Mr. Curry: What else could the phrase mean but that the pack must be in the estate agent's possession wherever he goes?
Mr. Raynsford: There is concern that it could be interpreted in a slightly fanciful way.
Mr. Curry: Could it be otherwise interpreted?
Mr. Raynsford: The common-sense interpretation is that if, for example, the right hon. Gentleman were to leave the Committee Room for a temporary break to have a cup of coffee, he would not be required to take the seller's pack with him to comply with the requirement.
The right hon. Gentleman will understand, because he was a Minister and he knows the problems, that there could be an over-detailed interpretation of the proposal. For that reason I have undertaken to reconsider the issue. We shall, if it is necessary, table an appropriate amendment at a later stage.
Under clause 3(3), (4) and (5), a responsible person will be under an obligation to provide a copy of the seller's pack or an extract from it within 14 days of a request being made by a potential buyer on payment of any fee required to cover reasonable costs. Failure to comply with that obligation will be an offence. Clause 3(3) makes an allowance that the copy that is required to be provided is to be of the seller's pack or of the requested extract from it as it stands when the request is made. The hon. Member for Eastbourne asked what that meant. The allowance, which the amendments would remove, is most important to ensure that the obligation does not impose an undue and unreasonable burden.
As I said, we envisage that the contents of a seller's pack might change over time. Under clause 7(8)(a) the Secretary of State may provide in regulations for the time at which any document is to be included in the seller's pack. We have in mind to use that power to allow properties to be marketed with an incomplete seller's pack when, through no fault of the seller or the seller's agent, a prescribed document or information is not available or cannot be supplied within a reasonable period. It would be unreasonable to prevent the property being marketed when, for technical reasons, one document was not available; some flexibility is necessary. In such cases, the missing item or items must be indicated in the seller's pack and inserted when and if they become available. The contents of the pack could also change if the seller chose to update certain information.
The hon. Member for Eastbourne, who raised the matter, may suggest a lurid interpretation of the cost involved, but in the most likely instancea searchwe hope that the introduction of the national land information system will make it possible to find out almost immediately whether there has been any change. It would be a simple, straightforward and cheap way of obtaining that information, thus obviating the need for an updateprovided, of course, that the reply is that there has been no change. That is why it is appropriate to consider updating; it is not an open door to large, additional costs.
Mr. Tim Loughton (East Worthing and Shoreham): I understood the clause as drafted to refer to the documents available in the pack. The Minister said that the Secretary of State may specify documents that may not need to be included at that stage; presumably, that does not include important documents such as the survey. The Minister of State used the phrase ``when and if'' those documents become available. Will he qualify the ``if''? Let us take the damp-proofing guarantees, for example, which are just the sort of documents he refers to. At what stage will it be deemed inappropriate to search for or to provide a replacement for a missing certificate?
Mr. Raynsford: The hon. Gentleman makes a fair and reasonable point, of which the damp-proofing certificate is a classic example. There is an obligation for documentation such as guarantees to be assembled, provided that the seller has that documentation available. As the hon. Gentleman knows, a guarantee may have been issued a long time ago and lost. The seller may believe that the document will be found and put a note in the pack stating that it will be provided when it turns up, but he may fail to find it. A guarantee of that nature will not be fundamental, because it is an ancillary element; the lack of such a document would enable the buyer to decide whether the price to be offered should be reduced for that reason, but it would not make the pack fundamentally deficient. The hon. Gentleman suggests that the house condition report is fundamental, and that the absence of a document would mean that a satisfactory pack could not be assembled, but it is in the nature of documents such as guarantees that they may not be found. That is why the word ``if'' is used, although it is in the seller's interest to provide those documents as soon as possible.
Mr. Loughton: I am grateful for the Minister's explanation. Let us suppose that it is specified in the pack that the seller is likely to or will provide some guarantees, including one on damp-proofing, but the guarantees do not turn up by the time contracts are exchanged or the sale completed and do not subsequently turn up, even though the vendor has given the impression that they exist and that documentation could be provided. What legal rights has the purchaser? He has completed the transaction, but has not been able to take possession of the additional guarantees that he was led to believe would be forthcoming in the seller's pack. What specific redress does he have? The price has been settled, so no reduction can be negotiated.
