Estate Agents Act 1979
1979 c.38
An Act to make provision with respect to the carrying on of and to persons who carry on, certain activities in connection with the disposal and acquisition of interests in land; and for purposes connected therewith.
Act excluded (prosp.) by Administration of Justice Act 1985 (c. 61, SIF 98:1), s. 34(3)
Act applied (1.8.2007 for specified purposes, 10.9.2007 for specified purposes, 14.12.2007 for specified purposes, 6.4.2008 in so far as not already in force) by Housing Act 2004 (c. 34), ss. 175(3), 270(6); S.I. 2007/1668, art. 2 (with arts. 3,4); S.I. 2007/2471, art. 2 (with arts. 3,4); S.I. 2007/3308, art. 2 (with arts. 3,4); S.I. 2008/898, art. 2(1) (with art. 2(2))
Act excluded (12.9.2011) by The Legal Services Act 2007 (Designation as a Licensing Authority) Order 2011 (S.I. 2011/2038), Sch. para. 4
Application of Act
1C2 Estate agency work.
1
This Act applies, subject to subsections (2) to (4) below to things done by any person in the course of a business (including a business in which he is employed) pursuant to instructions received from another person (in this section referred to as “the client”) who wishes to dispose of or acquire an interest in land—
a
for the purpose of, or with a view to, effecting the introduction to the client of a third person who wishes to acquire or, as the case may be, dispose of such an interest; and
b
after such an introduction has been effected in the course of that business, for the purpose of securing the disposal or, as the case may be, the acquisition of that interest;
and in this Act the expression “estate agency work” refers to things done as mentioned above to which this Act applies.
2
This Act does not apply to things done—
C3a
b
in the course of credit brokerage, within the meaning of the M1Consumer Credit Act 1974; or
F2c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
in the course of carrying out any survey or valuation pursuant to a contract which is distinct from that under which other things falling within subsection (1) above are done; or
e
in connection with applications and other matters arising under F3the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous Substances) Act 1990 or F4the Town and Country Planning (Scotland) Act 1997, the Planning (Listed Buildings and Conservation Areas)
(Scotland) Act 1997, the Planning (Hazardous Substances)
(Scotland) Act 1997 or the M2F188Planning (Northern Ireland)
F5Order 1991F188Planning Act (Northern Ireland) 2011 .
3
This Act does not apply to things done by any person—
a
pursuant to instructions received by him in the course of his employment in relation to an interest in land if his employer is the person who, on his own behalf, wishes to dispose of or acquire that interest; or
b
in relation to any interest in any property if the property is subject to a mortgage and he is the receiver of the income of it; or
c
in relation to a present, prospective or former employee of his or of any person by whom he also is employed if the things are done by reason of the employment (whether past, present or future).
F884
This Act does not apply to the following things when done by a person who does no other things which fall within subsection (1) above—
a
publishing advertisements or disseminating information;
b
providing a means by which—
i
a person who wishes to acquire or dispose of an interest in land can, in response to such an advertisement or dissemination of information, make direct contact with a person who wishes to dispose of or, as the case may be, acquire an interest in land;
ii
the persons mentioned in sub-paragraph (i) can continue to communicate directly with each other.
5
In this section—
C4a
b
“mortgage” includes a debenture and any other charge on property for securing money or money’s worth; and
c
any reference to employment is a reference to employment under a contract of employment.
C52 Interests in land.
1
Subject to subsection (3) below, any reference in this Act to disposing of an interest in land is a reference to—
a
transferring a legal estate in fee simple absolute in possession; or
b
transferring or creating, elsewhere than in Scotland, a lease which, by reason of the level of the rent, the length of the term or both, has a capital value which may be lawfully realised on the open market; or
c
transferring or creating in Scotland any estate or interest in land which is capable of being owned or held as a separate interest and to which a title may be recorded in the Register of Sasines;
and any reference to acquiring an interest in land shall be construed accordingly.
2
In subsection (1)(b) above the expression “lease” includes the rights and obligations arising under an agreement to grant a lease.
3
Notwithstanding anything in subsections (1) and (2) above, references in this Act to disposing of an interest in land do not extend to disposing of—
a
the interest of a creditor whose debt is secured by way of a mortgage or charge of any kind over land or an agreement for any such mortgage or charge; or
b
in Scotland, the interest of a creditor in a heritable security as defined in section 9(8) of the M5Conveyancing and Feudal Reform (Scotland) Act 1970.
Orders by F90the lead enforcement authority
Words in cross-heading substituted (31.3.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(5), Sch. 2 para. 1(2) (with Sch. 1 para. 28, 2 paras. 13-15)
3 Orders prohibiting unfit persons from doing estate agency work.
1
The power of F18the F95lead enforcement authority to make an order under this section with respect to any person shall not be exercisable unless the F96lead enforcement authority is satisfied that that person—
a
F63 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
P1iii
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
F62ba
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
F60ca
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
F61cb
has failed to comply with any requirement imposed on him under F189 paragraph 14 or 27 of Schedule 5 to the Consumer Rights Act 2015 ; or
P2d
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 F97lead enforcement authority is satisfied that any person is unfit to carry on estate agency work generally or of a particular description F19it 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 F97lead enforcement authority 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 F64 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
5
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 F100lead enforcement authority 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.
4 Warning orders.
F651
If the F101lead enforcement authority 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 F102lead enforcement authority 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 F103lead enforcement authority 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 F104lead enforcement authority 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 F105lead enforcement authority, F67further 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 F68engages 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 F106lead enforcement authority may proceed to make an order under section 3 above accordingly.
F664
In this section “unfit” means unfit as mentioned in subsection (2) of section 3 and “prohibition order” means an order under that section.
5 Supplementary provisions as to orders under sections 3 and 4.
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 F107lead enforcement authority 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 F108lead enforcement authority under section 3 or section 4 above against a partnership, it may, if the F108lead enforcement authority 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 F80section 113 of the Equality Act 2010 (proceedings) or Article 62 of the M6Sex Discrimination (Northern Ireland) Order 1976 F6or Article 51 of the Race Relations (Northern Ireland) Order 1997 (restriction of sanctions for breaches of F79... F7those Orders) shall be construed as applying to the making of an order by the F109lead enforcement authority under section 3 above.
F694
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In any case where—
a
an order of the F110lead enforcement authority 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.
6 Revocation and variation of orders under sections 3 and 4.
1
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 F112lead enforcement authority decides to accede to an application under subsection (1) above, F23it shall give notice in writing of F22its 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 F113lead enforcement authority may decide to refuse an application under subsection (1) above—
a
where it relates to an order under section 3 above, if F23it 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
5
If, on an application under subsection (1) above, the F114lead enforcement authority decides that—
a
F23it cannot accede to the application because F23it 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 F114lead enforcement authority 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 F115lead enforcement authority 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 F115lead enforcement authority 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.
F717
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C77 Appeals.
C91
A person who receives notice under paragraph 9 of Schedule 2 to this Act of—
a
a decision of the F116lead enforcement authority to make an order in respect of him under section 3 or section 4 above, or
b
a decision of the F116lead enforcement authority under subsection (4) or subsection (5) of section 6 above on an application made by him,
may appeal against the decision to the F74First-tier Tribunal.
2
F783
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F784
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F785
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F786
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8 Register of orders etc.
1
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 F118lead enforcement authority may, of F25its 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
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 F120lead enforcement authority and to take copies of any entry, or
6
A certificate given by the F121lead enforcement authority 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.
