Tenants who were not told that there had been two burglaries at the property before they rented it have had their complaint upheld.
The Property Ombudsman has said that under Consumer Protection from Unfair Trading Regulations, (CPRs) the tenants should have been told by the agent about the burglaries and about the fact that security measures suggested by police had not been implemented.
The tenants found out about the burglaries only after signing the tenant agreement, through speaking to the previous tenants, and asking the police.
TPO awarded the tenants £250, saying that information about the burglaries – one of which took place only three months before viewing of the property – should have been disclosed.
Under CPRS, said ombudsman Christopher Hamer, not disclosing a history of burglaries is likely to be considered a misleading omission.
The case study is one of several related to CPRS in the latest interim report from TPO.
The report also contains TPO guidance for letting agents on CPR, which underlines that agents should “provide all material information that the average consumer needs to take an informed transactional decision”.
A transaction is not simply a decision to rent, but can also be a decision to view. Agents are advised not to use disclaimers where they have a responsibility to provide the information accurately and openly.
The report, covering the period May to August inclusive, says there were 3,454 initial complaints about letting agents within this period, up from 2,889 for the same period the year before.
Between May and August, a total of 338 cases were closed (up from 243), and 255 complaints against letting agents supported (up from 185).
The full report is here:
http://www.tpos.co.uk/quarterly_report.htm
Comments
.....'so keep up and acclimate your heads to working in a new administrative environment before our roles are diluted to the equivalent of a check list.'
In my view this environment and the dilution is already here and not only in the property industry. It has come about with hardly a word of objection from the trades unions etc (associations).
.....'so keep up and acclimate your heads to working in a new administrative environment before our roles are diluted to the equivalent of a check list.'
In my view this environment and the dilution is already here and not only in the property industry. It has come about with hardly a word of objection from the trades unions etc (associations).
Should we now change our business cards from
'Negotiator'
to
'scaremonger'
Are tenants and would be tenants expected to put their hands in their pocket and pay for their own legal or professional fees? I simply don't understand why there is the thought that tenants should be spoon fed and absolved of all responsibility when it comes to putting a roof over their head. Neither Landlord or their Agent has parental responsibility for these hapless souls but somehow Mr Hamer thinks they should
Perhaps Mr Hamer thinks Agents should be obligated disclose every single thing that would normally be revealed in a local authority search too.
How long will it be before a tenant is grumbling that the agent didn't inform them that the landlord has a mortgage on the property they were renting.
CPRs decisions aren’t capricious, they only appear that way to those who either aren’t aware of the new legislation or simply don’t understand it. We’ve known for ages this was coming and with CPRs being built for brevity there’s no room for excuses.
We can no longer make lemonade when life gives us lemons as our discretion is being gradually eroded. When to disclose is definitely the more relevant conversation but we seem more concerned with what to disclose, continually ranking situations and making unilateral decisions that aren’t ours to make.
It’s too easy to say that once again we can’t be trusted and I’d like to think we just need to be better hosts but undoubtedly agency can’t afford to repeat this. CPRs is new so keep up and acclimate your heads to working in a new administrative environment before our roles are diluted to the equivalent of a check list...
Thank you all for the debate.
In truth I am not against per se the stricter application of CPRs. At the end of the day we all need consumer protection laws. And it will keep Tesco off our turf, much to Vince Cable's chagrin.
What I am against is having a law which is so wide open to areas of grey, that you could make quite a bit of money out of writing a novel about it.
Some of you who currently think that the present situation is a good thing will change your minds when you fall foul of it. And some of you will. In some way that you currently can't see coming.
I feel this present situation will lend itself to the compensation / victims culture that exists in the real world.
I will now go and explain to my colleagues that nobody is sure of the extent to the law and that they are probably guilty of something, we will probably be sued at some point, but we will cross that bridge when we get to it.
Merry Christmas everyone.
@Frogger A good grasp on the situation, thank you!
Happy Chappy, I can see some flaws in your answers...
"Mark - I hope the following helps!!!
"So should they have taken out a box in the property guide of the local paper to advertise the burglaries at this property? "
No - this is one of the earliest opportunities isn't it?
"Should they have got the Landlord to pay for an enhanced listing on Rightmove in order to fully disclose the burglaries at the earliest point? "
No - see above
"Can anyone fill me in on what the earliest point in the advertising that full disclosures need to take place? "
At the earliest opportunity to avoid expense of potential tenants - including raking up phone bills?
