Code Of Practice For Residential Estate Agents

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Code of Practice forResidential Estate Agents(England, Wales and Northern Ireland)Effective from 1 October 2015This Code of Practice is mandatory for all TPO Members who are entitled to display the above logo andwho offer estate agency services. Copies of this Code of Practice and the TPO Consumer Guide should bemade available in all your offices. You should prominently display the logo in the window of all your offices.Contents:1.General Provisions7.Marketing and Advertising14. In-house Complaints Handling2.Duty of Care and Conflict of Interest8.Viewing and Access to Premises15. Referrals to the Ombudsman3.Advertising for New Business(Canvassing)9.Offers16. Compliance Monitoring/Compliance Surveys4.Market Appraisal5.Instructions, Terms of Business,Commission and Termination6.Energy Performance Certificates10. Financial Evaluation17. Non-Compliance with the Code11. Deposits12. Between Acceptanceand Exchange of Contracts18. Glossary of Terms13. Exchange and Completion1. General Provisions1dYou must ensure that all staff are fully conversant with allaspects of this Code of Practice and their legalresponsibilities. Such staff must observe this Code and theirlegal responsibilities in all their dealings with consumers.Staff must have a good working knowledge of the law ofagency, the law of contract, and all relevant estate agencylegislation; and familiarity with the basic conveyancing andmortgage application processes.1eYou should provide a service to both buyers and sellersconsistent with fairness, integrity and best practice; and youshould not seek business by methods that are oppressive orinvolve dishonesty, deceit or misrepresentation. You mustavoid any course of action that can be construed as aggressivebehaviour (*) or harassment (*).1fYou must treat consumers equally regardless of their race,religion or belief, sex, sexual orientation, gender reassignmentstatus, disability or nationality. Unlawful discriminationincludes giving less favourable treatment because someoneis perceived to have one of these personal characteristics orbecause they are associated with a person with such acharacteristic.1gYou should take special care when dealing with consumerswho might be disadvantaged because of their age, infirmity,lack of knowledge, lack of linguistic ability, economiccircumstances or bereavement.Applicability1aThis Code applies to estate agency services (*) in the UnitedKingdom (except Scotland) provided by a person ororganisation who has agreed or is required to comply with itfor the marketing of residential property (*). Note that lettingand buying agents in the United Kingdom and letting,management and sales agents operating in Scotland arecovered by separate Codes of Practice.General Obligations1b1cYou (*) must comply with this Code of Practice. You mustcomply with all laws relating to residential estate agency andin particular the Estate Agents Act 1979, the Consumers,Estate Agents and Redress Act 2007, Data Protection Act 1998,Unfair Terms in Consumer Contracts Regulations 1999,Competition Act 1998, the Consumer Protection from UnfairTrading Regulations 2008 (CPRs), Business Protection fromMisleading Marketing Regulations 2008 (BPRs), ConsumerContracts (Information, Cancellation and Additional Charges)Regulations 2013, Consumer Rights Act 2015, Energy Act 2011(Green Deal) and all other current and relevant primary orsecondary legislation.You must register with the appropriate authority in accordancewith the Money Laundering Regulations 2007.The Property Ombudsman Milford House, 43-55 Milford Street, Salisbury, Wiltshire SP1 2BP@TPOmbConsumer EnquiriesMembership Enquiriesfacebook.com/PropertyOmbudsmanTel: 01722 333 306Tel: 01722 335 458Fax: 01722 332 296Email: admin@tpos.co.ukWebsite: www.tpos.co.ukRegistered Office: The Property Ombudsman Limited, Milford House, 43-55 Milford Street, Salisbury, Wiltshire SP1 2BP. Registered in England: 3339975.TPOE27-3All references to the masculine include the feminine, and to the singular include the plural. Terms marked (*) - the first time they appearare defined in a Glossary of Terms at Section 18.