Information, entry and inspection
9 Information for the F89lead enforcement authority
F1901
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1902
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1903
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1904
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F455
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
It shall be the duty of—
F52a
the Equal Opportunities Commission,
F52a
the Commission for Equality and Human Rights, and
b
the Equal Opportunities Commission for Northern Ireland, F53and
c
the Commission for Racial Equality,
to furnish to the F122lead enforcement authority such information relating to any finding, notice, injunction or order falling within paragraph 2 of Schedule 1 to this Act as is in their possession and appears to them to be relevant to the functions of the F122lead enforcement authority under this Act.
9AF92Notice of convictions and judgments
1
This section applies if—
a
a person is convicted of an offence by or before a court in the United Kingdom, or
b
a judgment is given against a person by a court in civil proceedings in the United Kingdom.
2
The court may make arrangements to bring the conviction or judgment to the attention of the lead enforcement authority if it appears to the court that—
a
having regard to the functions of the lead enforcement authority under this Act it is expedient for the conviction or judgment to be brought to the attention of the lead enforcement authority, and
b
without such arrangements the conviction or judgment may not be brought to the attention of the lead enforcement authority.
F4610 Restriction on disclosure of information.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F19111 Powers of entry and inspection.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F19211AFailure to produce information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Clients’ money and accounts
12 Meaning of “clients’ money” etc.
1
In this Act “clients’ money”, in relation to a person engaged in estate agency work, means any money received by him in the course of that work which is a contract or pre-contract deposit—
a
in respect of the acquisition of an interest in land in the United Kingdom, or
b
in respect of a connected contract,
whether that money is held or received by him as agent, bailee, stakeholder or in any other capacity.
2
In this Act “contract deposit” means any sum paid by a purchaser—
a
which in whole or in part is, or is intended to form part of, the consideration for acquiring such an interest as is referred to in subsection (1)(a) above or for a connected contract; and
b
which is paid by him at or after the time at which he acquires the interest or enters into an enforceable contract to acquire it.
3
In this Act “pre-contract deposit” means any sum paid by any person—
a
in whole or in part as an earnest of his intention to acquire such an interest as is referred to in subsection (1)(a) above, or
b
in whole or in part towards meeting any liability of his in respect of the consideration for the acquisition of such an interest which will arise if he acquires or enters into an enforceable contract to acquire the interest, or
c
in respect of a connected contract,
and which is paid by him at a time before he either acquires the interest or enters into an enforceable contract to acquire it.
4
In this Act “connected contract”, in relation to the acquisition of an interest in land, means a contract which is conditional upon such an acquisition or upon entering into an enforceable contract for such an acquisition (whether or not it is also conditional on other matters).
13 Clients’ money held on trust or as agent.
1
It is hereby declared that clients’ money received by any person in the course of estate agency work in England, Wales or Northern Ireland—
a
is held by him on trust for the person who is entitled to call for it to be paid over to him or to be paid on his direction or to have it otherwise credited to him, or
b
if it is received by him as stakeholder, is held by him on trust for the person who may become so entitled on the occurrence of the event against which the money is held.
2
It is hereby declared that clients’ money received by any person in the course of estate agency work in Scotland is held by him as agent for the person who is entitled to call for it to be paid over to him or to be paid on his direction or to have it otherwise credited to him.
3
The provisions of sections 14 and 15 below as to the investment of clients’ money, the keeping of accounts and records and accounting for interest shall have effect in place of the corresponding duties which would be owed by a person holding clients’ money as trustee, or in Scotland as agent, under the general law.
4
Where an order of the F123lead enforcement authority under section 3 above has the effect of prohibiting a person from holding clients’ money the order may contain provision—
a
appointing another person as trustee, or in Scotland as agent, in place of the person to whom the order relates to hold and deal with clients’ money held by that person when the order comes into effect; and
b
requiring the expenses and such reasonable remuneration of the new trustee or agent as may be specified in the order to be paid by the person to whom the order relates or, if the order so provides, out of the clients’ money;
5
For the avoidance of doubt it is hereby declared that the fact that any person has or may have a lien on clients’ money held by him does not affect the operation of this section and also that nothing in this section shall prevent such a lien from being given effect.
14 Keeping of client accounts.
1
Subject to such provision as may be made by accounts regulations, every person who receives clients’ money in the course of estate agency work shall, without delay, pay the money into a client account maintained by him or by a person in whose employment he is.
2
In this Act a “client account” means a current or deposit account which—
a
is with an institution authorised for the purposes of this section, and
b
is in the name of a person who is or has been engaged in estate agency work; and
c
contains in its title the word “client”.
3
The Secretary of State may make provision by regulations (in this section referred to as “accounts regulations”) as to the opening and keeping of client accounts, the keeping of accounts and records relating to clients’ money and the auditing of those accounts; and such regulations shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
4
As to the opening and keeping of client accounts, accounts regulations may in particular specify—
a
the institutions which are authorised for the purposes of this section;
b
any persons or classes of persons to whom, or any circumstances in which, the obligation imposed by subsection (1) above does not apply;
c
any circumstances in which money other than clients’ money may be paid into a client account; and
d
the occasions on which, and the persons to whom, money held in a client account may be paid out.
5
As to the auditing of accounts relating to clients’ money, accounts regulations may in particular make provision—
a
requiring such accounts to be drawn up in respect of specified accounting periods and to be audited by a qualified auditor within a specified time after the end of each such period;
b
requiring the auditor to report whether in his opinion the requirements of this Act and of the accounts regulations have been complied with or have been substantially complied with;
c
as to the matters to which such a report is to relate and the circumstances in which a report of substantial compliance may be given; and
d
requiring a person who maintains a client account to produce on demand to a duly authorised officer of an enforcement authority the latest auditor’s report.
F86
Subject to subsection (7) below, “qualified auditor” in subsection (5)(a) above means a person who is F58eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006.
7
A person is not a qualified auditor for the purposes of subsection (5)(a) above if, in the case of a client account maintained by a company, he is F59prohibited from acting as statutory auditor of the company by virtue of section 1214 of the Companies Act 2006 (independence requirement).
8
A person who—
a
contravenes any provision of this Act or of accounts regulations as to the manner in which clients’ money is to be dealt with or accounts and records relating to such money are to be kept, or
b
fails to produce an auditor’s report when required to do so by accounts regulations,
shall be liable on summary conviction to a fine not exceeding F9level 4 on the standard scale.
15 Interest on clients’ money.
1
Accounts regulations may make provision for requiring a person who has received any clients’ money to account, in such cases as may be prescribed by the regulations, to the person who is or becomes entitled to the money for the interest which was, or could have been, earned by putting the money in a separate deposit account at an institution authorised for the purposes of section 14 above.
2
The cases in which a person may be required by accounts regulations to account for interest as mentioned in subsection (1) above may be defined, amongst other things, by reference to the amount of the sum held or received by him or the period for which it is likely to be retained, or both.
3
Except as provided by accounts regulations and subject to subsection (4) below, a person who maintains a client account in which he keeps clients’ money generally shall not be liable to account to any person for interest received by him on money in that account.
4
Nothing in this section or in accounts regulations shall affect any arrangement in writing, whenever made, between a person engaged in estate agency work and any other person as to the application of, or of any interest on, money in which that other person has or may have an interest.
5
Failure of any person to comply with any provision of accounts regulations made by virtue of this section may be taken into account by the F124lead enforcement authority in accordance with section 3(1)(c) above and may form the basis of a civil claim for interest which was or should have been earned on clients’ money but shall not render that person liable to any criminal penalty.
6
In this section “accounts regulations” has the same meaning as in section 14 above.
16 Insurance cover for clients’ money.
1
Subject to the provisions of this section, a person may not accept clients’ money in the course of estate agency work unless there are in force authorised arrangements under which, in the event of his failing to account for such money to the person entitled to it, his liability will be made good by another.