"Can anyone provide me with a list of what the full disclosures need to cover -"
"the property was once burgaled,"
if you know that yes
"Jimmy Saville used to live there, "
if you know that yes
"it doesn't have a south facing garden, "
No - this might waste people's time if it's important to them to have one
"it's near a motorway,"
Depends how near, if close enough for nosie to be an issue yes
"it's not near a motorway,"
No - what if travel links are essential
"there's a Polish family living next door,"
No unless they are known nuisance then the nationality is not important - applicant might be a neo-nazi
"the Landlord's creepy,"
No - if the landlord's looking after the property himself this might matter
the crime figures are 1% higher in this street than the next one,
Yes
an elderly person passed away there 16 years ago,
No - some people would be disturbed by this
there's a tree in the garden,
No - unless it has caused problems in the past that you know of - applicant has a tree phobia
the next door neighbour's enjoy noisy sex,
Yes if you know this
there are 3 properties with dogs in the street,
No - applicant moving due to troublesome neighbours dog
the property has never flooded in the past but is on an Environment Agency flood risk map,
Yes
the Property Ombudsman lives next door,
No - applicant may have lost a complaint due to a TPO decision
it's hard to find a parking space on the street,
No unless parking is directly relevant to to the applicant and you have been advised of this - wouldn't parking be relevant in most cases?
there's a student house next door,
No unless there is a known problem from the house (i.e noise) - see TPO interim report for this exact case
there's a new highway going to be built 500 metres away,
Yes
The Landlord doesn't like the Dutch.
No unless the applicant is dutch :0)
Can anyone expand on this list (apart from the Ombudsman obviously)?"
I think the main point that Mark was trying to make was that whilst some things are important to some people they aren't to others!!
So agent declares upfront and honestly that the house has been broken into and not made safe.
Agent can't let property
Landlord gets upset and disinstructs agent
Landlord finds another agent who is not aware of the history
Back to square one, tenants move in without being informed, property just sits empty for a while first.
@As it is
The problem is that Christopher Hamer does not apply the rule of common sense - he is simply anti-agent and makes no allowance foe the tenant or buyer spotting the blindingly obvious.
Similarly, he - and to a small degree the CPRs - overlook the practicality of every member of staff in an agency being fully conversant with every aspect of the law and every aspect of what might be a potential 'necessary piece of information to impart to the tenant/buyer' for any given property.
If a tenant/buyer happens to have a discussion with someone in the agency who is not fully aware of the issues/history with a property then the ombudsman's view is that the agency has misled them.
Doubtless many people will respond with the usual nonsense about agents needing to staff up and earn their money, etc., but for every member of staff to be conversant with every nuance of every aspect of the law - together with the moving target that is the decision making process of the ombudsman - fees would have to double at the very least. Too many people in government, and on the peripheries, think that diligence, training, staffing and liability in the commercial world are all free. They need to get it into their dense heads that their actions end up being unworkable or costing the consumer money.
Finally, one of my biggest annoyances in life - new laws should not be so full of holes that they need to be tested in court for the market to be able to understand the unknown.
Some comments on here are just plain silly.
If a house has been burgled twice, and police advice has been ignored, then of course a tenant should be informed.
Not to do so would be negligent and the agent can reasonably foresee a recurrence.
Forget caveat emptor in this instance - negligence occurs when an act or omission can reasonably be foreseen to damage someone to whom a duty of care is owed.
Not just because of TWO break ins, but moreso knowing that every effort has not been made contrary to professional advice.
Most agents will try their hardest to leave out such information so fair play to the TPO!! Should have been more in compo!!
Its a bit like the PMA. (RIP)
Everyone panics, then common sense prevails by operation and illustration.
If people use their common sense as to what a reasonable person would do, then there really isn't an issue.
@Master of Common Sense
The CPRs are good and better than weve had before. Whats missing is the educational side of understanding them.
They will change, but not for the reason that they are bad. Simply parts of CPRs are yet to be test driven in court. As and when court rulings will onwards efefct how they change.
Arnie, if you place a disclaimer on rental details of tenant beware, its not worth the paper its written on.
Its more as case now of 'agent take care'
Any non checking would be classed as due dilligence not being done. Anything not declared to those who might part with time and cash to move in means they have redress if mis-informed.
By leaving decission making info out you are not highlighting potential issues, so issues by not being mentioned would be taken as not being there.
'Omisions' is seen as misleading. The blame is then on the property professional, be they agent or PROFESSIONAL landlord.
Then comes the issue where CPR's are unclear. As to what is a professional landlord. 1-2 investment units or 10-20 but handles repairs etc.
In cases, many 'professional' landlords will fall foul of CPR's and most don't know they exist.
