Friday, 25 April 2008

Estate Agents & EPCs

First day marketing during a temporary period ending on 1 June 2008
Provided that the pack has been requested in writing (and is accompanied by the appropriate payment or an undertaking to make the payment) and it is expected to become available within 28 days – marketing can start without a Pack. The duty to provide a Pack does not then arise until the energy performance certificate (EPC) is obtained.

Once the EPC is obtained, you should ensure that the Pack is made available as soon as possible. At this point the pack must include at least the following documents:

  • Index
  • EPC
  • evidence of title (if registered)
  • sale statement.

The Pack might still exclude the following required documents at this point if these have not yet been obtained:

  • evidence of title (if unregistered),
  • searches
  • leasehold/commonhold information

In such cases you should continue to make reasonable efforts to obtain the missing items and add them as soon as possible. Following the end of the temporary period, the main duty is to have a Pack that complies with the Regulations in your possession or under your control when any marketing activity occurs, including marketing activity carried out before the property is actually put on the market.

1 June 2008 onwards
The temporary period ends on 31 May 2008. So from 1 June 2008, there must be a Pack available when marketing starts and certain documents must be in the Pack. Marketing with an incomplete Pack may take place if documents have been requested and it is expected that they will become available within 28 days of the start of marketing. Where documents are missing, this should be noted in the Pack Index and reasonable efforts should be made to obtain them as soon as possible. This exemption only covers the following documents:

  • Searches
  • Leasehold and Commonhold information
  • Evidence of Title (for unregistered properties only)

You are under a duty to provide a copy of the Pack (or any part of it) to a potential buyer who asks for it. The only exceptions to this rule are where it is believed that:

  • The person making the request could not afford the property in question
  • The person making the request is not really interested in buying the property
  • The potential buyer is not a person to whom the seller would wish to sell the property.

However, this does not allow the responsible person to unlawfully discriminate against anyone. A reasonable charge to cover copying and postage costs can be made for providing copies.

You will be expected to make sure that the right documents are included in the Pack, but the legislation on Home Information Packs is not intended to provide that the seller or the seller's estate agent should be held responsible for the accuracy of the information contained in documents that have been provided by others. The penalty provisions recognise this, and will not apply so long as the seller or the seller's estate agent has reasonable cause to believe that the document does comply with the Regulations.

From 1 August 2007, estate agents marketing with Home Information Packs will have to belong to an independent Redress Scheme approved by the Secretary of State. You can find out more on our page on Complaints Procedure.

Properties marketed before the commencement date
Properties that are genuinely on the market before the commencement date (i.e. 10 September for sales of homes with three or more bedrooms) will not need a Pack. This exemption will apply for as long as marketing continues but the Government may appoint a date at which all properties on the market will be subject to the HIP duties, regardless of when they were first marketed.

Penalties and enforcement
The Pack duties will be enforced by local authority Trading Standards Officers. They will be able to give advice and warnings, as well as issuing penalty notices. The fixed penalty has been set at £200 initially, and can be repeated if a breach is repeated. Marketing a property without a Home Information Pack, or an incomplete Pack, will render an estate agent liable to a penalty notice.
Estate agents should also be aware that a breach of the Pack duties will be treated as an 'undesirable practice' under the Estate Agents Act and must be notified to the Office of Fair Trading (OFT) as such. An estate agent who consistently flouts the Pack duties will therefore risk a banning order from the OFT.

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