Code of Practice for Residential Estate Agents – page 2 of 81hYou must not release or misuse confidential information givenby your client (*) during the process of selling or buying aproperty (*) without your client’s permission unless legallyrequired to do so.2gIf you or an employee or an associate is intending to buy aproperty which your firm is instructed to sell, that personmust take no further direct part in the sale of that property onbehalf of your business1iYou must keep clear and full written (*) records (*) of alltransactions for a period of 6 years and produce them whenrequired by the Ombudsman.2h1jAs a TPO Member (*) you must not take, or be involved in anyaction which would bring the scheme into disrepute.If you are selling a property that is owned by you, an employeeor an associate (or an associate of an employee) or in whichyou, an employee (or an associate of an employee) has aninterest, you must by law, before negotiations begin,immediately make this known, in writing.Promoting Your Business3. Advertising for New Business (Canvassing)1kIn accordance with the Alternative Dispute Resolution forConsumer Disputes (Competent Authorities and Information)Regulations 2015, you must include TPO’s name and websiteaddress on your website, within your terms of business andwithin any other sales or service contract you agree with aconsumer.3aYou must not use unfair methods when seeking new propertiesfor sale by unsolicited approaches. Advertising material mustbe truthful, not misleading and fully explain who the messageis from, its purposes and how the seller’s interest can befollowed up.3b1lIn addition, you must use and display such material promotingthe Code of Practice as provided by TPO. You mustprominently display the TPO logo on your website, the windowof all offices, and on relevant documentation such asmarketing literature, property advertisements, and on yourletterheads.In your canvassing material, if you seek to use a property youhave recently sold and where completion has occurred, youmust obtain the new owner’s prior permission.3cWhen you advertise for new business your fees should beshown inclusive of VAT alongside a statement confirming thatVAT is included.3dIf as a result of an unsolicited approach a seller is interestedin using your services, you must draw to their attention, andexplain before they are committed to another contract, thepotential of paying fees to more than one agent where anotheragent has been previously instructed to sell their property.3eYou must take decisions on the content of your advertisementsindependent of your competitors, including whether to advertiseyour fees, charges or any additional costs, or any special offers,discounts or other value offering.3fYou must act promptly if a seller or property owner asks youto stop canvassing them.1m You must have available, free of charge, copies of this Code ofPractice to give to consumers on request. You must alsoprominently display copies of the Consumer Guide leaflet inall your offices.2. Duty of Care and Conflict of Interest2a2bYou must treat all those involved in the proposed sale orpurchase including sellers, potential sellers, buyers andpotential buyers fairly and with courtesy.You must avoid any conflict of interest. You must disclose atthe earliest opportunity in writing (*) to your client or anyrelevant third party any existing conflict of interest, or anycircumstances which might give rise to a conflict of interest.2cIf you intend to offer potential buyers surveying, financial,investment, insurance, conveyancing or other services orthose of an associate (*) or connected person (*), you must bylaw advise your clients either separately in writing or withinyour Terms of Business.2dCustomer (*) requirements are key and this applies to thepotential viewer/buyer as well as the seller. You shouldcomplete a consumer fact find to ensure that any specificrequirements of the seller or potential buyer may be takeninto consideration.2e2fYou must by law tell the seller in writing or in thememorandum of sale, as soon as reasonably possible after youfind out that a prospective buyer, who has made an offer, hasapplied to use your surveying, financial, investment, insurance,conveyancing or other services or those of an associate orconnected person in connection with that purchase.If your firm is instructed to sell a property and you, anemployee or an associate (or an associate of the employee ofyour firm) is intending to buy it you must by law, beforenegotiations begin, give all the relevant facts, in writing, to theseller; and as soon as possible to his legal representative.4. Market Appraisal4aWhen you give advice to someone selling their property, anyfigure you advise, either as a recommended asking price or asa possible selling price must be given in good faith and mustreflect available information about the property and currentmarket conditions and must be supported by comparableevidence. You must never deliberately misrepresent the marketvalue of a property.4bAny evidence relating to comparables of similar properties ina similar location must be retained on file for future reference.4cYou must keep your marketing strategy under regular reviewwith your client.5. Instructions, Terms of Business, Commissionand TerminationInstruction5aYou must, at the point of instruction, inform your client inwriting that you are a Member of the TPO scheme, andsubscribe to this Code of Practice.5bYou must not directly or indirectly harass (*) any person inorder to gain instructions, nor must you repeatedly try to gaininstructions in a way likely to cause offence.