One thing is clear.
Reading the comments posted by, I assume, professionals it is obvious that this 'law' is unworkable in the real world of marketing and selling, it should be changed.
CPR's are not just about informing everybody of everything.
ie if the tenant had been a police officer at the local station then there in theory would have been no need to mention the burglaries to the officer/prospective tenant as they in their position could be assumed of knowing and having easy access to such info.
Each property in relation to each interested applicant changes. What wouldnt bother one person looking to move in could totally irritate another.
ie if in conversation a applicant called and said they where looking to buy property to let out. Then an 18 year old lottery winner with assumed little or no property experience would need an in depth agent talk, covering potential pitfalls before you advised what they maybe purchase.
Yet a retired lawyer looking at investing £x00,000 on buy to let would be seen as a more informed applicant.
So, based on what a prospective applicant will, should or won't/isnt likely to know, means that you need a standard proceedure to market property, yet beyond, you need to look at the individuals and ask in their position do I need to do more? or have I done enough. ..........
Its not fun but agents really should be reading two docs:
OFT1508 and OFT1509con
Basically they are your 'todays' Estate Agency and Lettings guidance. Equally, when read, they progress better than where the 1979 Estate Agents Act left off. When understood, on the whole better for agents and better for consumers.
I think that the decision in this case is wrong.
Let the buyer beware should be replaced with let the renter beware.
If the law is that disclosure is required then a checklist of the items that should be disclosed should be agreed.
One of the troubles with the letting industry today is that there are various bodies making up the rules as they go along.
@Happy Chappy - Years of experience tells me that future case law will prove you wrong :o)
Mark - the most you can be sued for is the cost of the call, I doubt any prospective tenants will bother. If they do I am sure you can stretch to that :0)
Mark - I hope the following helps!!!
"So should they have taken out a box in the property guide of the local paper to advertise the burglaries at this property? "
No
"Should they have got the Landlord to pay for an enhanced listing on Rightmove in order to fully disclose the burglaries at the earliest point? "
No
"Can anyone fill me in on what the earliest point in the advertising that full disclosures need to take place? "
At the earliest opportunity to avoid expense of potential tenants
"Can anyone provide me with a list of what the full disclosures need to cover -"
"the property was once burgaled,"
if you know that yes
"Jimmy Saville used to live there, "
if you know that yes
"it doesn't have a south facing garden, "
No
"it's near a motorway,"
Depends how near, if close enough for nosie to be an issue yes
"it's not near a motorway,"
No
"there's a Polish family living next door,"
No unless they are known nuisance then the nationality is not important
"the Landlord's creepy,"
No
the crime figures are 1% higher in this street than the next one,
Yes
an elderly person passed away there 16 years ago,
No
there's a tree in the garden,
No - unless it has caused problems in the past that you know of
the next door neighbour's enjoy noisy sex,
Yes if you know this
there are 3 properties with dogs in the street,
No
the property has never flooded in the past but is on an Environment Agency flood risk map,
Yes
the Property Ombudsman lives next door,
No
it's hard to find a parking space on the street,
No unless parking is directly relevant to to the applicant and you have been advised of this
there's a student house next door,
No unless there is a known problem from the house (i.e noise)
there's a new highway going to be built 500 metres away,
Yes
The Landlord doesn't like the Dutch.
No unless the applicant is dutch :0)
Can anyone expand on this list (apart from the Ombudsman obviously)?
@Happy Chappy - "it should be disclosed at the earliest opportunity" - surely the earliest opportunity is an advert, before someone has to go to the expense of a telephone call.
And that dream is to be chosen to be the agent for his excellency Sir Christopher when he next chooses to sell his house.
In that dream I implement his CPR recommendations with a degree of diligence never before seem in the world of commerce.
Perhaps then he will understand the stupidity of some of his rulings.
@Michael Saville & other - we need clear rules, and anyone wishing to run a business who disagrees is an idiot. Your 70mph rule misses the point - that is a very clear law, whereas the Saint Christopher's interpretation of CPR are so vague as to make life impossible for agents. The idea of what agents 'ought to have known, or looked into further' is ridiculous.
@Industry Observer - I'd be interested to know which charity or non-profit organisation you work for? I presume you work for free?
Hamer needs to stop taking his axe to agents - many, many of us want to do a decent job in a moral way, but his way of thinking that agents are to blame for absolutely everything is just plain wrong.
Mark Walker - The the law is very simple to understand, if you know of something that MAY be a reason not to rent a property you have to disclose it. The law comes before your business i'm afraid.
