Application of Act
1C1 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—
C2a
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 M2F147Planning (Northern Ireland)
F5Order 1991F147Planning 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).
F854
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—
C3a
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.
C42 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 F87the lead enforcement authority
3 Orders prohibiting unfit persons from doing estate agency work.
1
The power of F17the F90lead enforcement authority to make an order under this section with respect to any person shall not be exercisable unless the F91lead enforcement authority is satisfied that that person—
a
F60 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
F59ba
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
F57ca
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
F58cb
has failed to comply with any requirement imposed on him under section 9(1) or 11(1A)(b) below; 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 F92lead enforcement authority is satisfied that any person is unfit to carry on estate agency work generally or of a particular description F18it 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 F92lead 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 F61 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 F95lead 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.
F621
If the F96lead 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 F97lead 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 F98lead 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 F99lead 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 F100lead enforcement authority, F64further 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 F65engages 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 F101lead enforcement authority may proceed to make an order under section 3 above accordingly.
F634
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 F102lead 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 F103lead enforcement authority under section 3 or section 4 above against a partnership, it may, if the F103lead 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 F104lead enforcement authority under section 3 above.
F664
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In any case where—
a
an order of the F105lead 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 F107lead enforcement authority decides to accede to an application under subsection (1) above, F22it shall give notice in writing of F21its 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 F108lead enforcement authority may decide to refuse an application under subsection (1) above—
a
where it relates to an order under section 3 above, if F22it 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 F109lead enforcement authority decides that—
a
F22it cannot accede to the application because F22it 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 F109lead 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 F110lead 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 F110lead 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.
F687
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C87 Appeals.
C91
A person who receives notice under paragraph 9 of Schedule 2 to this Act of—
a
a decision of the F111lead enforcement authority to make an order in respect of him under section 3 or section 4 above, or
b
a decision of the F111lead 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 F72First-tier Tribunal.
2
F763
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F764
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F765
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F766
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F113lead enforcement authority may, of F24its 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 F115lead enforcement authority and to take copies of any entry, or
6
A certificate given by the F116lead 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 F86lead enforcement authority
1
a
to determine whether to make an order under section 3 or section 4 above, and
b
in the exercise of any of F27its functions under sections 5, 6 and 8 above and 13 and 17 below,
2
A notice under this section—
a
may specify the way in which and the time within which it is to be complied with and, in the case of a notice requiring the production of documents, the facilities to be afforded for making extracts, or taking copies of, the documents; and
b
may be varied or revoked by a subsequent notice.
3
Nothing in this section shall be taken to require a person who has acted as counsel or solicitor for any person to disclose any privileged communication made by or to him in that capacity.
4
A person who—
F69a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
in furnishing any information in compliance with F70 a notice under this section, makes any statement which he knows to be false in a material particular or recklessly makes any statement which is false in a material particular, or
c
with intent to deceive, produces in compliance with such a notice a document which is false in a material particular,
shall be liable on conviction on indictment or on summary conviction to a fine which, on summary conviction, shall not exceed the statutory maximum.
F375
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
It shall be the duty of—
F45a
the Equal Opportunities Commission,
F45a
the Commission for Equality and Human Rights, and
b
the Equal Opportunities Commission for Northern Ireland, F46and
c
the Commission for Racial Equality,
to furnish to the F118lead 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 F118lead enforcement authority under this Act.
9AF89Notice 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.
F3810 Restriction on disclosure of information.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11 Powers of entry and inspection.
F521
If a duly authorised officer of an enforcement authority (“an officer”) has reasonable cause to suspect—
a
that an offence has been committed under this Act;
b
that a person has failed to comply with an obligation imposed on him under any of sections 15 and 18 to 21A; or
c
that a person has engaged in a practice mentioned in section 3(1)(d);
he may, in order to ascertain whether the offence has been committed, whether the person has failed to comply with the obligation or whether the person has engaged in the practice (as the case may be), exercise any power specified in subsection (1A).
1A
The powers are—
a
to enter any premises (other than premises used only as a dwelling);
b
to require—
i
any person carrying on, or employed in connection with, a business to produce any books or document relating to it, or
ii
any person having control of any information relating to a business which is stored in any electronic form to produce the information in a form in which it can be taken away and in which it is visible and legible (or from which it can readily be produced in a visible and legible form);
c
to take copies of, or of any entry in, any books or documents produced or provided in pursuance of a requirement imposed under paragraph (b).
1B
An officer may seize and detain any books or documents which he has reason to believe may be required as evidence—
a
in proceedings for an offence under this Act; or
b
in proceedings under any of sections 3, 4, 6 or 7 relating to an allegation—
i
that an offence has been committed under this Act;
ii
that a person has failed to comply with an obligation imposed on him under any of sections 15 and 18 to 21A; or
iii
that a person has engaged in a practice mentioned in section 3(1)(d).
1C
If it is not reasonably practicable to exercise any power under subsection (1A)(c) to take a copy of, or of any entry in, a book or document, an officer may seize and detain the book or document for the purpose of inspecting it (or any entry in it).
1D
A book or document which is seized in exercise of the power under subsection (1C) must be returned to the person from whom it was seized unless an officer has reason to believe that the book or document may be required as evidence in any proceedings mentioned in subsection (1B).
1E
Any power conferred by subsection (1) to (1C) may be exercised at all reasonable hours.
1F
An officer exercising any such power must, if required, produce his credentials.
