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Lord Bassam of Brighton: The noble Earl has been very astute in seeing that the Bill is silent on the issue of how the costs of the pack will be met. That is deliberate on our part. It is clear to us from discussions with the industry that sellers will be able to choose from a wide range of options; for example, some mortgage lenders are likely to provide a free pack as an incentive to sellers to stay with them on to the next purchase. Some voluntary home information pack schemes currently run by estate agents provide a pack without an upfront charge. In some cases the cost is recouped via a commission fee, as one may expect. Alternatively, of course, sellers may choose to pay for packs themselves and seek to reflect the cost in the purchase price.
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Our view is that the market will provide consumers with many choices and the imposition of a statutory straitjacket, in our view, would be very unhelpful. That is not what we want. The noble Lord, Lord Phillipsif I may remind the Committee of his earlier argumentsaid that in certain circumstances it is desirable to have flexibility. We have provided for that. We believe that it would be wrong to impose that as an obligation on the buyer. We do not want to see the cost forced on to buyers. We believe that the market will sort this out. In those circumstances, how the cost of the pack will be met is open.
The Earl of Caithness: The noble Lord is right about fees. The evidence in Denmark is exactly as he has said. In Denmark, since the introduction of the home information packs, the fees charged by agents have risen; they will also rise in this country. The amendment mitigates that fact by putting the onus on the purchaser. The whole of the onus at the moment is on the vendor. The vendor has to commission all the work upfront and it has to be paid for. No solicitor, no estate agent, no home condition inspector will do that for free. That is not the world in which we live.
It would be wrong of me to say that I shall withdraw the amendment and return to it at another stage. I am taking enough on to another stage and it is time to test the opinion of the Committee.
On Question, Whether the said amendment (No. 189A) shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 119.
Clause 138, as amended, agreed to.
Clause 139 [Section 138: imposition of conditions]:
[Amendments Nos. 190 to 191A not moved.]
Lord Rooker moved Amendment No. 191B:
On Question, amendment agreed to.
[Amendment No. 192 not moved.]
Clause 139, as amended, agreed to.
Clause 140 [Duty to ensure authenticity of documents in other situations]:
Lord Rooker moved Amendments Nos. 192A and 192B:
(a)"
Page 96, line 43, after first "or" insert
"(b) a copy of"
On Question, amendments agreed to.
Baroness Hanham moved Amendment No. 193:
The noble Baroness said: The amendment looks minor, but is intended to tighten up the language used in the clause. "Duty to ensure" is a particularly onerous duty to have, and a fairly unforgiving one. An estate agent can only reasonably be expected to rely on information and documentation given to him by other parties when putting together a pack, if indeed it is the estate agent who puts together the pack. An agent is under an obligation to do all that he can to get all the documentation correct, but he cannot be held responsible for errors that other professionals make.
We therefore propose that the insertion of,
would adjust the clause so that its meaning was clear. An agent has to do all that he can, but ultimately errors in documents forming part of a pack have to be the responsibility of the original authors and originators of the information for the document itself. I beg to move.
The Earl of Caithness: My noble friend is absolutely right. My Amendments Nos. 195ZA and 195ZB are rightly grouped with Amendment No. 193. It would be quite unwarranted for an agent or a sellera private individual, should he be responsible for preparing the packto be liable for information that he has not compiled himself.
The home information pack will now be a weighty tome. As I said, in Denmark it is now 800 pages, and only a fraction of that relates to the work of the estate agent. Surely the estate agent is responsible under the Property Misdescriptions Act for the work that is properly that of an estate agent, but where the home information pack includes searches, the home condition report and items from the solicitor, there is no way that he can verify whether those are true. The estate agent should therefore not be the person at risk. I support my noble friend in her amendment.
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