Code of Practice for Residential Estate Agents – page 3 of 85cYou must not instruct other agencies to assist you in selling aproperty without the seller’s permission. If the seller givespermission, as the instructing agent, you are liable at law forthe actions of the sub-instructed agent and will be heldresponsible for any failures to comply with this Code ofPractice by that sub-instructed agent even if that sub-agentis not a TPO Member.5dNotwithstanding 5c above if you are instructed as a sub-agentor share listings via a website, you must continue to act inaccordance with all relevant provisions of this Code of Practice.5eYou must give your client written confirmation of hisinstruction for you to act in the buying or selling of propertyon his behalf. You must by law give the client written detailsof your Terms of Business including your fees and chargesbefore he is committed or has any liability towards you.Fair Contracts5fYour Terms of Business and your contract must be consistentwith the provisions of this Code of Practice and comply withthe Unfair Terms in Consumer Contracts Regulations 1999.5gYour Terms of Business should be written in plain andintelligible language. In particular you must use in your Termsof Business the specific definitions in the Estate Agents(Provision of Information) Regulations 1991. You must takeparticular care for example in defining and distinguishingbetween ‘sole agency’ and ‘sole selling rights’; and indescribing a ‘ready, willing and able’ contract. You must usethe relevant definitions in full, and clearly explain theimplications of the terms to your client.Fees and Charges5hAll fees and additional costs must be included in your Termsof Business. They must be fully explained, clearly andunambiguously stated in writing before the seller is committedto the contract.5iWhere the fee is a percentage you should clearly statewhether VAT is chargeable and must express it as an actualamount plus VAT. The example amount should be based onthe asking price. However, you must make it clear that, shouldthe selling price be higher or lower than the asking price, yourcommission fee will be correspondingly higher or lower.5jWhere you charge a fixed fee you should state the actualamount payable including VAT in the contract and ensure thatthe seller understands that the fee will not vary whatever thesale price.5kExcept for any previously agreed additional costs, commissionfees will become due on exchange of contracts.5lIn the circumstances where a buyer may become liable foryour fees, this liability must be communicated at the earliestopportunity such that in all forms of media, the propertyasking price is accompanied by a statement that ‘buyer’s feesapply’ and that websites allow for a click-through to aninformation pack and FAQs. Appropriate arrangements shouldbe made to provide the same information where nonelectronic access is present. The information pack shouldhave ‘key features’ of the approach as the first page andinclude a full explanation of all fees and additional costs, thecircumstances upon which they become due and advise thatby paying your fee, that amount may be considered as part ofthe chargeable consideration for the property and be includedin the calculation for stamp duty liability.Duration and Termination5m Your Terms of Business must clearly state the minimumduration of your instruction, and how it can be terminated byeither party. When a contract is signed by a client during a visitby you to his home, at his place of work, away from yourpremises or online, then he must be given a right to cancelthat contract within 14 calendar days of signing. He should begiven a ‘Notice of Right to Cancel’. Where the client wishesthe contract to begin before the end of the 14 day cancellationperiod you must obtain confirmation of that request in writing.Where you intend to recover costs incurred during thiscancellation period you must obtain the client’s agreement inwriting to those specific costs before work commences.5nIf you intend to charge the client a fee or recover costs forterminating the instruction, you must make this clear andspecify the amount of the fee and additional costs and theirpurpose.5pOn receipt of the seller’s instruction (includes executor,trustee, person holding power of attorney), or on your owndecision, to terminate your instruction, you must promptly givehim written confirmation that you are no longer acting for him,confirm the actual date of termination, and give details of anyfees or additional costs the client owes you (see 5s below).5qYour contract must allow for the required notice of terminationto be given before the end of the term, such that terminationby the client can occur at the expiry of the minimum term.Fee Entitlement and Client Liability5rAt the time of accepting instructions from a client, you mustpoint out and explain clearly to that client in your writtenTerms of Business: that you may be entitled to a commission fee if that clientterminates your instruction and a memorandum of sale isissued by another agent to a buyer that you haveintroduced within 6 months of the date your instructionended and where a subsequent exchange of contractstakes place.If no other estate agent is involved this time limit extendsto 2 years. and that the client may be liable to pay more than one fee if: that seller has previously instructed another agent tosell the same property on a sole agency, joint soleagency or a sole selling rights basis; or that seller instructs another agent during or after theperiod of your sole agency, joint sole agency or on asole selling rights basis.5sAt the time of the termination of the instruction, you mustexplain clearly in writing any continuing liability the client mayhave to pay you a commission fee and any circumstances inwhich he may otherwise have to pay more than onecommission fee.5tYour action in pursuing a commission fee or additionalcharges must be proportionate and reasonable and notintimidatory.

