Estate Agents Act 1979

Orders by [F1 Office of Fair Trading] U.K.

Textual Amendments

F1 Words in cross-heading substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(2); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

3 Orders prohibiting unfit persons from doing estate agency work. U.K.

(1) The power of [F2 the Office of Fair Trading (in this Act referred to as “the OFT”)] to make an order under this section with respect to any person shall not be exercisable unless the [F3 OFT] is satisfied that that person—

(a) [F4 has committed ] —

(i) an offence involving fraud or other dishonesty or violence, or

(ii) an offence under any provision of this Act, other than section 10(6), section 22(3) or section 23(4), or

(iii) any other offence which, at the time it was committed, was specified for the purposes of this section by an order made by the Secretary of State; or

(b) has committed discrimination in the course of estate agency work; or

[F5 (ba) has failed to comply with an undertaking accepted from him under section 217, 218 or 219 of the Enterprise Act 2002 and given in relation to estate agency work; or

(bb) has failed to comply with an enforcement order under section 217 of the Enterprise Act 2002 which was made against him in relation to estate agency work; or]

(c) has failed to comply with any obligation imposed on him under any of sections 15 and 18 to 21 below; or

[F6 (ca) has engaged in estate agency work in relation to residential property in breach of the duty imposed by an order under section 23A(1) below; or]

[F7 (cb) has failed to comply with any requirement imposed on him under section 9(1) or 11(1A)(b) below; or]

(d) has engaged in a practice which, in relation to estate agency work, has been declared undesirable by an order made by the Secretary of State;

and the provisions of Schedule 1 to the Act shall have effect for supplementing paragraphs (a) and (b) above.

(2) Subject to subsection (1) above, if the [F3 OFT] is satisfied that any person is unfit to carry on estate agency work generally or of a particular description [F8 it] may make an order prohibiting that person—

(a) from doing any estate agency work at all; or

(b) from doing estate agency work of a description specified in the order;

and in determining whether a person is so unfit the [F3 OFT] may, in addition to taking account of any matters falling within subsection (1) above, also take account of whether, in the course of estate agency work or any other business activity, that person has engaged in any practice which involves breaches of a duty owed by virtue of any enactment, contract or rule of law and which is material to his fitness to carry on estate agency work.

(3) For the purposes of [F9 paragraphs (ba) to (d) ] of subsection (1) above,—

(a) anything done by a person in the course of his employment shall be treated as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval, unless the employer shows that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description; and

(b) anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that person shall be treated as done by that other person as well as by him; and

(c) anything done by a business associate of a person shall be treated as done by that person as well, unless he can show that the act was done without his connivance or consent.

(4) In an order under this section the [F3 OFT] shall specify as the grounds for the order those matters falling within paragraphs (a) to (d) of subsection (1) above as to which [F10 it] is satisfied and on which, accordingly, [F10 it] relies to give [F10 it] power to make the order.

(5) If the [F3 OFT] considers it appropriate, [F10 it] may in an order under this section limit the scope of the prohibition imposed by the order to a particular part of or area within the United Kingdom.

(6) An order under paragraph (a)(iii) or paragraph (d) of subsection (1) above—

(a) shall be made by statutory instrument;

(b) shall be laid before Parliament after being made; and

(c) shall cease to have effect (without prejudice to anything previously done in reliance on the order) after the expiry of the period of twenty-eight days beginning with the date on which it was made unless within that period it has been approved by a resolution of each House of Parliament.

(7) In reckoning for the purposes of subsection (6)(c) above any period of twenty-eight days, no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(8) A person who fails without reasonable excuse to comply with an order of the [F3 OFT] under this section shall be liable on conviction on indictment or on summary conviction to a fine which on summary conviction shall not exceed the statutory maximum.

Subordinate Legislation Made

P1 S. 3(1)(a)(iii) power exercised by S.I. 1991/860.

