|
|
|
|
|
|
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 |
|
| |
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.” |
|
|
132 | Page 96, line 24, leave out “Such” |
|
|
133 | Page 96, line 42, after “be” insert “— |
|
| |
134 | Page 96, line 43, after first “or” insert— |
|
| |
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 |
|
| |
136 | Page 97, line 10, leave out “in response to a request” and insert “in pursuance of the |
|
| |
|
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 |
|
| |
138 | Page 97, line 23, leave out “a view to” and insert “the intention of” |
|
|
139 | Page 99, line 24, leave out paragraph (b) |
|
|
140 | Page 100, line 8, after “for” insert “requiring” |
|
|
|
|
|
141 | Page 100, line 9, , after “scheme” insert— |
|
| “( ) | for the keeping of a public register of the members of the scheme;” |
|
|
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),” |
|
|
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.” |
|
|
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 |
|
| |
|
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); |
|
|
|
|
|
|
| (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 |
|
| |
| (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 |
|
| |
| (6) | In this section and sections (Approval of redress schemes) and (Withdrawal of |
|
| |
| | “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 |
|
| |
| (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 |
|
| |
| (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. |
|
|
|
|
|
|
| (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 |
|
| |
| (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 |
|
| |
| (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 |
|
| |
149 | Insert the following new Clause— |
|
| |
| (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 |
|
| |
| (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 |
|
| |
| (4) | Withdrawal of approval has effect from such date as may be specified in |
|
| |
| (5) | The person administering the scheme shall give a copy of a notice under |
|
| subsection (3) to every member of the scheme.” |
|
|
150 | Page 104, line 26, at end insert— |
|
|
|
151 | Page 107, line 34, after “a” insert “final” |
|
|