(33-36)

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

(  33  )

Clause 138
130
Page 95, line 12, at end insert—

“( )
That duty does not apply if, and for so long as, the seller determines that

the property is to be sold without a home information pack, and in the

event the estate agent for the seller is the responsible person, the seller has

so informed him.”
131
Page 95, line 36, leave out subsection (6) and insert—

“(6)
That duty does not apply where the responsible person is the seller if, when

the request is made, the duty under section 137 does not (by virtue of

subsection (2) of that section) apply to him.

(6A)
But where the duty under this section is excluded by subsection (6), it is the

duty of the seller to take reasonable steps to inform the potential buyer that

the request should be made to the other person.”
Clause 139
132
Page 96, line 24, leave out “Such”
Clause 140
133
Page 96, line 42, after “be” insert “—

(a)”
134
Page 96, line 43, after first “or” insert—

“(b)
a copy of”
135
Page 96, line 45, at end insert—

“( )
That duty does not apply if, and for so long as, the seller determines that

the property is to be sold without a home information pack, and in the

event the estate agent for the seller is the responsible person, the seller has

so informed him.”
136
Page 97, line 10, leave out “in response to a request” and insert “in pursuance of the

duty”
Clause 141
137
Page 97, line 22, at end insert—

“( )
That duty does not apply if, and for so long as, the seller determines that

the property is to be sold without a home information pack, and in the

event the estate agent for the seller is the responsible person, the seller has

so informed him.”
138
Page 97, line 23, leave out “a view to” and insert “the intention of”
Clause 144
139
Page 99, line 24, leave out paragraph (b)
Clause 145
140
Page 100, line 8, after “for” insert “requiring”

(  34  )
141
Page 100, line 9, , after “scheme” insert—

“( )
for the keeping of a public register of the members of the scheme;”
Clause 146
142
Page 100, line 21, leave out “this Part” and insert “—

(a)
the duties under sections 137 to 141 and 147(4), and

(b)
any duty imposed under section (Power to require estate agents to

belong to a redress scheme)(1),”
Clause 147
143
Page 100, line 35, leave out “subsection (5)” and insert “subsections (4A) and (5)”
144
Page 100, line 37, at end insert—

“(4A)
A person is not required to comply with such a requirement if—

(a)
he is the seller and has determined that the property is to be sold

without a home information pack; or

(b)
he is the estate agent for the seller and the seller has informed him

that the property is to be sold without a home information pack.”
Clause 148
145
Page 101, line 8, leave out from “of” to “give” in line 9 and insert “—

(a)
any duty under sections 137 to 141 and147(4), or

(b)
any duty imposed under section (Power to require estate agents to

belong to a redress scheme)(1),”
146
Page 101, line 11, after “day” insert “(or in the case of a continuing breach the last

day)”
After Clause 151
147
Insert the following new Clause—

“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);

(  35  )

(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 (Approval of redress schemes) and (Withdrawal of

approval)—


“approved redress scheme ” means a redress scheme that is for the

time being approved under section (Approval of redress schemes);


“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.”
148
Insert the following new Clause—

“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 (Power to require estate agents to belong to a redress

scheme), 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.

(  36  )

(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.”
149
Insert the following new Clause—

“Withdrawal of approval

(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.”
Clause 155
150
Page 104, line 26, at end insert—

“The Market
Section 131(A1)”

Clause 159
151
Page 107, line 34, after “a” insert “final”