S. 3(1)(a)(iii) power exercised by S.I.1991/1091.

P2 S. 3(1)(d) power exercised by S.I. 1991/861.

S. 3(1)(d) power exercised by S.I. 1991/1032.

Textual Amendments

F2 Words in s. 3(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(2)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F3 Word in s. 3 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(2)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F4 Words in s. 3(1)(a) substituted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 55(2), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F5 S. 3(1)(ba)(bb) inserted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 55(3), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F6 S. 3(1)(ca) inserted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 53(2), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F7 S. 3(1)(cb) inserted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 58(2), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F8 Word in s. 3(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(2)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F9 Words in s. 3(3) substituted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 7 para. 1; S.I. 2008/905, art. 3(2), Sch. 2

F10 Word in s. 3(4)(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(2)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

4 Warning orders. U.K.

[F11 (1) If the OFT is satisfied that any of subsections (1A), (1B) or (1C) apply in relation to a person it may by order notify that person that it is satisfied of the matters mentioned in that subsection.

(1A) This subsection applies in relation to a person if—

(a) in the course of estate agency work, he has engaged in conduct falling within paragraph (a), (b), (c), (ca) or (cb) of section 3(1); and

(b) were he to engage again in any conduct falling within that paragraph, the OFT would consider him unfit and proceed to make a prohibition order.

(1B) This subsection applies in relation to a person if—

(a) in the course of estate agency work, he has engaged in conduct constituting a failure to comply with—

(i) an undertaking mentioned in section 3(1)(ba); or

(ii) an enforcement order mentioned in section 3(1)(bb); and

(b) were he to fail again to comply with that undertaking or order by engaging in the same or similar conduct, the OFT would consider him unfit and proceed to make a prohibition order.

(1C) This subsection applies in relation to a person if—

(a) in the course of estate agency work, he has engaged in a practice mentioned in section 3(1)(d); and

(b) were he to engage again in that practice, the OFT would consider him unfit and proceed to make a prohibition order.]

(2) An order under this section shall state whether, in the opinion of the [F12 OFT] , [F13 further conduct as mentioned in subsection (1A)(b) or (1B)(b) or engaging again in the practice specified in the order, as the case may be, ] is addressed unfit to carry on estate agency work generally or estate agency work of a description specified in the order.

(3) If, after an order has been made under this section, the person to whom it is addressed [F14 engages in further conduct as mentioned in subsection (1A)(b) or (1B)(b) or engages again in the practice specified in the order, as the case may be, ] in accordance with subsection (2) above; and the [F12 OFT] may proceed to make an order under section 3 above accordingly.

[F15 (4) In this section “unfit” means unfit as mentioned in subsection (2) of section 3 and “prohibition order” means an order under that section.]

Textual Amendments

F11 S. 4(1)-(1C) substituted for s. 4(1) (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 56(2), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F12 Word in s. 4 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(3)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F13 Words in s. 4(2) substituted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 56(3), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F14 Words in s. 4(3) substituted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 56(4), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

F15 S. 4(4) inserted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 56(5), 66(2) (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

5 Supplementary provisions as to orders under sections 3 and 4. U.K.

(1) The provisions of Part I of Schedule 2 to this Act shall have effect—

(a) with respect to the procedure to be followed before an order is made by the [F16 OFT] under section 3 or section 4 above; and

(b) in connection with the making and coming into operation of any such order.

(2) Where an order is made by the [F16 OFT] under section 3 or section 4 above against a partnership, it may, if the [F16 OFT] thinks it appropriate, have effect also as an order against some or all of the partners individually, and in such a case the order shall so provide and shall specify the names of the partners affected by the order.

(3) Nothing in section 62 of the M1 Sex Discrimination Act 1975, section 53 of the M2 Race Relations Act 1976 or Article 62 of the M3 Sex Discrimination (Northern Ireland) Order 1976 [F17 or Article 51 of the Race Relations (Northern Ireland) Order 1997] (restriction of sanctions for breaches of those Acts and [F18 those Orders]) shall be construed as applying to the making of an order by the [F16 OFT] under section 3 above.

