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Baroness Hanham moved Amendment No. 196:
( ) the core elements of the pack which must be made available before any marketing of a residential property may take place"
The noble Baroness said: This amendment would place on the Secretary of State a requirement to make regulations relating to the key parts of the pack that must be made available prior to, or at, any marketing of the property. Again, it is made against the background that we do not think that the packs should necessarily be available on day one. However, it is a situation that might arise.
The amendment should be taken in the context of the other amendments. To touch briefly on the marketing aspects of this matter, it may be the case that the property is marketed in one way or another some time prior to the detailed negotiations commencing. Of course, marketing a property does not mean that the property will necessarily be sold.
It is also vital that a person who wants to market his property is able to do so as speedily as possible. It should be the case—the Minister, who has temporarily left his place, has said that he would expect it to be so—that many of the packs will be available within four or
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five days. I think that most of us consider that that will be a triumph of hope over what will become experience, but it should be possible to organise a pack within two weeks. That will happen only if information is held by local authorities and made available on-line and if the home condition report can be carried out in the shortest possible time, which will possibly not be the situation to begin with. Therefore, if someone is to be able to market a property without a pack, there needs to be a sharper definition of what constitutes marketing.
There may be a legitimate reason why a piece of information for the pack cannot be readily obtained, and it seems to us wrong to hold up the marketing of a property in such cases. However, it would seem sensible that a set of core information should be included in the pack before any property can be marketed—for example, applications for searches, terms of sale and the seller's property information, all of which will probably be available quite quickly, as it certainly should be under e-technology. But other aspects may not be quite so easily obtainable.
I think that this is an area which is worth discussing and considering in the light of the marketing aspect. For most people, the marketing will be delayed in any case by the necessity to get information into the packs, and that has the potential to hold up a sale substantially if a property cannot be marketed without all the elements of the pack being available. I beg to move.
The Earl of Caithness: I support everything that my noble friend has said but would add one thing, which I mentioned yesterday. I refer to the case of leasehold properties—flats—and the difficulty of obtaining information from managing agents. I re-read what was said yesterday and I think that we still need to address this problem.
The unavailability of such information is often one of the factors that delays the sale of a flat. If one does not obtain it from a managing agent for whatever reason, the property must still be allowed to be marketed. It penalises the occupier or tenant of that flat unreasonably if he has to wait for all the final details. He may obtain some information from the managing agent. The managing agent may be able to tell him what repairs were done last year but he may not be able to say what repairs were done the year before or the year before that. He may not be able to tell him about the sinking fund. There may be information that he cannot give readily about the future expenditure plans, other than normal repairs and maintenance, but he may not be professional enough to have the whole schedule readily at his fingertips or, indeed, he may not have obtained that information from the owners of the property or the tenants' association. Therefore, many areas are involved in what my noble friend says and there must be a time at which one can get on and begin the marketing process without the full information being available.
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9.15 p.m.
Lord Borrie: Clause 144 is important and entitles the Minister to make regulations specifying what documents and what information should be in the home information pack, which we have now been discussing in one form or another for some time. It is obviously a vital provision of this part of the Bill.
We all know that regulations can be changed from time to time. If, following certain trends of thought from those who have spoken so far, the Government were too ambitious in their requirements in regulations as to what should be in the home information pack, that could be altered. However, it seems to me that if one introduces this core element, which is the phrase used in the amendment tabled by the noble Baroness, that is a subtlety too far. I notice that Opposition Members through this Committee stage have been talking about the dangers of over bureaucratising the Bill and the provisions and therefore getting into legal and perhaps litigious arguments as to what is meant. We are introducing, it is suggested, the phrase "core elements" when, as I say, the Government have every ability and opportunity under this clause to say what they want and what they do not want and, indeed, to alter that assertion from time to time if they feel that they have required too much or too little in the home information pack.
Either noble Lords are seeking too much subtlety or this is, I fear, yet another way of trying to reduce the number of things that should be given to enable the buyer to make a sensible decision as to whether to make an offer after the property is marketed.
Lord Phillips of Sudbury: This is obviously a hugely important practical matter and any conveyancer will say that it is. Could not the answer to this amendment—indeed, it is similar in intent to Amendment No. 195A moved by my noble friend—be for the Government to commit themselves to early consultation with the Law Society and the Royal Institution of Chartered Surveyors to ascertain from them the timing for the production of different documents in the pack, given that Clause 144(9)(a) already permits the Government to prescribe different times for the production of different documents.
I think that we are all batting on the same side here but I suspect that we want some reassurance that the Government are fully aware of how important this is, have early consultations and give early indications, therefore, as to just how they are going to deal with it.
Lord Bassam of Brighton: This amendment seeks to place an obligation for core elements of the pack to be available when marketing first takes place. Similar powers are already contained in Clause 144(9). As we have explained in the policy notes, which we have made available to the Committee, our aim with pack contents is to try to strike a reasonable balance between comprehensiveness and cost. We propose to include in the pack only those documents that are relevant to the property and its sale and are likely to be of interest to potential buyers and help them to make informed decisions.
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The proposed contents set out in our consultation paper provide information which if not disclosed upfront could later threaten or delay the transaction. Our intention, therefore, is that all documents prescribed for inclusion in the pack will be core documents.
We have gone over this a fair bit, but I want to make one point which I hope will offer more reassurance in particular to the noble Lord, Lord Phillips; that is, we are approaching this with goodwill. We are intending to consult very much with the property professionals so that we get this right and we are very sensitive and in listening mode. Although I can sense some of the difficulties from what has been said, particularly by the noble Earl, who is close to this from his own practical experience, I think it right that we try to tease this out in the consultative period that we shall have. That should enable us to be much more sensitive to market problems and pressures and so forth.
I thought that the point about getting information from managing agents was particularly valid. It is worth saying that if information required for the pack simply is not available because of some obstruction, whether intended or not—perhaps because the information simply does not exist; the noble Earl said that it may be hard to obtain certain information—our expectation in those circumstances would be that marketing could commence without it. But if the information exists and despite reasonable efforts it is not available within a reasonable timescale then we propose to provide by regulation that marketing can commence and that the missing information can be added when it practically becomes available.
So we shall be sensitive to that issue. On talking to friends who have difficulties with managing agents and learning of the difficulties that sometimes tenant or leaseholder groups have in teasing some of this information out, I can well appreciate the difficulty that the noble Earl refers to.
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