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(  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”


 
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