F19 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In any case where—

(a) an order of the [F16 OFT] under section 3 above specifies as grounds for the order the fact that the person concerned committed discrimination by reason of the existence of any such finding or notice as is referred to in paragraph 2 of Schedule 1 to this Act, and

(b) the period expires at the end of which, by virtue of paragraph 3 of that Schedule, the person concerned would no longer be treated for the purposes of section 3(1)(b) above as having committed discrimination by reason only of that finding or notice,

then, unless the order also specifies other grounds which remain valid, the order shall cease to have effect at the end of that period.

Textual Amendments

F16 Word in s. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(4); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F17 Words in s. 5(3) inserted (4.8.1997) by S.I. 1997/869 (N.I. 6), art. 73, Sch. 2 para. 2(1); S.R. 1997/273, art. 2(4)

F18 Words in s. 5(3) substituted (4.8.1997) by S.I. 1997/869 (N.I. 6), art. 73, Sch. 2 para. 2(1); S.R. 1997/273, art. 2(4)

F19 S. 5(4) repealed (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 55(4), 66(2), Sch. 8 (with s. 48(3)); S.I. 2008/905, art. 3(2), Sch. 2

Marginal Citations

M1 1975 c. 65.

M2 1976 c. 74.

M3 S.I. 1976/1042 (N.I. 15)

6 Revocation and variation of orders under sections 3 and 4. U.K.

(1) On an application made to [F20 it] by the person in respect of whom the [F21 OFT] has made an order under section 3 or section 4 above, the [F21 OFT] may revoke or vary the order.

(2) An application under subsection (1) above—

(a) shall state the reasons why the applicant considers that the order should be revoked or varied;

(b) in the case of an application for a variation, shall indicate the variation which the applicant seeks; and

(c) shall be accompanied by the prescribed fee.

(3) If the [F21 OFT] decides to accede to an application under subsection (1) above, [F22 it] shall give notice in writing of [F23 its] decision to the applicant and, upon the giving of that notice, the revocation or, as the case may be, the variation specified in the application shall take effect.

(4) The [F21 OFT] may decide to refuse an application under subsection (1) above—

(a) where it relates to an order under section 3 above, if [F22 it] considers that the applicant remains unfit to carry on any estate agency work at all or, as the case may be, estate agency work of the description which is prohibited by the order; and

(b) where it relates to an order under section 4 above, if [F22 it] considers that the applicant may [F24 engage in further conduct as mentioned in subsection (1A)(b) or (1B)(b) of that section or engage again in the practice specified in the order, as the case may be. ] .

(5) If, on an application under subsection (1) above, the [F21 OFT] decides that—

(a) [F22 it] cannot accede to the application because [F22 it] considers that the applicant remains unfit to carry on any estate agency work at all in a particular part of or area within the United Kingdom or remains unfit to carry on estate agency work of a particular description (either throughout the United Kingdom or in a particular part of or area within it) or, as the case may be, remains likely to fail to comply with a relevant statutory obligation or to engage in a particular practice, but

(b) the order to which the application relates could, without detriment to the public, be varied in favour of the applicant,

the [F21 OFT] may make such a variation accordingly.

(6) The provisions of Part II of Schedule 2 to this Act shall have effect in relation to any application to the [F21 OFT] under subsection (1) above and the provisions of Part I of that Schedule shall have effect—

(a) with respect to the procedure to be followed before the [F21 OFT] comes to a decision under subsection (4) or subsection (5) above; and

(b) in connection with the making and coming into operation of such a decision.

