Housing Act 2004

Supplementary

171 Application of Part to sub-divided buildings

(1) This section applies where—

(a) two or more dwelling-houses in a sub-divided building are marketed for sale (with any ancillary land) as a single property; and

(b) any one or more of those dwelling-houses—

(i) is not available for sale (with any ancillary land) as a separate residential property; but

(ii) is available with vacant possession.

(2) This Part applies to the dwelling-houses mentioned in subsection (1)(a) (with any ancillary land) as if—

(a) they were a residential property, and

(b) section 160 were omitted.

(3) Subsection (2) does not affect the application of this Part to any of those dwelling-houses which is available for sale (with any ancillary land) as a separate residential property.

(4) In this section “sub-divided building” means a building or part of a building originally constructed or adapted for use as a single dwelling which has been divided (on one or more occasions) into separate dwelling-houses.

172 Power to require estate agents to belong to a redress scheme

(1) The Secretary of State may by order require every estate agent to be a member of an approved redress scheme.

(2) Acting as estate agent for the seller of a residential property in contravention of such an order is a breach of duty under this Part.

(3) Before making such an order the Secretary of State must be satisfied that he has approved one or more redress schemes such that every estate agent who is (or will be) subject to the duty imposed by the order is eligible to join an approved redress scheme.

For this purpose “estate agent” does not include a person who is (by virtue of a prohibition imposed by or under the Estate Agents Act 1979 (c. 38)) unable lawfully to act as estate agent for the seller of a residential property.

(4) An order under this section may—

(a) exclude estate agents of a prescribed description from any duty imposed under subsection (1);

(b) limit any duty so imposed so that it applies only in relation to relevant complaints of a prescribed description.

(5) Nothing in this section is to be taken as preventing an approved redress scheme from providing—

(a) for membership to be open to persons who are not subject to any duty to belong to an approved redress scheme;

(b) for the investigation and determination of complaints, other than those in relation to which such a duty applies, made against members who have voluntarily accepted the jurisdiction of the scheme over such 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 the scheme.

(6) In this section and sections 173 and 174—

• “approved redress scheme” means a redress scheme that is for the time being approved under section 173;

• “estate agent” means a person who acts as estate agent for sellers of residential properties for which a home information pack is (or will be) required under this Part;

• “redress scheme” means a scheme under which certain relevant complaints may be investigated and determined by an independent person (referred to in those sections as “the ombudsman”); and

• “relevant complaint” means a complaint against an estate agent which—

  (a)

  is made by a person who at the material time is the seller or a potential buyer of a residential property; and

  (b)

  relates to an act or omission affecting the complainant in the course of the estate agent’s activities in relation to a home information pack that is (or will be) required for that property (including the giving of advice as to whether such a pack is required).

(7) 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 which is subject to an order under this section are to be treated in the same way as proceedings before a court.

173 Approval of redress schemes

(1) If the Secretary of State considers that a redress scheme (including one made by him or in pursuance of arrangements made by him) is satisfactory for the purposes of section 172, he may approve it for those purposes.

(2) In determining whether a redress scheme is satisfactory the Secretary of State shall have regard to—

(a) the provisions of the scheme;

(b) the manner in which the scheme will be operated (so far as can be judged from the facts known to him); and

(c) the respective interests of members of the scheme and of sellers and potential buyers of residential properties.

(3) A redress scheme may not be approved unless it makes satisfactory provision about the following matters (among other things)—

(a) the matters about which complaints may be made (which may include 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 complaint);

(c) the provision of information by the ombudsman to—

(i) persons exercising functions under other schemes providing a means of redress for consumers; and

(ii) the Secretary of State or any other person exercising regulatory functions in relation to the activities of estate agents.

(4) An application for approval of a redress scheme shall be made in such manner as the Secretary of State may determine, accompanied by such information as the Secretary of State may require.

(5) The person administering an approved redress scheme shall notify the Secretary of State of any change to the scheme as soon as practicable after the change is made.

174 Withdrawal of approval of redress schemes

(1) The Secretary of State may withdraw his approval of a redress scheme.

