to recover the payment that they've received and any commission you've paid them. This applies even if the agent hasn't acted improperly or you haven't suffered any loss yourself.
If the estate agent has any personal interest in your sale, they must tell you this promptly in writing. The same applies to a connected person or someone known to the estate agent, like an employee, friend or acquaintance).
These interests may include buying your property, or selling their property to you.
Estate agents can hold deposits on your behalf and are subject to strict rules about how they're handled.
There are 2 circumstances when a deposit might need to be paid to an estate agent:
Estate agents holding a deposit must:
Estate agents must provide their services with reasonable care and skill, within a reasonable time and at a reasonable cost. The 'care and skill' that you can expect would be the same that can be expected from a reasonably competent estate agent. Although not all of the terms in this Act are covered in Scotland, Scottish common law offers similar protection.
Consumer contracts can contain terms that restrict or exclude a supplier's liability for breach of contract but only if they can show that the term is reasonable. The courts decide whether a term is reasonable. If a term is challenged, it's for the supplier to prove to the court that it's reasonable.
Suppliers often use standard terms that aren't negotiated with a consumer. A standard term is unfair if it creates a significant imbalance between the parties' rights under the contract, to the detriment of a consumer. All the terms of the contract must be in plain and clear language, otherwise they're open to being challenged as unfair.
These regulations state that an estate agent must not make statements that are false or misleading about land or property offered for sale. There is no obligation to disclose information (good or bad), but the information that is provided must be accurate and not misleading. Although it's not possible to regulate the description of the decoration in a property, there are objective matters such as the number of bedrooms, for example, that must not be misleading. Breaches can be a criminal offence. If a misstatement is due to the carelessness or negligence of the estate agent then it may be possible to sue them, but in practice most estate agents will disclaim any liability in the terms of their contract.
You might have cause to complain against an estate agent for:
If you have a complaint against an estate agent, you should first try to resolve the problem by talking to the agent or the manager of the office.
If the matter isn't resolved, write to the head office or the person who deals with in-house complaints, following the estate agent's complaints procedure. Ask for details of their internal complaints procedure if these haven't already been given.
Your letter should set out full details of your complaint including any relevant background facts, how it happened, what you've done to resolve the problem and what you want the estate agent to do. You should set a reasonable deadline for the matter to be resolved.
If you're not happy with the outcome of your complaint, and if you used the estate agent for the buying or selling of a residential (as opposed to a commercial) property, you should raise a complaint with the 'estate agent redress scheme' that the estate agent has joined.
If your complaint doesn't involve the buying or selling of a residential property, but involves the letting or managing of a property, consider raising a complaint with a government-approved property redress scheme. These schemes include the, the or the . If you're still unhappy or if your complaint involves the buying or selling of a commercial property, consider contacting the . You can also complain to your local or any professional body that the estate agent has joined (such as the ).
If 8 weeks have passed since you raised the complaint and you're still not happy, you can refer your complaint to an estate agent redress scheme, namely the, the or the . These schemes deal with all complaints about the buying and selling of residential property.
Estate agents must join an approved redress scheme or risk penalties, such as a fine or a ban from carrying out estate agency work.
Before making a complaint to a scheme provider, you should check which scheme the estate agent has joined.