Code of Practice for Residential Estate Agents – page 4 of 85uAlthough nothing precludes you taking court action to pursuepayment of your commission account, it is generally expectedthat you will not take court action when a complainant hasreferred the matter to the Ombudsman. If however youdo pursue payment of your commission fee through the courtsyou must agree to the Ombudsman considering anyoutstanding service-related complaints after the court actionhas been determined.7gYou must not replace another agent’s board with your own,hide it or remove it from a property, without the client’spermission or without notifying the other agent.7hYou must comply with local legislation in relation to erectingyour boards.Published Material and Information about a Property7iYou must by law comply with the Consumer Protection fromUnfair Trading Regulations 2008. The Consumer Protectionfrom Unfair Trading Regulations 2008 require you to discloseany information of which you are aware or should be awareof in relation to the property in a clear, intelligible andtimely fashion and to take all reasonable steps that allstatements that you make about a property, whether oral,pictorial or written, are accurate and are not misleading.All material information (*) must be disclosed and theremust be no material omissions which may impact onthe average consumer’s (*) transactional decision (*) andwhere information is given to potential buyers or theirrepresentatives, it must be accurate and not misleading.7jThe written details of a property (sales particulars) must beagreed with the seller to confirm that the details are accurate.7kIn regard to leasehold properties, you should include basic keyinformation such as service charges; ground rent; the lengthof years remaining on the lease; any known special conditions,and advise sellers and prospective purchasers that there maybe additional fees that could be incurred for items such asleasehold packs. In relation to sheltered housing, you shouldinclude in sales particulars the existence and level (if known)of event fees (*).7lYou will be liable if you include anything in the salesparticulars which you have reason to doubt is correct.Signing5vYou must sign and date your Terms of Business before theyare given to your client. The client should be asked to sign andbe given a copy to retain. The client must be given sufficienttime to read them before agreeing to instruct you (refer alsoto paragraph 5m above).5w You should take reasonable steps to satisfy yourself thatthe seller is entitled to instruct you and to sign on behalf ofall co-sellers.Subsequent Changes5xAny subsequent changes to the Terms of Business must be: Mutually agreed by you and your client. Promptly confirmed in writing. Where appropriate, contained in a new Terms of Businesssigned and dated by your client.6. Energy Performance Certificates6aThe provisions set out in paragraphs 5f – 5k, 5m, 5n, 5t and 5vabove should be followed when entering into an agreementwith a seller for the supply of an Energy PerformanceCertificate (EPC) in relation to the property to be marketed.6bYou must provide adequate information to the seller to enablethe seller to understand the basic legal requirement for andcontent of an EPC, and use in relation to the marketing of theproperty.6cYou must advise the seller in writing of all charges relating tothe supply of an EPC and the terms of payment.7m All advertisements must be legal, decent, honest and truthfulin accordance with the British Codes of Advertising and SalesPromotion and Direct Marketing.8. Viewing and Access to PremisesViewings8aYou must take instructions from the seller as to hisrequirements regarding viewings, specifically whether or notthey should be conducted by you.8bYou must record any viewings that have been arranged for thatproperty, feedback from those viewings and pass this to theseller within a timescale agreed with your client. If thisfeedback is an offer, you should refer to section 9 below.For Sale Boards7b You must not erect any form of estate agency board at a propertyunless you have been instructed to market that property.8cBefore arranging any viewing, you must tell the viewer if youare aware of an offer that has already be

have recently sold and where completion has occurred, you must obtain the new owner’s prior permission. 3c When you advertise for new business your fees should be shown inclusive of VAT alongside a statement confirming that VAT is included. 3d If as a result of an unsolicited approach a seller is interested in using your services, you must draw to their attention, and expl ai nbf o r thy cm .

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