(2) But before withdrawing his approval, the Secretary of State shall serve on the person administering the scheme a notice stating—

(a) that he proposes to withdraw his 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 14 days as is specified in the notice.

(3) The Secretary of State shall give notice of his decision on a proposal to withdraw approval, with his reasons, to the person administering the scheme.

(4) Withdrawal of approval has effect from such date as may be specified in that notice.

(5) The person administering the scheme shall give a copy of a notice under subsection (3) to every member of the scheme.

175 Office of Fair Trading

(1) An enforcement authority may notify the Office of Fair Trading of any breach of duty under this Part appearing to the authority to have been committed by a person acting as estate agent.

(2) An enforcement authority shall notify the Office of Fair Trading of—

(a) any penalty charge notice given by an officer of the authority under section 168;

(b) any notice given by the authority confirming or withdrawing a penalty charge notice; and

(c) the result of any appeal from the confirmation of a penalty charge notice.

(3) The Estate Agents Act 1979 (c. 38) applies in relation to a person who has committed a breach of duty under this Part in the course of estate agency work (within the meaning of that Act) as it applies in relation to a person who has engaged in a practice such as is mentioned in section 3(1)(d) of that Act in the course of such work.

176 Grants

(1) The Secretary of State may make grants towards expenditure incurred by any person in connection with—

(a) the development of proposals for any provision to be made by regulations under section 163;

(b) the development of schemes which are intended to be certification schemes for the purposes of any provision made or expected to be made in regulations under section 163 by virtue of section 164; or

(c) the development of a register for the purposes of any provision made or expected to be made in regulations under section 163 by virtue of section 165.

(2) A grant under this section may be made on conditions, which may include (among other things)—

(a) conditions as to the purposes for which the grant or any part of it may be used; and

(b) conditions requiring the repayment of the grant or any part of it in such circumstances as may be specified in the conditions.

177 Interpretation of Part 5

(1) In this Part—

• “ancillary land”, in relation to a dwelling-house or a sub-divided building, means any land intended to be occupied and enjoyed together with that dwelling-house or building;

• “long lease” means—

  (a)

  a lease granted for a term certain exceeding 21 years, whether or not it is (or may become) terminable before the end of that term by notice given by the tenant or by re-entry or forfeiture; or

  (b)

  a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal, other than a lease by sub-demise from one which is not a long lease;

  and for this purpose “lease” does not include a mortgage term;

• “potential buyer” means a person who claims that he is or may become interested in buying a residential property;

• “sale”, in relation to a residential property, means a disposal, or agreement to dispose, by way of sale of—

  (a)

  the freehold interest;

  (b)

  the interest under a long lease;

  (c)

  an option to acquire the freehold interest or the interest under a long lease;

  and “seller” means a person contemplating disposing of such an interest (and related expressions shall be construed accordingly).

(2) Any reference in the definition of “sale” to the disposal of an interest of a kind mentioned in that definition includes a reference to the creation of such an interest.

(3) A document which is not in electronic form is only to be regarded for the purposes of this Part as being under the control of a person while it is in the possession of another if he has the right to take immediate possession of the document on demand (and without payment).

(4) A document held in electronic form is only to be regarded for the purposes of this Part as being in a person’s possession or under his control if he is readily able (using equipment available to him)—

(a) to view the document in a form that is visible and legible; and

(b) to produce copies of it in a visible and legible documentary form.

178 Index of defined expressions: Part 5

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions inserted in the right-hand column.

Expression	Provision of this Act
Acting as estate agent for the seller	Section 150
Ancillary land	Section 177(1)
Control of documents	Section 177(3) and (4)
Dwelling-house	Section 148(1)
Enforcement authority	Section 166
Home information pack	Section 148(2)
Long lease	Section 177(1)
Make public	Section 149(4)
Possession of electronic documents	Section 177(4)
Potential buyer	Section 177(1)
Putting on the market	Section 149(2)
Remaining on the market	Section 149(3)
Residential property	Section 148(1)
Responsible person	Section 151(1)
Sale (and related expressions)	Section 177(1)
Seller (and related expressions)	Section 177(1)
The market	Section 149(1).