Mr. Don Foster: The hon. Gentleman might care to reflect on the odd circumstances resulting from the Minister's earlier reassurance. A family living in a council house for 20 or more years would, even though it knew the property intimately, as described by the right hon. Member for Skipton and Ripon (Mr. Curry), still have to work through the system of sellers' packs because of the possibility that faults might be discovered. However, there would be no requirement for a seller's pack when a home is sold to a family member or friend who may not have lived in the property for any time at all and may have significantly less knowledge of it than the council house tenant.
Mr. Waterson: The hon. Gentleman makes a telling point, which I cannot answer. Fortunately, I do not need to because I am not the Minister, whose response would be good to hear. It is one of the contradictions that could be created in English law if we go down this route. I can quite understand why the Minister has felt pushed inexorably towards excluding people. Exclusions will be one of the big problems in the Bill, whether of areas, bands of properties, types of transactions and so on. It is rather like the A and B list argument, which we will all learn to dread in due course. It is an almost totally circular argument. Whenever one excludes someone, by definition there is a problem about who is in and who is out.
Mr. Clifton-Brown: We are in the business of producing good law that has as few defects as possible. Would it not make sense therefore to ask the Minister to have as few exemptions and exceptions as possible? In that connection, would it not make sense that if a seller's pack has to be provided under the terms of the Bill, it should be provided up to the point at which a legal contract becomes binding?
Mr. Waterson: That is one solution to the problem. My hon. Friend has come up with quite a good way around many of these problems. The better way out of it is simply not to make seller's packs compulsory. That is something to which we shall return in more detail. They should be optional. We shall shortly come to amendments that suggest that that might be possible and make it abundantly clear that sales are proceeding without seller's packs.
Consider the man in the pub, the fabled resident of 74 Acacia avenue. Even a brief and superficial canter down that line of debate produces some strange anomalies. Yes, in the unlikely event that this gentleman stood on a stool and announced to everyone in the bar that his property was for sale or might be for sale, he would be caught. But presumably he would not be caught if he did so in the bar when there was only one other customer. My example of him sidling up to individuals as the evening wore on, giving them his sales patter and finally doing a deal might or might not be caught. Would it count if he were having an idle conversation with a friend who had no intention of buying his property, but someone else overheard? What if that conversation were overheard by someone else who informed on him to the conveyancing gestapo who came around to arrest him for breaking the law?
This is nonsense in the context of ordinary people going about their ordinary lives, trying to enter into contracts freely under English law. It is nonsense that criminal sanctions will be enforced by hard-pressed trading standards officers across the country. It is nonsense that someone might be caught simply because of the slightly different circumstances in which the conversation took place in the pub and which could lead to all sorts of difficulties, not to mention a criminal sanction. On all those grounds, subject to any other comments, we are not minded to withdraw the amendment. I am minded to press it to a vote.
Mr. Loughton: I endorse everything that my hon. Friend has said. I should like to elaborate a few points that I made in interventions that the Minister did not answer satisfactorily. He said that there were a lot of fuzzy edges. That was to understate it enormously. The more we debate clause 1, the more of a black hole it turns out to be. When the Minister used the example of the property being offered to a family member, a friend or another individual as he put it, it opened the most enormous can of worms. I was expecting the Minister to use the precedent of the definition of the associate, as laid out in the Estate Agents Act 1979 and I gather from professional bodies that it may repay some revisiting. The definition of friend or another individual is certainly fraught with problems.
We talked about the problems of trust funds holding property. I genuinely think that the Minister misunderstood the nature of the trust funds that I was trying to describe. It is a complex area and we are not experts on it. I have acted as a professional trustee in my previous life. I am still a trustee of both family funds and non-connected funds. I act as a trustee, jointly with other professional trusteesa solicitor, for exampleof a trust fund that was endowed by a deceased grandmother for her three grandchildren. It is up to us how we administer that trust fund within the terms of the trust deed, but it is clear that the two connecting parts of that trust were the grandmother and the three grandchildren, who constitute family in any definition of the word. It was envisaged, as part of that trust deed, that the trustees would own property or make grants in order to buy property. My understanding of what the Minister said is that we would not gain an exemption under the definition of family because the trustees are not family members and would not, in the strict term, constitute friends of the beneficiaries.