2
The Secretary of State may by regulations made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament,—
a
specify any persons or classes of persons to whom subsection (1) above does not apply;
b
specify arrangements which are authorised for the purposes of this section including arrangements to which an enforcement authority nominated for the purpose by the Secretary of State or any other person so nominated is a party;
c
specify the terms and conditions upon which any payment is to be made under such arrangements and any circumstances in which the right to any such payment may be excluded or modified;
d
provide that any limit on the amount of any such payment is to be not less than a specified amount;
e
require a person providing authorised arrangements covering any person carrying on estate agency work to issue a certificate in a form specified in the regulations certifying that arrangements complying with the regulations have been made with respect to that person; and
f
prescribe any matter required to be prescribed for the purposes of subsection (4) below.
3
Every guarantee entered into by a person (in this subsection referred to as “the insurer”) who provides authorised arrangements covering another person (in this subsection referred to as “the agent”) carrying on estate agency work shall enure for the benefit of every person from whom the agent has received clients’ money as if—
a
the guarantee were contained in a contract made by the insurer with every such person; and
b
except in Scotland, that contract were under seal; and
c
where the guarantee is given by two or more insurers, they had bound themselves jointly and severally.
4
No person who carries on estate agency work may describe himself as an “estate agent” or so use any name or in any way hold himself out as to indicate or reasonably be understood to indicate that he is carrying on a business in the course of which he is prepared to act as a broker in the acquisition or disposal of interests in land unless, in such manner as may be prescribed,—
a
there is displayed at his place of business, and
b
there is included in any relevant document issued or displayed in connection with his business,
any prescribed information relating to arrangements authorised for the purposes of this section.
5
For the purposes of subsection (4) above,—
a
any business premises at which a person carries on estate agency work and to which the public has access is a place of business of his; and
b
“relevant document” means any advertisement, notice or other written material which might reasonably induce any person to use the services of another in connection with the acquisition or disposal of an interest in land.
6
A person who fails to comply with any provision of subsection (1) or subsection (4) above or of regulations under subsection (2) above which is binding on him shall be liable on conviction on indictment or on summary conviction to a fine which, on summary conviction, shall not exceed the statutory maximum.
17 Exemptions from section 16.
1
If, on an application made to F28it in that behalf, the F125lead enforcement authority considers that a person engaged in estate agency work may, without loss of adequate protection to consumers, be exempted from all or any of the provisions of subsection (1) of section 16 above or of regulations under subsection (2) of that section, F28it may issue to that person a certificate of exemption under this section.
2
An application under subsection (1) above—
a
shall state the reasons why the applicant considers that he should be granted a certificate of exemption; and
b
shall be accompanied by the prescribed fee.
3
A certificate of exemption under this section—
a
may impose conditions of exemption on the person to whom it is issued;
b
may be issued to have effect for a period specified in the certificate or without limit of time.
4
If and so long as—
a
a certificate of exemption has effect, and
b
the person to whom it is issued complies with any conditions of exemption specified in the certificate,
that person shall be exempt, to the extent so specified, from the provisions of subsection (1) of section 16 above and of any regulations made under subsection (2) of that section.
5
6
If a person who made an application under subsection (1) above is aggrieved by a decision of the F127lead enforcement authority—
a
to refuse his application, or
b
to grant him a certificate of exemption subject to conditions,
he may appeal against the decision to the Secretary of State; and subsections (2) to (6) of section 7 above shall apply to such an appeal as they apply to an appeal under that section.
7
A person who fails to comply with any condition of exemption specified in a current certificate of exemption issued to him shall be liable on conviction on indictment or on summary conviction to a fine which, on summary conviction, shall not exceed the statutory maximum.
Regulation of other aspects of estate agency work
18 Information to clients of prospective liabilities.
1
Subject to subsection (2) below, before any person (in this section referred to as “the client”) enters into a contract with another (in this section referred to as “the agent”) under which the agent will engage in estate agency work on behalf of the client, the agent shall give the client—
a
the information specified in subsection (2) below; and
b
any additional information which may be prescribed under subsection (4) below.
2
The following is the information to be given under subsection (1)(a) above—
a
particulars of the circumstances in which the client will become liable to pay remuneration to the agent for carrying out estate agency work;
b
particulars of the amount of the agent’s remuneration for carrying out estate agency work or, if that amount is not ascertainable at the time the information is given, particulars of the manner in which the remuneration will be calculated;
c
particulars of any payments which do not form part of the agent’s remuneration for carrying out estate agency work or a contract or pre-contract deposit but which, under the contract referred to in subsection (1) above, will or may in certain circumstances be payable by the client to the agent or any other person and particulars of the circumstances in which any such payments will become payable; and
d
particulars of the amount of any payment falling within paragraph (c) above or, if that amount is not ascertainable at the time the information is given, an estimate of that amount together with particulars of the manner in which it will be calculated.
3
If, at any time after the client and the agent have entered into such a contract as is referred to in subsection (1) above, the parties are agreed that the terms of the contract should be varied so far as they relate to the carrying out of estate agency work or any payment falling within subsection (2)(c) above, the agent shall give the client details of any changes which, at the time the statement is given, fall to be made in the information which was given to the client under subsection (1) above before the contract was entered into.
P34
The Secretary of State may by regulations—
a
prescribe for the purposes of subsection (1)(b) above additional information relating to any estate agency work to be performed under the contract; and
b
make provision with respect to the time and the manner in which the obligation of the agent under subsection (1) or subsection (3) above is to be performed;
and the power to make regulations under this subsection shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
5
If any person—
a
fails to comply with the obligation under subsection (1) above with respect to a contract or with any provision of regulations under subsection (4) above relating to that obligation, or
b
fails to comply with the obligation under subsection (3) above with respect to any variation of a contract or with any provision of regulations under subsection (4) above relating to that obligation,
the contract or, as the case may be, the variation of it shall not be enforceable by him except pursuant to an order of the court under subsection (6) below.
6
If, in a case where subsection (5) above applies in relation to a contract or a variation of a contract, the agent concerned makes an application to the court for the enforcement of the contract or, as the case may be, of a contract as varied by the variation,—
a
the court shall dismiss the application if, but only if, it considers it just to do so having regard to prejudice caused to the client by the agent’s failure to comply with his obligation and the degree of culpability for the failure; and
b
where the court does not dismiss the application, it may nevertheless order that any sum payable by the client under the contract or, as the case may be, under the contract as varied shall be reduced or discharged so as to compensate the client for prejudice suffered as a result of the agent’s failure to comply with his obligation.
7
In this section—
a
references to the enforcement of a contract or variation include the withholding of money in pursuance of a lien for money alleged to be due under the contract or as a result of the variation; and
b
“the court” means any court having jurisdiction to hear and determine matters arising out of the contract.
19 Regulation of pre-contract deposits outside Scotland.
1
No person may, in the course of estate agency work in England, Wales or Northern Ireland, seek from any other person (in this section referred to as a “prospective purchaser”) who wishes to acquire an interest in land in the United Kingdom, a payment which, if made, would constitute a pre-contract deposit in excess of the prescribed limit.
2
If, in the course of estate agency work, any person receives from a prospective purchaser a pre-contract deposit which exceeds the prescribed limit, so much of that deposit as exceeds the prescribed limit shall forthwith be either repaid to the prospective purchaser or paid to such other person as the prospective purchaser may direct.
3
In relation to a prospective purchaser, references in subsections (1) and (2) above to a pre-contract deposit shall be treated as references to the aggregate of all the payments which constitute pre-contract deposits in relation to his proposed acquisition of a particular interest in land in the United Kingdom.