2
An officer seizing books or documents in exercise of his powers under this section shall not do so without informing the person from whom he seizes them.
C73
If and so long as any books or documents which have been seized under this section are not required as evidence in connection with proceedings which have been begun for an offence under this Act, the enforcement authority by whose officer they were seized shall afford to the person to whom the books or documents belong and to any person authorised by him in writing reasonable facilities to inspect them and to take copies of or make extracts from them.
F534
An appropriate judicial officer may, by warrant under his hand, authorise an officer of an enforcement authority to enter any premises, by force if need be, if on sworn information in writing or, in Scotland, on evidence on oath the appropriate judicial officer—
a
is satisfied that there is reasonable ground to believe that either of the conditions in subsection (4A) applies; and
b
is also satisfied that at least one of the conditions in subsection (4B) applies.
4A
The conditions in this subsection are—
a
that any books or documents which a duly authorised officer has power to inspect under this section are on the premises and their inspection is likely to disclose evidence—
i
that an offence has been committed under this Act;
ii
that a person has failed to comply with an obligation imposed on him under any of sections 15 and 18 to 21A; or
iii
that a person has engaged in a practice mentioned in section 3(1)(d);
b
that an offence under this Act has been, is being or is about to be committed on the premises.
4B
The conditions in this subsection are—
a
that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under subsection (4) has been given to the occupier;
b
that an application for admission, or the giving of such a notice of intention, would defeat the object of the entry;
c
that the premises are unoccupied;
d
that the occupier is temporarily absent and it might defeat the object of the entry to wait for his return.
4C
A warrant issued under subsection (4) shall continue in force for a period of one month.
4D
In subsection (4) “appropriate judicial officer” means—
a
in England and Wales, a justice of the peace;
b
in Scotland, the sheriff or a justice of the peace;
c
in Northern Ireland, a lay magistrate.
5
An officer entering premises by virtue of this section may take such other persons and equipment with him as he thinks necessary, and on leaving premises entered by virtue of a warrant under subsection (4) above shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them.
F1196
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1207
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C58
Nothing in this section shall be taken to require a person who has acted as F78 a relevant lawyer for any person to produce a document containing a privileged communication made by or to him in that capacity or authorises the seizing of any such document in his possession.
F779
For the purposes of subsection (8) “relevant lawyer” means counsel, a solicitor or other legal representative communications with whom may be the subject of a claim to privilege.
11AF51Failure to produce information
1
If on an application made by a duly authorised officer of an enforcement authority it appears to the court that a person (“the defaulter”) has failed to do something that he is required to do by virtue of section 9(1) or 11(1A)(b) the court may make an order under this section.
2
An order under this section may require the defaulter—
a
to do the thing that it appears he failed to do within such period as may be specified in the order;
b
otherwise to take such steps to remedy the consequences of the failure as may be so specified.
3
If the defaulter is a body corporate, a partnership or an unincorporated association, the order may require any officer who is (wholly or partly) responsible for the failure to meet such costs of the application as are specified in the order.
4
In this section—
“court” means—
“officer” means—
- a
in relation to a body corporate, a person holding a position of director, manager or secretary of the body or any similar position;
- b
in relation to a partnership or an unincorporated association, a member of the partnership or association.
- a
5
In subsection (4) “director” means, in relation to a body corporate whose affairs are managed by its members, a member of the body.
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 F121lead 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 F49eligible 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 F50prohibited 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 F122lead 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 F123lead 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 F125lead 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 F126lead 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 F127lead 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 F128lead 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 adjudged 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.
F811A
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
the adjudication of bankruptcy against him is annulled, or, in Scotland, the sequestration of his estate is recalled F10or reduced; or
F11b
he is discharged from bankruptcy.
F822A
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
F83The 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 F84of 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.
F47Redress 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 F129lead 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 F130lead 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 F131... 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
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F482
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25 General duties of F88the lead enforcement authority
1
Subject to section 26(3) below, it is the duty of the F133lead 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 F134lead 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 F136lead enforcement authority,
b
in Great Britain, a local weights and measures authority, and
c
in Northern Ireland, the Department of Commerce for Northern Ireland.
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
27 Obstruction and personation of authorised officers.
1
Any person who—
a
wilfully obstructs an authorised officer, or
F55b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
without reasonable cause fails to give an authorised officer F56 any assistance or information he may reasonably require in performing his functions under this Act, or
d
in giving information to an authorised officer, makes any statement which he knows to be false,
shall be liable on summary conviction to a fine not exceeding F14level 4 on the standard scale.
F541A
A failure to give assistance or information shall not constitute an offence under subsection (1)(c) if it is also a failure in relation to which an authorised officer may apply for an order under section 11A above.
2
A person who is not an authorised officer but purports to act as such shall be liable on summary conviction to a fine not exceeding F14level 5 on the standard scale.
3
In this section “authorised officer” means a duly authorised officer of an enforcement authority who is acting in pursuance of this Act.
4
Nothing in subsection (1) above requires a person to answer any question or give any information if to do so might incriminate that person or that person’s F39spouse or civil partner .
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 F138lead 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 F140lead 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 F40 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, F41... references to a spouse include a former spouse and a F42reputed spouse, and references to a civil partner include a former civil partner F44and 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 F43were 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 F141lead 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;
F143“the lead enforcement authority” means Powys County Council;
F142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“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;
F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“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 F144paid to the lead enforcement authority under this Act shall be paid into the Consolidated Fund.
35 Scotland.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16
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.
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)