April will bring some new rules around property listings. There isn't anything major changing, but your property advert might need to contain a little more information going forwards. In the article below, Foxtons Director of Legal & Compliance, Manjit Kataora will walk you through it.
Key Takeaways
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- 1 New law, similar rules. The Consumer Protection regulations are changing in April, but the basic requirements for a property listing remain largely the same.
- 2 Complete transparency matters. Listings must include all material information that could affect a buyer's decision, with even innocent omissions potentially breaching regulations.
- 3 Legal details now upfront. Information traditionally handled during conveyancing (like restrictive covenants) must now be included in the initial listing.
- 4 Smoother transactions. These changes are designed to make buying and selling more transparent, though solicitors will still conduct their own due diligence.
- 5 We handle the complexity. Our agency will manage the technical legal requirements on your behalf, ensuring your listing complies.
The law in relation to material information and misdescription is currently contained in the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). However, in April this year, these are set to be revoked and replaced with Part 4 of the Digital Markets, Competition and Consumers Act 2024.
The CPRs have long regulated property listings and descriptions. They include omissions and misstatements that adversely affect the ‘transactional decision’ of the average consumer. A breach of the CPRs is what is known as a ‘strict liability’ offence. This is a special type of liability whereby an offence is committed regardless of whether the agent intended to commit one or not. What this means is that innocent mistakes are punishable in the same way as intentional or reckless ones.
There is not a huge amount of difference between the new requirements and the existing CPRs. Fundamentally, the law will still prohibit what it terms ‘unfair commercial practices’. However, read literally at least, the new act carries a broader definition of this term in so far as this will now include omitting material information from an invitation to purchase.
This doesn’t seem that significant until one considers that the meaning of invitation to purchase generally means an advert selling (and describing) something. A property listing, for example, is an invitation to purchase. This new element then means that anything that contravenes the requirements of due diligence or leaves out material information from the advert could be upheld as an unfair commercial practice. Put simply, things still have to be described very accurately and fully.
In November 2023, National Trading Standards published updated guidance on material information requirements for sales and lettings. The requirements contain in-depth and technical information about elements of a property that, in fact, few owners or leaseholders could necessarily be expected to know. For example, details about restrictive covenants or easements over the property.
Traditionally, these have been matters of title that are explored and clarified during the conveyancing stage of a property transaction by the purchaser’s solicitor. They are not matters that can readily be understood by the average lay vendor. This makes them difficult to accurately describe and insert into a property advertisement by agents who are not legally qualified, which creates a greater risk of misdescription.
At the heart of all this is the theory that providing more detailed information within the property listing will make the process of buying and selling an easier and more transparent process for both sides. In one sense that is true: information a buyer can see early on is clearly a good idea.
On the flip side, however, is that the information is legalistic (therefore difficult to understand) and descriptive. A buyer’s solicitor is unlikely to advise their client to rely on such information (generated as is by the vendor) and will instead likely commission their own searches on which they can more comfortably advise their client as to whether to proceed or not with the transaction.
The proptech market has been quick to move into this area. Several companies now exist who can – impressively – collect this information for agents and load it into listings. Even so, not all the information can be collected because some things are known only to a vendor (or landlord).
And if the purpose of the whole process is to speed things up, can it really be said this will be achieved if naturally circumspect purchasers, owed no duty of care by the vendors or their agents, are best advised to run their usual searches (at cost) anyway?
At best, there’s likely to be a duplication of information. Buyers will likely still engage their own solicitors to advise them about the property and be naturally reticent to rely on information provided by a vendor or the vendor’s agent.
The guidance is just that: guidance. And the new law arguably doesn’t change that much when you consider that the CPRs apply to property listings. So the changes may mean relatively little right now, but it remains to be seen how they will be interpreted by the courts, who are the ultimate arbiters in cases of dispute.
Your listing, sorted.
When it comes time to set up a new property advert, our experienced Lettings team will ensure you've got everything correct and compliant from the start. Get started with a rental valuation. Or, if you want help with an existing tenancy, look into Foxtons Property Management.
Source: This piece was authored by Foxtons Director – Legal & Compliance, Manjit Kataora, who has been working with Foxtons on the intricacies of legislation affecting London landlords for more than 16 years. If you have a question on letting your property in London, ask a Foxtons expert