4
In this section “the prescribed limit” means such limit as the Secretary of State may by regulations prescribe; and such a limit may be so prescribed either as a specific amount or as a percentage or fraction of a price or other amount determined in any particular case in accordance with the regulations.
5
The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
6
Failure by any person to comply with subsection (1) or subsection (2) above may be taken into account by the F128lead enforcement authority in accordance with section 3(1)(c) above but shall not render that person liable to any criminal penalty nor constitute a ground for any civil claim, other than a claim for the recovery of such an excess as is referred to in subsection (2) above.
7
This section does not form part of the law of Scotland.
Supervision, enforcement, publicity, etc.
20 Prohibition of pre-contract deposits in Scotland.
1
No person may, in the course of estate agency work in Scotland, seek or accept from any person (in this section referred to as a “prospective purchaser”) who wishes to acquire an interest in land in the United Kingdom a payment which, if made, would constitute a pre-contract deposit or, as the case may be, which constitutes such a deposit.
2
If, in the course of estate agency work in Scotland, any person receives from a prospective purchaser a payment which constitutes a pre-contract deposit, it shall forthwith be either repaid to the prospective purchaser or paid to such person as the prospective purchaser shall direct.
3
Failure by any person to comply with subsection (1) or subsection (2) above may be taken into account by the F129lead enforcement authority in accordance with section 3(1)(c) above but shall not render that person liable to any criminal penalty nor constitute a ground for any civil claim, other than a claim under subsection (2) above for the recovery of the pre-contract deposit.
4
This section forms part of the law of Scotland only.
21 Transactions in which an estate agent has a personal interest.
1
A person who is engaged in estate agency work (in this section referred to as an “estate agent”) and has a personal interest in any land shall not enter into negotiations with any person with respect to the acquisition or disposal by that person of any interest in that land until the estate agent has disclosed to that person the nature and extent of his personal interest in it.
2
In any case where the result of a proposed disposal of an interest in land or of such a proposed disposal and other transactions would be that an estate agent would have a personal interest in that land, the estate agent shall not enter into negotiations with any person with respect to the proposed disposal until he has disclosed to that person the nature and extent of that personal interest.
3
Subsections (1) and (2) above apply where an estate agent is negotiating on his own behalf as well as where he is negotiating in the course of estate agency work.
4
An estate agent may not seek or receive a contract or pre-contract deposit in respect of the acquisition or proposed acquisition of—
a
a personal interest of his in land in the United Kingdom; or
b
any other interest in any such land in which he has a personal interest.
5
For the purposes of this section, an estate agent has a personal interest in land if—
a
he has a beneficial interest in the land or in the proceeds of sale of any interest in it; or
b
he knows or might reasonably be expected to know that any of the following persons has such a beneficial interest, namely,—
i
his employer or principal, or
ii
any employee or agent of his, or
iii
any associate of his or of any person mentioned in sub-paragraphs (i) and (ii) above.
6
Failure by an estate agent to comply with any of the preceding provisions of this section may be taken into account by the F130lead enforcement authority in accordance with section 3(1)(c) above but shall not render the estate agent liable to any criminal penalty nor constitute a ground for any civil claim.
22 Standards of competence.
1
The Secretary of State may by regulations made by statutory instrument make provision for ensuring that persons engaged in estate agency work satisfy minimum standards of competence.
2
If the Secretary of State exercises his power to make regulations under subsection (1) above, he shall in the regulations prescribe a degree of practical experience which is to be taken as evidence of competence and, without prejudice to the generality of subsection (1) above, the regulations may, in addition,—
a
prescribe professional or academic qualifications which shall also be taken to be evidence of competence;
b
designate any body of persons as a body which may itself specify professional qualifications the holding of which is to be taken as evidence of competence;
c
make provision for and in connection with the establishment of a body having power to examine and inquire into the competence of persons engaged or professing to engage in estate agency work; and
d
delegate to a body established as mentioned in paragraph (c) above powers of the Secretary of State with respect to the matters referred to in paragraph (a) above;
and any reference in the following provisions of this section to a person who has attained the required standard of competence is a reference to a person who has that degree of practical experience which, in accordance with the regulations, is to be taken as evidence of competence or, where the regulations so provide, holds such qualifications or otherwise fulfils such conditions as, in accordance with the regulations, are to be taken to be evidence of competence.
3
After the day appointed for the coming into force of this subsection,—
a
no individual may engage in estate agency work on his own account unless he has attained the required standard of competence;
b
no member of a partnership may engage in estate agency work on the partnership’s behalf unless such number of the partners as may be prescribed have attained the required standard of competence; and
c
no body corporate or unincorporated association may engage in estate agency work unless such numbers and descriptions of the officers, members or employees as may be prescribed have attained the required standard of competence;
and any person who contravenes this subsection shall be liable on conviction, on indictment or on summary conviction to a fine which, on summary conviction, shall not exceed the statutory maximum.
4
In subsection (3) above “prescribed” means prescribed by the Secretary of State by order made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
5
No regulations shall be made under this section unless a draft of them has been laid before Parliament and approved by a resolution of each House.
23 Bankrupts not to engage in estate agency work.
1
An individual who is F197made bankrupt after the day appointed for the coming into force of this section or, in Scotland, whose estate is sequestrated after that day shall not engage in estate agency work of any description except as an employee of another person.
F841A
An individual in respect of whom a debt relief order (under Part 7A of the Insolvency Act 1986) is made shall not engage in estate agency work of any description except as an employee of another person
2
The prohibition imposed on an individual by subsection (1) above shall cease to have effect if and when—
a
F11b
he is discharged from bankruptcy.
F852A
The prohibition imposed on an individual by subsection (1A) shall cease to have effect if and when—
a
the debt relief order is revoked for reasons falling within section 251(L)(2)(a) or (c) of the Insolvency Act 1986;
b
the individual is discharged from all the qualifying debts specified under the debt relief order at the end of the moratorium period applicable to the order; or
c
the debt relief order is revoked and a period of one year has elapsed beginning with the effective date for the order.
3
F86The references in this section to employment of an individual by another person does not include employment of him by a body corporate of which he is a director or controller.
4
If a person engages in estate agency work in contravention F87of this section he shall be liable on conviction on indictment or on summary conviction to a fine which on summary conviction shall not exceed the statutory maximum.
F54Redress schemes
Ss. 23A-23C and cross-heading inserted (12.10.2007) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 6 para. 2; S.I. 2007/2934, art. 3, Sch.
23ARedress schemes
1
The Secretary of State may by order require persons who engage in estate agency work in relation to residential property (“relevant estate agency work”) to be members of an approved redress scheme for dealing with complaints in connection with that work.
2
An order may provide for the duty to apply—
a
only to specified descriptions of persons who engage in estate agency work; and
b
in relation to any relevant estate agency work carried out by a person to whom the duty applies or only in relation to specified descriptions of work (which may be framed by reference to descriptions of residential property).
3
An order may also provide for the duty not to apply in relation to complaints of any specified description (which may be framed by reference to a description of person making a complaint).
4
In subsections (1) and (2)(a), the reference to persons who engage in estate agency work does not include a reference to persons who engage in that work in the course of their employment.
5
The power to make an order shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
6
Before making an order the Secretary of State must be satisfied that all persons who are to be subject to the duty will be eligible to join a suitable approved redress scheme before the duty applies to them.
For this purpose the Secretary of State may disregard persons who cannot lawfully engage in the relevant estate agency work to which the duty applies.