There is nothing in the law to say it has to be in the advert, but to clarify, it should be disclosed at the earliest opportunity e.g. prior to booking an appointment (it will reduce the expediture of prospective tenants and therefore the size of any claim), You must also record when and how you have disclosed the info.
If you have no knowledge, or could not reasonably expected to to know of the issue of the complaint, It will not be upheld.
@Industry Observer - Missing my point.
Not what one's person's problem is compared to another. Do you want your houses' problems, some of which you may think are not a problem, to be advertised in the local press and the wider world in general?
@Mark and those in his camp
Tell you what as I am a glutton for punishment why don't you send me a few examples of where you are confused and if it was on a letting situation I'll tell you whether ot not it is material and covered by CPR (in my opinion!!)
Don't send the obvious like the paedophile etc
I repeat unless it is crystal clear whether something is in or out under CPR just put yourself in buyer or tenant (or just viewer's) shoes.
I really fail to see the problem here to me it is blindingly obviou whether or not something is material. But then I'm not after a 2% - 3% commission if I take a property on and sell it, or 10% - 15% if I take a property on and let it.
Not accepting aninstruction on either business stream, to walk away, has always been a difficult decision. As is dis-instructing oneself.
I appreciate that - but then it's all part of being an alleged professional isn't it?
@Industry Observer - Still doesn't cover whether all POTENTIAL problems should be on the front page of your pride and joy's sales' details, alongside a nice picture of the house.
@Mark Walker
I make you bang right. Other than the Polish comment that some people took the pathetic and obvious route with, the argument you portray is correct.
Where is the line on what should/could/must be disclosed.
I have no idea.
Let me give you all a very simple method of deciding whether infoirmation etc matters.
Just ask yourself it it was you would you be happy with the situation. Applies on purchase, letting, and above all to complaints.
So if a tenant moans about something, ask if you'd be happy with it if you or a family member lived there, had to put up with it.
So if you knew a property had been burgled twice and as recently as 3 months ago would you want to live there? Or if the boiler had broken down and you had no heating or hot water for three weeks would you be happy, want compo or to leave penalty free?
Job done - always role reverse and the answer, and truth, is obvious
@Michael Saville - The voice of someone who is about to fall foul of something in a way they never saw coming...
I'll bet it's for not disclosing that a cat once died in a house.
It's the law. Just like driving at 70mph on the motorway - we don't always like it , but we have to stick to it or we get punished. Just get on with it and stop whinging. There are rules & regs in every profession and we all say we want to stop the stereotype of Estate/Letting Agents don't we?
This is not exactly a new regulation. It's just been firmed up by the CPR lately.
If you attended your ARLA or NAEA meetings recently, you'd have received good guidance about it. But if you're not a member, well you may find yourself getting caught out!
@Industry Observer - that was exactly my point to one of our offices where they have been invited to an MA of a property with a known paedophile living next door. Under Chris Hamer's new rules it would be legal suicide for an agent to market their property.
@james & @The Frank Knight - you missed the sarcasm in the article. Sadly that is exactly the type of comment that comes from the general public. Welcome to the real world.
@james - The serious point of the article is whether there is now a need to sweep away advertising properties and swap for a list of reasons why someone might not want to buy or rent your property, thus effectively financially crippling you.
@MCS - Thank you for grasping this
@As it is - No, that is not acceptable.
@The Frank Knight - Do you want the next advert in the local newspaper for your own house sale to carry reference to your house being burgled? And on the internet and in the brochure and on viewings et al...
@EW - At which point to disclose if they did know? I think TV advertising is clearly a minimum.
@Norwich - Hallelujah.
The Ombudsman has made a huge mistake this is clearly the wrong decision!
2 Bed flat £340 per week
The flat comes with no parking permit and has been burgled 3 times over the last 6 months and the Landlord has refused to install a security alarm. The property backs on to a football ground and the front garden often used a public convenience but impatient football fans. The property has also been subject to a number rat infestations over the last few years. Other than we recommended an early viewing to avoid disappointment!
The adverts of the future! Lets hope the ombudsman see sense before it is to late.
Having read the full report, it seems that in this case the agent was the managing agent who dealt with the property when it was burgled and as such they SHOULD have disclosed the fact especially in light of the fact recommendations from the Police were in part ignored.
I too think TPOS are spot on with this. Caveat Emptor is a different matter. It an issue of what is reasonable.. Had the tenants complained because the road was busier than they thought because of a local school, or because the bus took longer than they supposed, or the train station was a longer walk than they had thought - then fine.
