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Lord Bassam of Brighton: The answer is "yes", if the potential purchaser is happy to receive a copy in that form. I think that is provided for at subsection (10) of Clause 138.
The Earl of Caithness: I am extremely grateful for that clarification. So, I do not have to give a home information pack to anybody—I can say that our pack is on the Web, and one can look at it there. I need one office copy, full stop.
Lord Bassam of Brighton: I did not say that.
The Earl of Caithness: I listened very carefully to exactly what the noble Lord, Lord Bassam, said. The noble Lord referred me to subsection (10) of Clause 138. I am fulfilling the duty to have a home information pack by having it in my office. If a purchaser comes in and wants to see it, I can now say to him, "Yes, you can see it. It's on the website". Is that correct?
Lord Bassam of Brighton: It would certainly satisfy the requirement if the potential buyer is happy to receive it in that form. If he is not, I suggest that the agent would have to provide it in another form—that is, a hard copy.
The Earl of Caithness: I am grateful for that clarification. I come back to the original point: this is going to lead to a lot of wasted time and bureaucracy. I know of potential purchasers in the market now who
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will happily spend their Saturdays visiting estate agents—most of whom do work on Saturdays, so theirs is at least a six-day week—saying they want home information packs just for the fun of it. They already do just that with sets of particulars. That will add to the unnecessary cost and bureaucracy that this Bill will produce. The more we look at the Bill, the clearer it is that it is a mess, which will not help the housing market.
Lord Borrie: If the person who has asked for the report is not genuinely interested in buying the property, the agent does not have to give him a copy of the pack.
The Earl of Caithness: They will all say they are genuinely interested now. I will be able to say to them, "I remember Lord Borrie saying that I don't have to give it to you, because he said so in debate and it's in the Bill", and they will say "I'm going to take you to court. I am genuinely interested. You prove that I'm not". Therefore, in order to save all that kerfuffle, I will inevitably have to have lots of copies of the home condition report—which, in Denmark, would be 800 pages—ready and available. If the property is particularly attractive, we could attract a huge amount of interest: tens of inquiries in a day. That means producing a report for every potential person asking about the property, which is an added cost, extra bureaucracy, and a waste of time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 186 and 187 not moved.]
The Deputy Chairman of Committees (Lord Tordoff): If Amendment No. 188 is agreed to, I shall not be able to call Amendment No. 188A for reasons of pre-emption.
Lord Hanningfield moved Amendment No. 188:
The noble Lord said: Here we continue with our recent debate. Subsections (4) and (5) of Clause 138 are among the most curious in Bills currently going through Parliament. Subsection (4) places an onus on the agent to possess such extraordinary powers of wit and intelligence that, frankly, such people should not be estate agents but secret agents working for MI6.
We have already discussed at length the fact that estate agents do not at present have to fulfil any professional qualifications or requirements. Anyone can become an estate agent. However, this subsection calls for an estate agent who can estimate another person's wealth from the moment they step into the shop, who can tell a con man from any other member of the public, and—most bizarrely—can tell whether a potential buyer will not be approved by the seller.
I look forward to the Minister's response to this amendment because, as it stands, this is an example of over-legislation—an argument that could apply to many other points we have discussed today. Subsection (4)(a) seems to assume that an estate agent
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would have detailed knowledge of a person's means to buy property. I grant that certain customers may well be known to an estate agent as people who have difficulty in raising finance—a point just touched on by my noble friend Lord Caithness. It may be that their income is uncertain or that they have to self-certify their income if they are self-employed. However, it would be a mistake to legislate so that an estate agent is given discretion to pass up a sale simply because he suspects that a prospective buyer cannot afford a property. We all know what lenders are willing to underwrite in debt changes almost on a daily basis. To that end, it will be almost impossible for an estate agent to gauge whether a prospective buyer is solvent.
Subsection (4)(c) is even more anomalous. In Committee in another place the Minister was able to pluck out of thin air a hypothetical example to illustrate when this paragraph could be used. He suggested that if a seller has told his agent that he wants only prospective buyers who are keen gardeners to receive a home information pack, this paragraph would apply. We do not need to legislate for this. Surely once a vendor has met and shown a prospective buyer the property, if he feels that his herbaceous borders might fall into the wrong hands, he has no obligation to accept an offer made by such a non-green-fingered buyer. This is silly legislation and let us please get rid of it. I beg to move.
Baroness Hamwee: We tabled Amendment No. 188A which is also in this group. It also seeks to persuade the Government to explain just how people to whom the seller is not likely to be keen to sell the property are to be identified. I am sure that the Government are satisfied that the provision does not provide the possibility of a get-out by leaving it wholly as a matter for the judgment of the vendor or the agent, but how will that be dealt with on an objective basis? How will it be enforced? The whole provision seems very curious.
Quite apart from that, how is the question of confidentiality in respect of the home condition report and other documents to be dealt with? I have been told by the Law Society that details, for example, of burglar alarm systems are normally provided before exchange. I assume that that is not the sort of thing that would have to be included, but perhaps the Government will take this opportunity to expand on both points.
Lord Phillips of Sudbury: On this occasion I rise to speak in favour of the Government's position. Members on these Benches have said broadly that we are not happy with many aspects of the home information packs. The system is not flexible enough and we do not like the element of universal compulsion. However, this is an attempt on the part of the Government to provide some leeway. While I agree absolutely with the noble Lord who has moved the amendment and my noble friend that the language of subsection (4) is loose and rubbery, I am grateful for small mercies.
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I think that there will be occasions when someone seeks to buy a £1 million property, but the estate agent asks: "How are your finances? Are you dependent on a mortgage?". If the response is, "Yes, we will need a 100 per cent mortgage", and the buyer's occupation is that of a capstan lathe turner, the agent might reasonably deduce that the property was a little beyond the buyer's ambition.
Similarly, from time to time you can take a powerful dislike to someone else for reasons you think are good. They may be familial or business reasons. Alternatively you may think that someone is a crook and has done harm to your family. Given that, why on earth should you not be allowed to say, "Whoever else I sell my property to, it will not be John Smith"? As long as the decision is not unlawfully discriminatory, why should one not do that?
I shall be interested to hear the Minister's response, but for my part I accept the provision because it makes a modest inroad into what is otherwise too compulsory, universal and inflexible a scheme.
Baroness Hamwee: I rise to respond briefly to my noble friend. As a careful lawyer, I am sure that he and I would both want to ensure that something which he and I think is right does not cause trouble. The paragraph must be drafted in a way that would achieve the end we both want to see.
Lord Phillips of Sudbury: I agree with that, but on the other hand my noble friend may agree with me that it is unlikely that a person would take someone to law on this paragraph unless it was plainly an "in-your-face" rejection made without any reasonable grounds. However, perhaps I am becoming too optimistic at this point in the debate.
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