7
Nothing in this section prevents an approved redress scheme from providing—
a
for membership to be open to persons who are not subject to the duty;
b
for the investigation and determination of any complaints in relation to which the duty does not apply, where the members concerned have voluntarily accepted the jurisdiction of the scheme over those complaints;
c
for the exclusion from investigation and determination under the scheme of any complaint in such cases or circumstances as may be specified in or determined under the scheme.
8
For the purposes of this section—
a
a “redress scheme” is a scheme which provides for complaints against members of the scheme to be investigated and determined by an independent person (“the ombudsman”);
b
a redress scheme is “approved” if—
i
it is for the time being approved by the F131lead enforcement authority under Schedule 3; or
ii
it is administered by or on behalf of the Secretary of State and designated by him as an approved redress scheme for the purposes of this section;
c
a “complaint” is a complaint made by a person by virtue of his being or having been a seller or buyer of residential property;
d
“seller”, in relation to residential property, means a person who claims that he is or may become interested in disposing of an interest in land in respect of that property (and includes a person who disposes of such an interest);
e
“buyer”, in relation to residential property, means a person who claims that he is or may become interested in acquiring an interest in land in respect of that property (and includes a person who acquires such an interest).
9
The Secretary of State may not designate a scheme as an approved redress scheme for the purposes of this section unless the Secretary of State is satisfied that the scheme is one which could be approved by the F132lead enforcement authority in accordance with paragraphs 2 to 5 of Schedule 3.
10
Schedule 3 (which makes further provision in connection with the approval of redress schemes etc.) shall have effect.
11
In this section—
“order” means an order under subsection (1);
“the duty” means the requirement under an order to be a member of an approved redress scheme.
23BEnforcement
1
If a duly authorised officer of an enforcement authority F133... believes that a person has engaged (or is engaging) in estate agency work in relation to residential property in breach of the duty imposed by an order under section 23A(1) he may give a penalty charge notice to that person.
2
A penalty charge notice may not be given after the end of the period of six months beginning with the day (or in the case of a continuing breach the last day) on which the breach of duty was committed.
3
Schedule 4 (which makes further provision in connection with penalty charge notices) shall have effect.
4
23CMeaning of residential property
1
For the purposes of sections 23A and 23B “residential property”—
a
has the meaning given by subsection (2); but
b
does not include land of a description specified in an order made by the Secretary of State for the purposes of this section.
2
“Residential property” means any land that consists of or includes a building or part of a building—
a
the whole or part of which is used as a dwelling or as more than one dwelling; or
b
that is (or is to be) offered for sale on the basis that the whole or part of it is suitable for such use or is intended to be so suitable by the time the seller disposes of his interest in it.
3
In subsection (2), the reference to a building or part of a building (so far as relating to paragraph (b) of that subsection) includes a reference to a building or part that is being or is to be constructed.
4
A description of land specified by order under subsection (1)(b) may be framed by reference to the purpose or purposes for which the land (or part of it) is or is intended to be used.
5
The power to make an order under subsection (1)(b) shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Supervision, enforcement, publicity etc.
24 Supervision by Council on Tribunals.
F121
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F572
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25 General duties of F91the lead enforcement authority
1
Subject to section 26(3) below, it is the duty of the F135lead enforcement authority—
a
generally to superintend the working and enforcement of this Act, and
b
where necessary or expedient, F30itself to take steps to enforce this Act.
2
It is the duty of the F136lead enforcement authority, so far as appears to F31it to be practicable and having regard both to the national interest and the interests of persons engaged in estate agency work and of consumers, to keep under review and from time to time advise the Secretary of State about—
a
social and commercial developments in the United Kingdom and elsewhere relating to the carrying on of estate agency work and related activities; and
b
the working and enforcement of this Act.
3
26 Enforcement authorities.
1
Without prejudice to section 25(1) above, the following authorities (in this Act referred to as “enforcement authorities”) have a duty to enforce this Act—
a
the F138lead enforcement authority,
b
in Great Britain, a local weights and measures authority, and
c
in Northern Ireland, the Department of Commerce for Northern Ireland.
F1931A
For the investigatory powers available to an authority for the purposes of the duty in subsection (1), see Schedule 5 to the Consumer Rights Act 2015.
F332
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Nothing in this section or in section 25 above authorises an enforcement authority to institute proceedings in Scotland for an offence.
4
5
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13
F19427 Obstruction and personation of authorised officers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplementary
28 General provisions as to offences.
1
In any proceedings for an offence under this Act it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of an offence by himself or any person under his control.
2
Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be lible to be proceeded against and punished accordingly.
29 Service of notices etc.
1
Any notice which under this Act is to be given to any person by the F140lead enforcement authority shall be so given—
a
by delivering it to him, or
b
by leaving it at his proper address, or
c
by sending it by post to him at that address.
2
Any such notice may,—
a
in the case of a body corporate or unincorporated association, be given to the secretary or clerk of that body or association; and
b
in the case of a partnership, be given to a partner or a person having the control or management of the partnership business.
3
4
For the purposes of subsections (1) and (2) above and section 7 of the M9Interpretation Act 1978 (service of documents by post) in its application to those subsections, the proper address of any person to whom a notice is to be given shall be his last-known address, except that—
a
in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;
b
in the case of an unincorporated association or their secretary or clerk, it shall be that of the principal office of that association;
c
in the case of a partnership or a person having the control or management of the partnership business, it shall be that of the principal office of the partnership;
and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of an unincorporated association or partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.
5
If the person to be given any notice mentioned in subsection (1) above has specified an address within the United Kingdom other than his proper address, within the meaning of subsection (4) above, as the one at which he or someone on his behalf will accept notices under this Act, that address shall also be treated for the purposes mentioned in subsection (4) above as his proper address.
30 Orders and regulations.
1
Before making any order or regulations under any provision of this Act to which this subsection applies, the Secretary of State shall consult the F142lead enforcement authority, such bodies representative of persons carrying on estate agency work, such bodies representative of consumers and such other persons as he thinks fit.
2
Subsection (1) above applies to paragraphs (a)(iii) and (d) of section 3(1) above and to sections 14, 15, 16, 18, 19 and 22 above.
3
Any power of the Secretary of State to make orders or regulations under this Act—
a
may be so exercised as to make different provision in relation to different cases or classes of cases and to exclude certain cases or classes of case; and
b
includes power to make such supplemental, incidental and transitional provisions as he thinks fit.
31 Meaning of “business associate” and “controller”.
1
The provisions of this section shall have effect for determining the meaning of “business associate” and “controller” for the purposes of this Act.
2
As respects acts done in the course of a business carried on by a body corporate, every director and conroller of that body is a business associate of it.
3
As respects acts done in the course of a business carried on by a partnership, each partner is a business associate of every other member of the partnership and also of the partnership itself and, in the case of a partner which is a body corporate, every person who, by virtue of subsection (2) above, is a business associate of that body is also a business associate of every other member of the partnership.
4
As respects acts done in the course of a business carried on by an unincorporated association, every officer of the association and any other person who has the management or control of its activities is a business associate of that association.
5
In relation to a body corporate “controller” means a person—
a
in accordance with whose directions or instructions the directors of the body corporate or of any other body corporate which is its controller (or any of them) are accustomed to act; or
b
who, either alone or with any associate or associates, is entitled to exercise, or control the exercise of, one third or more of the voting power at any general meeting of the body corporate or of another body corporate which is its controller.
32 Meaning of “associate”.
1
In this Act “associate” includes a business associate and otherwise has the meaning given by the following provisions of this section.
2
A person is an associate of another if he is the spouse F47 or civil partner or a relative of that other or of a business associate of that other.
