Data Protection – Are estate agents breaking the law? – The short answer? In my opinion, almost certainly!
At some point, many people reading this, will have decided that their current agent is not up to the job and they need to try a new agent. At this point, you will very often find that your new agent will request or, your existing agent will supply without prompting, a list of people who have been sent details of your home or, have viewed it whilst it has been marketed. Many of these agents claim, and genuinely believe in some cases, that this is a requirement of The Property Ombudsman’s (TPO) rules. But it isn’t; the TPO simply requires that an agent clearly explains:
“that you may be entitled to a commission fee if that client terminates your instruction
and a buyer that you have introduced goes on to exchange contracts on the property
through another agent within 6 months of the date your instruction ended.
If no other estate agent is involved this time limit extends to 2 years.” (Source – TPO Code of Practice Rules 3Q -3S )
Nowhere in the TPO rules does it state that an agent must ask for or pass on any names and addresses of people who have or may have been introduced to the property. More than that, unless the agents involved take steps to anonymise the information (thus rendering it largely useless as a means of identifying potential purchasers introduced by an agent) or, request and obtain the explicit permission of everyone on that list to pass their private information to another business they are, or may well be, breaking the Data Protection Act.
“The Data Protection Act 1998 (DPA) is concerned with ‘personal data’.
It says that ‘personal data’ means:
data which relate to a living individual who can be identified—
(a) from those data” (Source – http://www.ico.org.uk/ )
In simple terms; if you register with agent ‘A’, they are prohibited from sharing your data with anyone else unless you have given permission for this to happen. However, before you beat an indignant path to the ICO (Information Commissioners Office) to complain about an agent, it is possible that this permission could have been granted by you by passively agreeing to an agents data protection terms and conditions when you first registered or, actively (by being asked directly for permission by the agent).
IS THERE ANY POINT IN REQUESTING/ HAVING THIS INFORMATION?
In my view, no. The term ‘introduced’ as described by the TPO, can mean different things to different people and, will depend, hugely, on the terms of each agents contract and, can be very wide-ranging in any case. For example; how many people will have first become aware of a property via Rightmove, social media or an agents own website whilst browsing the internet at home or at work and printed off the agents details? No record of that person will be held by the agent and yet; most agents would (rightfully) claim that person was ‘introduced’ to that property by their advertising.
“WHAT FORM WOULD THE INFORMATION HAVE TO TAKE TO ANONYMISE IT IF I DECIDE TO REQUEST/ SHARE THIS DATA?”
If you are an agent reading this, you should make your own legal checks but, the verbal advice I received from the ICO at the time of writing was that just a surname and the first half of a postcode (e.g. Mr Wood TR18) might be regarded as adequate for the purposes of the Act but, in the case of unusual or less common surnames, this would still leave the personal data being able to be identified and thus, a breach. So, as I said above, if you can’t identify a potential buyer from a list due to the data being anonymised, there doesn’t seem much point having or passing that information on in the first place. The link to the ICO is included above.
“I AM GOING TO TRY SELLING MY HOME PRIVATELY AND MY AGENT WON’T GIVE ME THIS INFORMATION?”
If you have asked your agent for information about people who may have or actually were introduced to your home and they won’t give it to you, as you have seen above; they are acting correctly. If you are worried about having to pay commission for a private sale, I would recommend that you read my blog “When is a private buyer, not a private buyer?”
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About Chris Wood: Chris is an estate agent with over 25 years of property experience. His business, PDQ Estates Ltd is based in Penzance and Helston, West Cornwall. He has worked with all sizes and types of businesses from single office independents to the management team and board of RBS and Tesco. A former President Elect of the NAEA and board member of NFoPP until he resigned in 2009, Chris has always championed the highest professional standards for estate agents in the UK. No stranger to the media, he has appeared on various programs including BBC, News 24, ITV, independent and BBC radio and is a regular contributor to trade journals, local and national Newspapers. Chris is on Klout LinkedIn Ecademy Facebook and Twitter Chris is a former member of the Territorial Army. In 2010 he mobilised for a tour of duty in Afghanistan with 1 Rifles as part of 3 Commando Brigade.