F25 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F20 Word in s. 6(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(5)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F21 Word in s. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(5)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F22 Word in s. 6(3)-(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(5)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F23 Word in s. 6(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(5)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F24 Words in s. 6(4)(b) substituted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 7 para. 2(a); S.I. 2008/905, art. 3(2), Sch. 2

F25 S. 6(7) repealed (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 7 para. 2(b), Sch. 8; S.I. 2008/905, art. 3(2), Sch. 2

7 Appeals. U.K.

(1) A person who receives notice under paragraph 9 of Schedule 2 to this Act of—

(a) a decision of the [F26 OFT] to make an order in respect of him under section 3 or section 4 above, or

(b) a decision of the [F26 OFT] under subsection (4) or subsection (5) of section 6 above on an application made by him,

may appeal against the decision to the [F27 First-tier Tribunal] .

(2) On an appeal under subsection (1) above the [F28 First-tier Tribunal] may give such directions for disposing of the appeal as [F29 it] thinks justF30 ....

F31 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F26 Word in s. 7(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(6); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F27 Words in s. 7(1) substituted (1.9.2009) by The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 (S.I. 2009/1836), art. 1(1), Sch. 1 para. 3(a) (with Sch. 3)

F28 Words in s. 7(2) substituted (1.9.2009) by The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 (S.I. 2009/1836), art. 1(1), Sch. 1 para. 3(b)(i) (with Sch. 3)

F29 Word in s. 7(2) substituted (1.9.2009) by The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 (S.I. 2009/1836), art. 1(1), Sch. 1 para. 3(b)(ii) (with Sch. 3)

F30 Words in s. 7(2) omitted (1.9.2009) by virtue of The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 (S.I. 2009/1836), art. 1(1), Sch. 1 para. 3(b)(iii) (with Sch. 3)

F31 S. 7(3)-(6) omitted (1.9.2009) by virtue of The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 (S.I. 2009/1836), art. 1(1), Sch. 1 para. 3(c) (with Sch. 3)

Modifications etc. (not altering text)

C1 S. 7 power to transfer functions conferred (19.9.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 30, 35, 148; S.I. 2007/2709, art. 2(a)

C2 S. 7(1): transfer of functions (1.9.2009) by The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 (S.I. 2009/1836), arts. 1(1), 2 (with Sch. 3)

8 Register of orders etc. U.K.

(1) The [F32 OFT] shall establish and maintain a register on which there shall be entered particulars of every order made by [F33 it] under section 3 or section 4 above and of [F33 its] decision on any application for revocation or variation of such an order.

(2) The particulars referred to in subsection (1) above shall include—

(a) the terms of the order and of any variation of it; and

(b) the date on which the order or variation came into operation or is expected to come into operation or if an appeal against the decision is pending and the order or variation has in consequence not come into operation, a statement to that effect.

(3) The [F32 OFT] may, of [F34 its] own motion or on the application of any person aggrieved, rectify the register by the addition, variation or removal of any particulars; and the provisions of Part II of Schedule 2 to this Act shall have effect in relation to an application under this subsection.

(4) If it comes to the attention of the [F32 OFT] that any order of which particulars appear in the register is no longer in operation, [F35 it] shall remove those particulars from the register.

(5) Any person shall be entitled on payment of the prescribed fee—

(a) to inspect the register during such office hours as may be specified by a general notice made by the [F32 OFT] and to take copies of any entry, or

(b) to obtain from the [F32 OFT] a copy, certified by [F36 it] to be correct, of any entry in the register.

(6) A certificate given by the [F32 OFT] under subsection (5)(b) above shall be conclusive evidence of the fact that, on the date on which the certificate was given, the particulars contained in the copy to which the certificate relates were entered on the register; and particulars of any matters required to be entered on the register which are so entered shall be evidence and, in Scotland, sufficient evidence of those matters and shall be presumed, unless the contrary is proved, to be correct.

Textual Amendments

F32 Word in s. 8 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(7)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F33 Words in s. 8(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(7)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F34 Word in s. 8(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(7)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F35 Word in s. 8(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(7)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F36 Word in s. 8(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 9(7)(e); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)