This however is an issue which a reasonable person would not have known yet which could have a profound impact. eg - if the tenant was a young lady living alone, or an elderly person.
And the descent into madness begins...
On the one hand I get it - if I was moving in to a troublesome property (whatever the cause) I would honestly hope that someone told me.
I have always been the type of agent to point out pitfalls in a property (i.e. this property needs X, Y & Z but that is why the price is so low).
I have also tried to make sure that people know in advance about the silly things like electricity transformers (now I do it as I book appointments, but I did that once on a viewing and the reaction from the woman I was showing was hilarious - she literally ran screaming in the opposite direction - it had me laughing for days).
On the other hand as Mark says, where do you draw the line?
I can appreciate that because of the landlords' decision to not deal with the problem that perhaps the agent should tell incoming tenants that they might need to look at improving security.
What I think it needs is for landlords to be made aware that agents cannot afford to risk hiding the truth about properties because it is us that will eventually pay the price.
Proper regulation and proper entry exams would mean that we wouldn't have ended up in this sorry state (perhaps).
The problem in the end is that as a buyer or tenant people want us to be nice, decent and honest.
Those very same customers, once they become a vendor or landlord, wants us to be money hungry, deceitful and dishonest (as long as it is their favour of course) and will nearly always instruct an agent that tells them what they want to hear.
Human nature, hey. Who would have guessed?
Worryingly, the Ombudsman says in his report; "It is effectively the case that the principles of ‘caveat
emptor’ no longer apply"......
So, an Ombudsman (thinks he) has just changed English Law in so far as tenants are concerned, and....
He's confirming his office places no responsibility on the tenant to use any common sense when renting a property, and.....
He has effectively stated that he no longer intends to carry out a major part of his role, namely, to fairly represent the position of his member agents.
Please can Mr Ha(r)mer publish his own Complaints Procedure - because it sounds like we're going to need to know what it is.
This is extremely interesting. The key issue omitted is whether the agent knew of these break ins.
If they did, then they should disclose and explain what steps had been taken - such as new locks, alarm etc as applicable.
If they didn't know, then I cannot see that they would be accountable if the Landlord failed to disclose this information. Further, there remains no guidance on whether agents should make specific enquiries and to what extent. I remember one buyer who went balistic when she found out that the old carpets in a refurbished house had been green in colour as she could never live anywhere that had ever had green carpets. Strange but true.
I therefore assume that the agent was aware and as such His Royal Ombudsmaness is right that such information could reasonably affect the transactional decision.
"Polish family living next door," - unbelievable comment Mark.
I have to say that I would want to know if a property had been burgled more than once and what measures had been taken to prevent a recurrence.
Such information would definitely affect my wife's decision to rent having been through the trauma of a burglary in the past.
TPOS, in my opinion, got this right.
I suggest placing ones fingers in ones ears when the Landlord starts talking about their past issues.
Ignorance is bliss.
Anyone ever heard the phrase 'the law is an Ass'?
This one is.
If the agent does not know or has never been told what are they supposed to do? If they do or are told Industry Observer is right to suggest refusing the instruction until this silly legislation is repealed.
Mark - not sure what is wrong with Polish people.
If you can show that you have tried to inform applicants of anything that might affect their decision to view/rent then you will be fine.
Hiding/not telling is a cheap tactic that agents have used for too long. IMO I wish agents acted decently
Maybe the best decision if an agent knows of adverse details that are likely to fall foul of CPR is simply not to accept an instruction to sell or let?
Seems easy enough
So should they have taken out a box in the property guide of the local paper to advertise the burglaries at this property?
Should they have got the Landlord to pay for an enhanced listing on Rightmove in order to fully disclose the burglaries at the earliest point?
Can anyone fill me in on what the earliest point in the advertising that full disclosures need to take place?
Can anyone provide me with a list of what the full disclosures need to cover - the property was once burgaled, Jimmy Saville used to live there, it doesn't have a south facing garden, it's near a motorway, it's not near a motorway, there's a Polish family living next door, the Landlord's creepy, the crime figures are 1% higher in this street than the next one, an elderly person passed away there 16 years ago, there's a tree in the garden, the next door neighbour's enjoy noisy sex, there are 3 properties with dogs in the street, the property has never flooded in the past but is on an Enviromnet Agency flood risk map, the Property Ombudsman lives next door, it's hard to find a parking space on the street, there's a student house next door, there's a new highway going to be built 500 metres away, the Landlord doesn't like the Dutch.
Can anyone expand on this list (apart from the Ombudsman obviously)?