Mr. Raynsford: The hon. Gentleman makes a fair point, but he is pushing a little too far. As I said, the purchaser could judge what price to offer if the documentation does not become available. Any solicitor advising such a purchaser would advise him to be wary of promises regarding documentation that has not materialised. If the solicitor acts properly and professionally, he will advise the purchaser to take a view on what discount might be made in the offer price in the light of the absence of the documentation. Of course, the caveat emptor principle still exists: the buyer would have taken the decision knowing full well that the documentation was not available, even though it had been promised. The buyer would be taking that riskbut at least he will in a position to know that the documentation is absent. That is one of the advantages of our provisions stating that the pack must mark the absence of documentation that it should otherwise contain. The buyer will act having reasonable knowledge about the absence of information, and will be able to form a judgment based on it.
Mr. Brake: Does the Minister intend to state what documents will be absolutely necessary in the seller's pack? I am worried that technical reasons might be used to excuse the presence of any number of documents including, for instance, a home condition survey.
Mr. Raynsford: I ask the hon. Gentleman to be patient. The contents of the seller's pack are the subject of regulations to be made under a later clause, so we will have a full debate on them. I would not want to incur your wrath, Mr. Gale, by moving too far ahead of our logical procedures. I undertake to return to the subject when we reach the relevant point.
Mr. Don Foster: In the event that the sale is protracted, common sense and the Minister's comments make it clear that there will be opportunities for the seller's pack to be updated to contain new additional information. Will the vendor be required to notify those who received earlier versions of the seller's pack that amendments and updates to it have been made, or does the Minister thinkI would be tempted to share the viewthat it would simply be a matter of good practice on the part of the vendor to do so?
Mr. Raynsford: It certainly would be a matter of good practice. I can envisage circumstances, such as if the property had been on the market for a long time, in which the agent would simply not have a means of contacting people who had expressed an interest but not left forwarding addresses. It would be difficult to impose an absolute obligation, but informing people where possible would be good practice.
Under amendments Nos. 38 and 39, if the contents of the pack changed between a copy of the pack being requested and being provided, the responsible person would be obliged to provide a copy of the revised packand all within the 14-day deadline; the pack could change on day 13, for example. If a copy of the new or revised document could not be obtained and provided within 14 days of the original request, the responsible person would have committed an offence. To put people in a position in which they could be in breach of the law in such circumstances would be wholly inappropriate and unreasonable. In such circumstances, the responsible person will be expected to make every effort to ensure that the copy documents are fully up to date, but that should not be made a formal obligation subject to criminal sanctions.
In view of what I have said about the circumstances in which we intend to allow properties to be marketed with an incomplete seller's pack, I hope that hon. Members will consider not moving amendment No. 29 when the Committee turns its attention to clause 7, when, as I told the hon. Member for Eastbourne, we shall return to the subject in detail. For now, I hope that the hon. Member for Eastbourne will withdraw amendment No. 35.
Mr. Waterson: I am grateful to the Minister for that long and fairly complex series of explanations. I shall seek the leave of the Committee to withdraw the amendments, but first I reiterate that if the official Opposition are unable to talk the Government out of the lunacy of making it subject to law, we should not heap too many obligations on people who are going about their ordinary businesseven hapless estate agents in Benidorm. A great deal more work needs to be done on the possession point.
I hope that the Minister will not think me churlish, given that he has undertaken to reconsider subsection (2). On first reading, the phrase
leaps off the page. I am surprised that it passed quality control checks in Whitehall. It certainly should be reconsidered. Presumably, a vast body of law, including drugs legislation, states what does and does not constitute possession. The Minister would be well advised to get away from that, or at least to table an amendment on similar lines to ours. I have a hunchI could be wrongthat a Government amendment will emerge sooner or later that is not dissimilar to amendment No. 35. The Minister has been good enough to say that he will reconsider the matter, and we are pleased about that.
Amendments Nos. 38 and 39 have done their job as probing amendments in that they have brought out the inherent absurdities of the legislation. The Minister tried to shrug it off, but dating the seller's pack and so on will only add to the costin some cases, unnecessarily. The Minister had no choice but to accept the fact that not only will the packs need to be updated, but that some documents will not become available in good timesome, as my hon. Friend the Member for East Worthing and Shoreham (Mr. Loughton) pointed out, may not become available at all. I do not remember ever buying a property when the damp-proofing guarantee was produced on timeindeed, sometimes it could not be found. It is a mystery why anyone should bother issuing them.
Cracks are beginning to appear in the Bill. It is envisaged not only that people will have to scrabble around putting the seller's pack together, but that they will not always be able to put it all together because papers, some of them important, will be missing. For instance, the home condition report may not be available at the start because the seller wants to use the services of a particular surveyorperhaps one he has used beforewho turns out to be on holiday. It is a serious matter because, in many cases, the seller's pack may not be complete.
However, we shall return to those points at some point. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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