3
In subsection (2) above “relative” means brother, sister, uncle, aunt, nephew, niece, lineal ancestor or linear descendant, F48... references to a spouse include a former spouse and a F49reputed spouse, and references to a civil partner include a former civil partner F51and a reputed civil partner; and for the purposes of this subsection a relationship shall be established as if an illegitimate child or step-child of a person F50were the legitimate child of the relationship in question .
4
A body corporate is an associate of another body corporate—
a
if the same person is a controller of both, or a person is a controller of one and persons who are his associates, or he and persons who are his associates, are controllers of the other; or
b
if a group of two or more persons is a controller of each company, and the groups either consist of the same persons or could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom he is an associate.
5
An unincorporated association is an associate of another unincorporated association if any person—
a
is an officer of both associations;
b
has the management or control of the activities of both associations; or
c
is an officer of one association and has the management or control of the activities of the other association.
6
A partnership is an associate of another partnership if—
a
any person is a member of both partnerships; or
b
a person who is a member of one partnership is an associate of a member of the other partnership; or
c
a member of one partnership has an associate who is also an associate of a member of the other partnership.
33 General interpretation provisions.
1
In this Act, unless the context otherwise requires,—
“associate” has the meaning assigned to it by section 32 above and “business associate” has the meaning assigned to it by section 31 above;
“client account” has the meaning assigned to it by section 14(2) above;
“client’s money” has the meaning assigned to it by section 12(1) above;
“connected contract”, in relation to the acquisition of an interest in land, has the meaning assigned to it by section 12(4) above;
“contract deposit” has the meaning assigned to it by section 12(2) above;
“controller”, in relation to a body corporate, has the meaning assigned to it by section 31(5) above;
F35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“enforcement authority” has the meaning assigned to it by section 26(1) above;
“estate agency work” has the meaning assigned to it by section 1(1) above;
“general notice” means a notice published by the F143lead enforcement authority at a time and in a manner appearing to F36it suitable for securing that the notice is seen within a reasonable time by persons likely to be affected by it;
F145“the lead enforcement authority” means Powys County Council;
F144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“pre-contract deposit” has the meaning assigned to it by section 12(3) above;
“prescribed fee” means such fee as may be prescribed by regulations made by the Secretary of State;
F14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“unincorporated association” does not include a partnership.
2
The power to make regulations under subsection (1) above prescribing fees shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
34 Financial provisions.
1
There shall be defrayed out of moneys provided by Parliament—
a
any expenses incurred by the Secretary of State in consequence of the provisions of this Act; and
b
any increase attributable to this Act in the sums payable out of moneys so provided under any other Act.
2
Any fees F146paid to the lead enforcement authority under this Act shall be paid into the Consolidated Fund.
35 Scotland.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F15
36 Short title, commencement and extent.
1
This Act may be cited as the Estate Agents Act 1979.
C62
This Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be so appointed for different provisions and for different purposes.
3
This Act extends to Northern Ireland.
SCHEDULES
SCHEDULE 1 Provisions Supplementary to Section 3(1)
Spent convictions
F721
A person is not to be treated for the purposes of section 3(1)(a) of this Act as having committed an offence if he has been convicted of that offence and that conviction is to be treated as spent for the purposes of the Rehabilitation of Offenders Act 1974 or any corresponding enactment for the time being in force in Northern Ireland.
Discrimination
2
F81A person shall be deemed to have committed discrimination for the purposes of section 3(1)(b) of this Act in the following cases only, namely—
a
where a finding of discrimination has been made against him in proceedings under section 66 of the M10Sex Discrimination Act 1975 (in this Schedule referred to as “the 1975 Act”) and the finding has become final;
b
where a non-discrimination notice has been served on him under the 1975 Act and the notice has become final;
c
if he is for the time being subject to the restraints of an injunction or order granted against him in proceedings under section 71 (persistent discrimination) or section 72(4) (enforcement of sections 38 to 40) of the 1975 Act;
d
if, on an application under section 72(2)(a) of the 1975 Act, there has been a finding against him that a contravention of section 38, section 39 or section 40 of that Act has occurred and that finding has become final;
e
where a finding of discrimination has been made against him in proceedings under section 57 of the M11Race Relations Act 1976 (in this Schedule referred to as “the 1976 Act”) and the finding has become final;
f
where a non-discrimination notice has been served on him under the 1976 Act and the notice has become final;
g
if he is for the time being subject to the restraints of an injunction or order granted against him in proceedings under section 62 (persistent discrimination) or section 63(4) (enforcement of sections 29 to 31) of the 1976 Act; or
h
if, on an application under section 63(2)(a) of the 1976 Act, there has been a finding against him that a contravention of section 29, section 30 or section 31 of that Act has occurred and that finding has become final;
and the finding, notice, injunction or order related or relates to discrimination falling within Part III of the 1975 Act or the 1976 Act (discrimination in fields other than employment).
F811
A person commits discrimination for the purposes of section 3(1)(b) in the following cases only.
2
The first case is where—
a
the person has been found to have contravened a relevant equality provision, and
b
no appeal against the finding is pending or can be brought.
3
The second case is where—
a
the person has been given an unlawful act notice under section 21 of the Equality Act 2006,
b
the notice specifies a relevant equality provision as the provision by virtue of which the act in question is unlawful, and
c
no appeal against the giving of the notice is pending or can be brought.
4
The third case is where—
a
the person is the subject of an injunction, interdict or order under section 24 of the Equality Act 2006 (unlawful acts), and
b
the unlawful act in question is a contravention of a relevant equality provision.
5
The relevant equality provisions are—
a
Parts 3 and 4 of the Equality Act 2010 (services and premises) so far as relating to discrimination and victimisation, and
b
section 112 of that Act (aiding contraventions) in relation to either of those Parts of that Act so far as relating to discrimination and victimisation.
3
After the expiry of the period of five years beginning on the day on which any such finding or notice as is referred to in paragraph 2 above became final, no person shall be treated for the purposes of section 3(1)(b) of this Act as having committed F82a contravention of a relevant equality provision by reason only of that finding or notice.
F834
For the purposes of paragraphs 2 and 3 “discrimination” and “victimisation” have the same meaning as in the Equality Act 2010.
5
In the application of paragraphs 2 to 4 above to Northern Ireland references to the 1975 Act shall be construed as references to the M12Sex Discrimination (Northern Ireland) Order 1976, and in particular—
a
the references to sections 38, 39 and 40 of the 1975 Act shall be construed as references to Articles 39, 40 and 41 of that Order;
b
the reference to subsections (1) and (4) of section 82 of the 1975 Act shall be construed as a reference to paragraphs (1), (2) and (5) or Article 2 of that Order; and
c
other references to numbered sections of the 1975 Act shall be construed as references to the Articles of that Order bearing the same number;
F16and there shall be omitted sub-paragraphs (e) to (h) of paragraph 2, sub-paragraph (2) of paragraph 4 and so much of paragraph 3 as relates to findings or notices under the 1976 Act.
F176
In the application of paragraphs 2 to 4 above to Northern Ireland references to the 1976 Act shall be construed as references to the Race Relations (Northern Ireland) Order 1997, and in particular the references to sections 29, 30, 31, 57, 62, 63(2)(a) and (4) and 78(1) and (4) of the 1976 Act shall be construed as references to Articles 29, 30, 31, 54, 59, 60(2)(a) and (4) and 2(2) and (3) respectively of that Order.
SCHEDULE 2 Procedure etc.