Mr. Raynsford: On my first understanding of the hon. Gentleman's example, when I understood the hon. Gentleman to be talking about a trustee acting on behalf of another party, I thought that that person would be fulfilling the role of an agent and would therefore probably be required to have a seller's pack. On further clarification, the hon. Gentleman made it clear that he was referring to an entirely internal arrangement within the family. I then expressed a different view and said that it was not our intention to catch family transactions within the obligation of the seller's pack, and that such an example would be unlikely to be caught. I did say that I would look into it further and write to Committee members and the Chairman, and I will.
Mr. Loughton: I am grateful and apologise if I have been unintentionally misleading. I am talking about normal trust funds and the relationships I have described. Notwithstanding what constitutes an individual or individuals in a pub for the owner of 74 Acacia avenue, the Minister has not dealt with the feasible situation where an individual acts through an intermediarya friend and third partywho secures a buyer. An individual may tell someone in a pub that his property is on the market. That person, in a goodwill gesture, may put the individual in touch with a friend of his who wants to buy that property. It is not a person going around the pub hawking, it is simply a property being mentioned to a third party, who takes no commission, but who connects the vendor with a buyer. What is the situation there?
Mr. Raynsford: I hesitate to ask the hon. Gentleman to look forward, but in clause 14, he will see the definition of the person acting as an agent. He will see that it is defined as someone effecting an introduction on behalf of the vendor. In the circumstances described, if an individual seeks to effect introductions in that way, he would come within the definition of acting as an agent.
Mr. Loughton: I am sure, Mr. Stevenson, that you would not wish us to start looking at clause 14, which we will reach in the dim and distant future. In no way would Nobby in the pub, who meets the owner of 74 Acacia avenue, be constituted as acting as an estate agent, certainly if he is not taking commission. We will return to that later.
There is another instance, which I think is more easily dismissed, but I would like confirmation. Let us take the example of Conservative clubs, of which I am glad to say that there are many and a growing number. Conservative clubs tend to be owned by trustees, as is the flourishing one in my constituency. If the trustees were to sell that club because it was doing exceedingly well and needed larger premisesa highly likely situationand they were to make an announcement or issue a notice that could be seen only by other members of a private member club, does that fall foul of this? I am not talking about family members. It is a private club with private members. There are many types of private member clubs, some more salacious than the ordinary Conservative club, but perhaps the Minister would say whether private member clubs be caught.
Mr. Waterson: The question might be more piercing if the example involved not the club itself but a flat attached to the club. I assume that it would have to be a private dwelling, but I think that the same consideration applies.
Mr. Loughton: Absolutely, that is yet another twist in the torturous argument that we are enduring.
On the other issue of the definition of when the sale ends, would it not be sensible, as a way of getting round the two-pronged definition of when the marketing endsin terms of the written confirmation from the vendor and the active ending of marketing by the agentto have a time criteria? Then, on written instructions from the vendor that the house was no longer to be marketed, and that within three days or 48 hours or whatever, the agent should be required to have ceased marketing. That would include dismantling boards and would be an enormous incentive to take the boards down.
The previous Government, not the present Administration, had already legislated on the use of more than one board per property, as my hon. Friend the Member for Eastbourne has mentioned. I am merely offering a suggestion of how to get around what is a rather open ended two-prong attack. The definition, or the inclusion, of the word ``friend'' as an exemption, is very open-ended. It may be that vendors and prospective purchasers become the most gregarious people out socialising, because they will suddenly become great friends in order to avoid the expensive and confusing requirement for a full-blown sellers pack.
Question put, That the amendment be made:
The Committee divided: Ayes 6, Noes 9.
Division No. 2]
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 1 ordered to stand part of the Bill.
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