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amend
the Estate Agents Act 1979 to make provision for independent |
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consumer redress in connection
with the sale and purchase of residential |
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Be
it enacted by the Queen’s most Excellent Majesty,
by and with the advice and |
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consent of the Lords Spiritual
and Temporal, and Commons, in this present |
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Parliament assembled, and
by the authority of the same, as follows:— |
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1 |
Amendment
of the Estate Agents Act 1979 |
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(1) |
The Estate
Agents Act 1979 (c. 38) is amended as follows. |
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(2) |
In section 27(1)(b) (wilful
obstruction of an enforcement officer), after the |
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words “section 11 above”,
insert the words “or section 27A(9)”. |
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(3) |
After section 27 insert— |
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“Independent
redress scheme |
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27A |
Independent
consumer redress scheme |
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(1) |
The Secretary of State
may by order require an estate agent to be a |
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member
of an independent consumer redress scheme. |
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(2) |
Before making an order
under this section, the Secretary of State must |
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be
satisfied that he has approved one or more independent redress
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schemes
such that every estate agent who is (or will be) subject to the
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duty
imposed by the order is eligible to join an approved independent
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(3) |
An order under this section
may— |
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(a) |
exclude estate agents of
a prescribed description from the duty |
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referred
to in subsection (1); |
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(b) |
limit any such duty so that
it applies only in relation to relevant |
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complaints
of a prescribed description. |
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(4) |
Nothing in this section
is to be taken as preventing an approved |
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independent
consumer redress scheme from providing— |
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(a) |
for
membership to be open to persons who are not subject to |
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any
duty to belong to an approved independent consumer |
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(b) |
for the investigation and
determination of complaints, other |
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than
those in relation to which such a duty applies, made |
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against
members who have voluntarily accepted the |
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jurisdiction
of the independent consumer redress scheme over |
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(c) |
for the exclusion from investigation
and determination under |
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the
independent consumer redress scheme of any complaint in |
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such
cases or circumstances as may be specified in the scheme. |
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(5) |
Nothing in this section
prevents an estate agent from being a member |
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of
an approved redress scheme in addition to an approved |
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independent
consumer redress scheme. |
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(6) |
On the coming into force
of any order under this section, every estate |
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agent
to whom the requirement under the order applies must make |
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public
his independent consumer redress scheme membership in |
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writing
in his commercial premises or marketing material. |
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(7) |
For the purposes of the
law relating to defamation, proceedings under |
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an
approved independent consumer redress scheme in relation to the
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investigation
and determination of a complaint which is subject to an |
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order
under this section are to be treated in the same way as |
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proceedings
before a court. |
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(8) |
Acting as estate agent
for the seller of a residential property in |
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contravention
of an order to join an independent consumer redress |
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scheme
is a breach of duty. |
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(9) |
It is the duty of each
enforcement authority to enforce the provisions of |
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subsections
(6) and (8) in their area. |
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27B |
Approval
of independent consumer redress schemes |
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(1) |
If the Secretary of State
considers that an independent consumer |
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redress
scheme (including one made by him or in pursuance of |
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arrangements
made by him) is satisfactory for the purposes of section |
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27A,
this section and sections 27C and 27D, he may approve it for those
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(2) |
In determining whether
an independent consumer redress scheme is |
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satisfactory,
the Secretary of State shall have regard to— |
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(a) |
the provisions of the scheme; |
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(b) |
the manner in which the
scheme will be operated (so far as can |
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be
judged from the facts known to him); and |
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(c) |
the respective interests
of members of the scheme and of sellers |
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and
potential buyers of residential properties. |
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(3) |
An independent consumer
redress scheme may not be approved unless |
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it
makes satisfactory provision about the following matters (among
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(a) |
the matters about which
complaints may be made (which may |
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include
non-compliance with the provisions of a code of |
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practice
or other document); |
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(b) |
the
duties and powers in the scheme in relation to the |
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investigation
and determination of complaints (which may |
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include
power to decide not to investigate or determine a |
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(c) |
the provision of information
by the scheme administrator to— |
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(i) |
persons exercising functions
under other schemes |
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providing
a means of redress for consumers; and |
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(ii) |
the Secretary of State
or any other person exercising |
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regulatory
functions in relation to the activities of estate |
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(4) |
An application for approval
of an independent consumer redress |
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scheme
shall be made in such manner as the Secretary of State may |
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determine,
accompanied by such information as the Secretary of State |
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(5) |
The person administering
an approved independent consumer redress |
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scheme
shall notify the Secretary of State of any change to the scheme
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as
soon as practicable after the change is made. |
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27C |
Withdrawal
of approval of independent redress schemes |
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(1) |
The Secretary of State
may withdraw his approval of an independent |
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(2) |
But before withdrawing
his approval, the Secretary of State shall serve |
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on
the person administering the scheme a notice stating— |
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(a) |
that he proposes to withdraw
his approval; |
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(b) |
the grounds for the proposed
withdrawal of approval; and |
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(c) |
that representations about
the proposed withdrawal may be |
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made
within such period of not less than 14 days as is specified |
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(3) |
The Secretary of State
shall give notice of his decision on a proposal to |
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withdraw
approval, with his reasons, to the person administering the |
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(4) |
Withdrawal of approval
has effect from such date as may be specified |
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(5) |
The person administering
the scheme shall give a copy of a notice |
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under
subsection (3) to every member of the scheme. |
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(6) |
Nothing in this section
affects any right of private action of any party. |
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(1) |
The Secretary of State
may make grants towards expenditure incurred |
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by
any person in connection with— |
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(a) |
the development of proposals
for any independent consumer |
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(b) |
the development of the scheme. |
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(2) |
A grant under this section
may be made on conditions, which may |
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include
(among other things)— |
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(a) |
conditions as to the purposes
for which the grant or any part of |
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(b) |
conditions
requiring the repayment of the grant or any part of it |
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in
such circumstances as may be specified in the conditions. |
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27E |
Sections
27A to 27D: interpretation |
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(1) |
Subsections (2) and (3)
apply for the interpretation of sections 27A to |
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(2) |
For the purposes of the
sections specified in subsection (1)— |
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‘dwelling-house’
means a building or part of a building occupied |
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or intended to be occupied
as a separate dwelling (and includes |
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one that is being or is
to be constructed); |
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‘estate agent’
means a person who acts as estate agent for sellers |
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of residential properties
including by auction or tender; |
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‘independent redress
scheme’ means a scheme under which |
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certain relevant complaints
may be investigated and |
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determined by an independent
person; |
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‘make public’
means advertise or otherwise communicate (in |
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whatever form and by whatever
means) to the public or a |
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‘relevant complaint’
means a complaint against an estate agent |
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(a) |
is made by a person
who at the material time is the seller |
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or a potential buyer
of a residential property; and |
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(b) |
relates to an act
or omission affecting the complainant in |
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the course of estate
agent’s activities in relation to estate |
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agency work that is
(or will be) required for that |
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‘residential property’
means premises in England, Wales, |
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Scotland or Northern Ireland
consisting of a single dwelling- |
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house, including any ancillary
land. |
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(3) |
For the purposes of the
interpretation of ‘estate agent’ (as defined in |
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subsection
(2)), it is immaterial whether or not a person describes |
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himself
as an estate agent, but that term does not include a person who
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is
(by virtue of a prohibition imposed by or under this Act) unable
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lawfully
to act as estate agent.” |
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There
shall be paid out of money provided by Parliament any increase
attributable to |
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this
Act in the sums payable out of money so provided under any other
enactment. |
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This Act may be cited as
the Estate Agents (Independent Redress Scheme) Act |
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