Part I Orders and Decisions Under Sections 3, 4 and 6
Introductory
1
In this Schedule—
a
subject to sub-paragraph (2) below, references to “the person affected” are to the person in respect of whom the F147lead enforcement authority proposes to make, or has made, an order under section 3 or section 4 of this Act, or who has made an application under section 6 of this Act for the variation or revocation of such an order; and
b
2
In the case of a proposal of the F149lead enforcement authority to make an order under section 3 or section 4 of this Act against a partnership where, by virtue of section 5(2) of this Act, F37it intends that the order shall have effect as an order against some or all of the partners individually, references in the following provisions of this Schedule to the person affected shall be construed, except where the contrary is provided, as references to each of the partners affected by the order, as well as to the partnership itself.
Notice of proposal
2
1
2
In the case of a proposal to make an order, the notice under sub-paragraph (1) above shall inform the person affected of the substance of the proposed order and, in the case of a proposal to make an order under section 3 of this Act, shall—
a
set out those matters falling within subsection (1) of that section which the F152lead enforcement authority intends should be specified as the grounds for the order, and
b
specify any other matters of which the F152lead enforcement authority has taken account under subsection (2) of that section, and
c
if the F152lead enforcement authority proposes to rely on section 4(3) of this Act to establish the unfitness of the person affected, state that fact.
3
The notice given under sub-paragraph (1) above shall invite the person affected, within such period of not less than twenty-one days as may be specified in the notice—
a
to submit to the F153lead enforcement authority his representations in writing as to why the order should not be made or, as the case may be, should be varied or revoked in accordance with the application, and
b
to give notice to the F153lead enforcement authority, if he thinks fit, that he wishes to make such representations orally,
and where notice is given under paragraph (b) above the F153lead enforcement authority shall arrange for the oral representations to be heard.
Hearing of representations
3
Where the F154lead enforcement authority receives notice under paragraph 2(3)(b) above F38it shall give the person affected not less than twenty-one days’ notice, or such shorter notice as the person affected may consent to accept, of the date, time and place at which his representations are to be heard.
4
1
In the course of the hearing of oral representations the F155lead enforcement authority shall, at the request of the person affected, permit any other person (in addition to the person affected) to make representations on his behalf or to give evidence or to introduce documents for him.
2
The F156lead enforcement authority shall not refuse to admit evidence solely on the grounds that it would not be admissible in a court of law.
5
Decision
6
1
2
3
In any case where—
a
a notice under paragraph 2 above gives more than one reason for the proposal or (in the case of a proposal to make an order under section 3 of this Act) sets out more than one matter which the F186lead enforcement authority intends should be specified as the grounds for the order, and
b
it appears to the F186lead enforcement authority that one or more of those reasons should be abandoned or, as the case may be, that one or more of those matters should not be so specified,
7
If the F160lead enforcement authority decides not to proceed with F41its proposal F41it shall give notice of that decision to the person affected and, in the case of a notice of a decision on an application under section 6 of this Act, such a notice shall be combined with a notice under subsection (3) of that section.
8
If the F161lead enforcement authority decides to proceed with F42its proposal F42it may, if F42it thinks fit having regard to any representations made to F42it —
a
where the proposal is for the making of an order, make the order in a form which varies from that of the proposed order mentioned in the notice under paragraph 2 above, or
b
where the proposal is to vary an order, make a variation other than that mentioned in the notice under paragraph 2 above, or
c
where the proposal is to refuse to revoke an order, vary the order.
Notification of decision
9
1
Notice of the decision to make the order, and of the terms of the order or, as the case may be, notice of the decision on the application for variation or revocation of the order, shall be given to the person affected, together with the F162lead enforcement authority’s reasons for F43its decision, including the facts which in F43its opinion justify the decision.
2
The notice referred to in sub-paragraph (1) above shall also inform the person affected of his right to appeal against the decision and of the period within which an appeal may be brought and of how notice of appeal may be given.
10
1
Subject to sub-paragraph (2) below, the order to which the decision relates or, as the case may be, any variation of an order for which the decision provides shall not come into operation until any appeal under section 7(1) of this Act and any further appeal has been finally determined or the period within which such an appeal may be brought has expired.
2
Part II Applications Under Sections 6(1) and 8(3)
11
Any reference in this Part of this Schedule to an application is a reference to an application to the F164lead enforcement authority under section 6(1) or section 8(3) of this Act, and any reference to the applicant shall be construed accordingly.
12
An application shall be in writing and be in such form and accompanied by such particulars as the F165lead enforcement authority may specify by general notice.
13
The F166lead enforcement authority may by notice require the applicant to publish details of his application at a time or times and in a manner specified in the notice.
14
If an application does not comply with paragraph 12 above or if an applicant fails to comply with a notice under F195 paragraph 14 of Schedule 5 to the Consumer Rights Act 2015 requiring the furnishing of information F196... in connection with the application, the F167lead enforcement authority may decline to proceed with the application.
F55SCHEDULE 3Redress Schemes
Sch. 3 inserted (12.10.2007) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 6 para. 3; S.I. 2007/2934, art. 3, Sch.
Approval of redress schemes
1
A redress scheme may be approved for the purposes of section 23A by the F168lead enforcement authority acting in accordance with paragraphs 2 to 8.
2
1
A scheme may not be approved unless the F169lead enforcement authority considers that—
a
the provisions of the scheme; and
b
the manner in which it will be operated (so far as can be judged from facts known to the authority);
are satisfactory for the purposes of section 23A.
2
Without prejudice to the generality of sub-paragraph (1), a scheme must not be approved unless the F170lead enforcement authority considers that it makes satisfactory provision about—
a
the complaints which may be made under the scheme (which may include complaints about non-compliance with the provisions of a code of practice or other document);
b
the ombudsman's duties and powers in relation to the investigation and determination of complaints (which may include power to decide not to investigate or determine a particular complaint);
c
the redress which the ombudsman may require members to provide to complainants, which must include the types of redress specified in sub-paragraph (3);
d
the enforcement of any requirement to provide redress imposed on a member in accordance with the scheme.
3
The types of redress mentioned in sub-paragraph (2)(c) are—
a
providing an apology or explanation;
b
paying compensation; and
c
taking such other actions in the interests of the complainant as the ombudsman may specify.
3
1
In determining whether a scheme, or any provisions mentioned in paragraph 2(2), are satisfactory the F171lead enforcement authority must have regard to—
a
the interests of members of the scheme and of sellers and buyers of residential properties; and
b
such principles as—
i
in the opinion of the F171lead enforcement authority constitute generally accepted principles of best practice in relation to consumer redress schemes, and
ii
it is reasonable to regard as applicable to the scheme.
2
In considering the interests mentioned in sub-paragraph (1)(a), the F172lead enforcement authority may have regard to the number of other redress schemes which are (or are likely to become) approved redress schemes.
4
The F173lead enforcement authority must not approve a scheme unless it considers that the scheme makes satisfactory provision about the provision of information by the ombudsman or the scheme administrator to—
a
persons exercising functions under other approved schemes;
b
persons exercising functions under other consumer redress schemes; and
c
the F173lead enforcement authority or any other person exercising regulatory functions in relation to the activities of persons engaging in estate agency work.
5
The F174lead enforcement authority must not approve a scheme if it considers that the scheme provides for membership to be revoked on any unfair grounds.
Applications for approval to the F93lead enforcement authority
Words in Sch. 3 para. 6 cross-heading substituted (31.3.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(5), Sch. 2 para. 1(14)(f) (with Sch. 1 para. 28, 2 paras. 13-15)
6
An application for approval by the F175lead enforcement authority of a redress scheme must—
a
be made in such manner as the F175lead enforcement authority may determine; and
b
be accompanied by such information as the F175lead enforcement authority may require.
