Making an Estate Agents Negligence Claim
Estate agents have been held liable for losses arising from a failure to prepare and distribute sales particulars of a property. Estate agents negligence claims have also been made where estate agents have failed to give accurate advice on market values.
Estate agents facing a negligence claim often rely on disclaimers. Any disclaimer will be subject to the Unfair Contract Terms Act which requires it to be reasonable. However, the courts have upheld disclaimers in estate agents’ particulars so this does have to be carefully considered.
In our experience estate agents negligence claims need to be assessed on a case by case basis. If you send us details of your claim then we will gladly provide you with a free assessment.
“A light and airy shoebox” – The legal liability of estate agents
Emma Slade, a solicitor and partner specialising in Estate Agents Negligence cases considers the legal liability of Estate Agents
Estate Agents used to get pretty bad press with accusations of over-inflated prices (both the house prices and their fees), novel descriptions of a “bijou property with an easily maintained compact garden” (a property no bigger than a cupboard with a concrete slab outside to you and me) and the pressurised sales pitch. A lot of this stopped with the Property Misdescriptions Act 1991 but that was repealed in 2013. So what is the situation now?
Consumer Protection Legislation
Aside from standard common law, additional protection is offered by the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the Business Protection from Misleading Marketing Regulations 2008 (BPRs) that have been introduced. Not unsurprisingly, these regulations are little known. So much so that in 2012, the Office of Fair Trading felt compelled to write a dedicated guide on how the CPRs and BPRs affect property sales. A short article like this can't go into too much detail about the CPRs, but the basic premise is that Estate Agents need to protect consumers, business customers and competitors fairly. Examples are given in the Guide as to unfair practices. This includes things like giving false or misleading information, hiding or failing to provide material information, exerting undue pressure and “not acting with the standard of care and skill that is in accordance with honest market practice and in good faith”.
What Can Consumers do?
If a consumer or business feels that the Estate Agent has acted unfairly, then their local Trading Standards office can investigate the matter. This can result in a fine against the Estate Agent or a more serious criminal sanction. This does not however help though the poor consumer who may have suffered, not only a financial loss, but stress and inconvenience. So what can be done? The most obvious route is to complain to the Estate Agent direct, but if this does not result in a satisfactory outcome then the next step might be a complaint to the Agents' regulatory body.
The Property Ombudsman
In some cases the Property Ombudsman can help. The ombudsman can make an award of up to £25,000 for financial loss, stress and inconvenience where appropriate. But be careful with that. If your claim is purely for stress and inconvenience, then the Property Ombudsman is probably the route to go as the Courts do not tend to look favourably on claims for 'stress and inconvenience'. If your claim has a financial value that is greater than £25,000, then caution needs to be exercised because although the Property Ombudsman’s service is free, it is also final and binding. This means you cannot subsequently issue proceedings in the Court to seek a top up if the amount awarded falls short.
Property valuations & estate agents negligence
The most obvious instance where a claim against an estate agent is likely to be greater than £25,000 is where the property has been incorrectly valued or materially important information has been withheld that will affect the value. Valuing a property can be more of an art than a science. Rarely will there be a fixed, objective and unarguable valuation. It is uncommon for two Estate Agents asked to value a property to come up with precisely the same figure. However, the Courts have indicated that if there is a greater than 10% variation in price, an Estate Agent will be considered to have breached their duty of care to the consumer. Other issues that can also affected property valuation is a poor survey result or even the presence of Japanese Knotweed. Interestingly, the OFT Guidance specifically cites these two factors as potential issues so if there is evidence that the Agent was aware of a survey that revealed significant problems or that Japanese Knotweed is present but the Agent fails to advise the purchaser, they are likely to be found guilty of breaching the CPRs.
Actions in the Civil Courts
Although the regulations do not allow for a private civil claim, a civil court will certainly take them in to consideration when determining whether an Agent breached a duty of care. If there has been a successful criminal conviction for breaching the CPRs, provided that you can establish the Estate Agent owes you a duty of care, a civil court will most certainly find that the Agent has breached that duty.
Free estate agents negligence legal helpline
If you feel you have a negligence claim against an Estate Agent, please call Emma Slade on 0808 139 1595 for a free assessment. Alternatively, you can contact us by e-mail at [email protected]