7
Where the F176lead enforcement authority is proposing to refuse an application for approval it must give the applicant a notice stating—
a
that it is proposing to refuse the application;
b
the grounds for the proposed refusal; and
c
that representations about the proposed refusal may be made within such period of not less than 30 days as is specified in the notice.
8
If the F177lead enforcement authority decides to refuse an application for approval, it must give the applicant a notice stating—
a
the F177lead enforcement authority’s decision to refuse the application; and
b
the reasons for the decision.
Notification of changes to an approved scheme
9
Withdrawal of approval by the F94lead enforcement authority
Words in Sch. 3 para. 10 cross-heading substituted (31.3.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(5), Sch. 2 para. 1(14)(k) (with Sch. 1 para. 28, 2 paras. 13-15)
10
The F179lead enforcement authority may withdraw approval of a redress scheme which is for the time being approved by it.
11
Before withdrawing approval of a scheme, the F180lead enforcement authority must give the scheme administrator a notice stating—
a
that it proposes to withdraw its approval;
b
the grounds for the proposed withdrawal of approval; and
c
that representations about the proposed withdrawal may be made within such period of not less than 30 days as is specified in the notice.
12
The F181lead enforcement authority must give the scheme administrator a notice stating—
a
its decision on a proposal to withdraw approval; and
b
the reasons for its decision.
13
If the F182lead enforcement authority decides to withdraw approval of a scheme—
a
the withdrawal has effect from such date as may be specified in the notice under paragraph 12;
b
the scheme administrator must give a copy of the notice under paragraph 12 to every member of the scheme.
Revocation of designation by the Secretary of State
14
If the Secretary of State decides to revoke his designation of a scheme for the purposes of section 23A, he must give every member of the scheme a notice stating—
a
that he has decided to revoke the designation;
b
the reasons for his decision; and
c
the date from which the revocation has effect.
Defamation proceedings
15
For the purposes of the law relating to defamation, proceedings under an approved redress scheme in relation to the investigation and determination of a complaint are to be treated in the same way as proceedings before a court.
Interpretation
16
In this Schedule—
“redress scheme” has the meaning given in section 23A(8)(a);
“approved redress scheme” has the meaning given in section 23A(8)(b);
“buyer”, in relation to residential property, has the meaning given in section 23A(8)(e);
“complaint” has the meaning given in section 23A(8)(c);
“ombudsman” means the independent person mentioned in section 23A(8)(a);
“residential property” has the meaning given in section 23C;
“scheme administrator”, in relation to a redress scheme, means the person who administers the scheme;
“seller”, in relation to residential property, has the meaning given by section 23A(8)(d).
F56SCHEDULE 4Penalty notices under section 23B(1)
Sch. 4 inserted (12.10.2007) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 6 para. 4; S.I. 2007/2934, art. 3, Sch.
1
A penalty charge notice given to a person under section 23B(1) by a duly authorised officer of an enforcement authority F183... must—
a
state the officer's belief that that person has committed a breach of the duty imposed by an order under section 23A(1);
b
give such other particulars of the circumstances as may be necessary to give reasonable notice of the breach of duty;
c
require that person, within a period specified in the notice—
i
to pay a penalty charge specified in the notice; or
ii
to give notice to the enforcement authority that he wishes to review the notice;
d
state the effect of paragraph 8;
e
specify the person to whom and the address at which the penalty charge may be paid and the method or methods by which payment may be made; and
f
specify the person to whom and the address at which a notice requesting a review may be sent (and to which any representations relating to the review may be addressed).
2
The penalty charge specified in the notice shall be of such amount (not exceeding £1,000) as may be prescribed for the time being by regulations made by the Secretary of State.
3
1
The period specified under paragraph 1(c) must not be less than 28 days beginning with the day after that on which the penalty charge notice was given.
2
The enforcement authority may extend the period for complying with the requirement mentioned in paragraph 1(c) in any particular case if they consider it appropriate to do so.
4
The enforcement authority may, if they consider that the penalty charge notice ought not to have been given, give the recipient a notice withdrawing the penalty charge notice.
5
1
If, within the period specified under paragraph 1(c) (or that period as extended under paragraph 3(2)), the recipient of the penalty charge notice gives notice to the enforcement authority requesting a review, the authority shall—
a
consider any representations made by the recipient and all other circumstances of the case;
b
decide whether to confirm or withdraw the notice; and
c
give notice of their decision to the recipient.
2
A notice under sub-paragraph (1)(c) confirming the penalty charge notice must also state the effect of paragraphs 6(1) to (3) and 8(1) and (3).
3
If the authority are not satisfied—
a
that the recipient committed the breach of duty specified in the notice;
b
that the notice was given within the time allowed by section 23B(2) and complies with the other requirements imposed by or under this Schedule; and
c
that in the circumstances of the case it was appropriate for a penalty charge notice to be given to the recipient;
they shall withdraw the penalty charge notice.
6
1
If after a review the penalty charge notice is confirmed by the enforcement authority, the recipient may, within the period of 28 days beginning with the day after that on which the notice under paragraph 5(1)(c) is given, appeal F187 in England and Wales to the county court or, in Northern Ireland, to a county court or, in Scotland, to the sheriff against the penalty charge notice.
2
The county court or the sheriff may extend the period for appealing against the notice.
3
Such an appeal must be on one (or more) of the following grounds—
a
that the recipient did not commit the breach of duty specified in the penalty charge notice;
b
that the notice was not given within the time allowed by section 23B(2) or does not comply with any other requirement imposed by or under this Schedule; or
c
that in the circumstances of the case it was inappropriate for the notice to be given to the recipient.
4
An appeal against a penalty charge notice shall be by way of a rehearing; and the county court or sheriff shall either uphold the notice or quash it.
7
If the penalty charge notice is withdrawn or quashed, the authority shall repay any amount previously paid as a penalty charge in pursuance of the notice.
8
1
The amount of the penalty charge is recoverable from the recipient of the penalty charge notice as a debt owed to the authority unless—
a
the notice has been withdrawn or quashed; or
b
the charge has been paid.
2
Proceedings for the recovery of the penalty charge may not be commenced before the end of the period mentioned in paragraph 5(1).
3
And if within that period the recipient of the penalty charge notice gives notice to the authority that he wishes the authority to review the penalty charge notice, such proceedings may not be commenced—
a
before the end of the period mentioned in paragraph 6(1); and
b
where the recipient appeals against the penalty charge notice, before the end of the period of 28 days beginning with the day on which the appeal is withdrawn or determined.
9
In proceedings for the recovery of the penalty charge, a certificate which—
a
purports to be signed by or on behalf of the person having responsibility for the financial affairs of the enforcement authority; and
b
states that payment of the penalty charge was or was not received by a date specified in the certificate;
is evidence of the facts stated.
10
Section 29 (service of notices etc.) applies in relation to—
a
any penalty charge notice which is to be given under section 23B(1) by a duly authorised officer of an enforcement authority F184... ; and
b
any notice which is to be given under paragraph 5(1)(c) of this Schedule by such an enforcement authority;
as it applies in relation to any notice which under this Act is to be given to any person F185by the lead enforcement authority.
11
The Secretary of State may by regulations make provision supplementary or incidental to the provisions of this Schedule, including in particular provision prescribing—
a
the form of penalty charge notices or of any other notice mentioned in this Schedule;
b
circumstances in which penalty charge notices may not be given;
c
the method or methods by which penalty charges may be paid.
12
Any power to make regulations under this Schedule shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Act not in force at Royal Assent see s. 36(2); Act partly in force at 3. 5. 1982 see S.I. 1981/1517.