Why can’t I keep my home marked as ‘For Sale’?

Frustrated woman pulling ger hair

Why can’t I keep my home marked as ‘For Sale’?

“WHAT IS MY AGENT PLAYING AT?”

Great News… The sale is agreed (subject to contract – stc) but you’ve had your fingers burned by a time-waster before so, when your agent asks you whether you want to keep marketing the property (as they must) you say you do BUT, you can’t understand why it is still being advertised as ‘under offer’ or ‘sold stc’ a few days later.

First of all, don’t be cross with your agent, they are acting in accordance with the Law (and protecting you from possible prosecution too!)

Whilst it seems entirely logical to mark a property as ‘for sale’ if you have asked for it to be kept marketed; Consumer Protection Regulations, The Advertising Standards Authority and the Property Ombudsman all forbid this in this instance. Why?

The Consumer Protection Regulations (CPR) make it clear that a property’s status must not be misleading; it also states that anything that may affect a consumers decision to buy must be communicated at the earliest possible opportunity. As such, to describe a property as ‘for sale’ when there is a sale proceeding on it may well be regarded as a misleading status and, thus, a breach of the regulations.

For example; if a potential buyer were to see a property for sale and book a viewing on it, having arranged time off work, childcare, travel arrangements etc, only to be told later that the property was, in fact, already under offer; the buyer may well feel aggrieved and seek compensation for their loss and, bring a prosecution under the CPR regulations (a prosecution for which the owner/s would be as liable as the estate agent)

The Advertising Standards Authority (ASA) also require that an advert is fair and does not mislead the consumer, nor must it mis-describe the availability of a product or service. Having spoken with the ASA earlier in December 2013 about this very matter arising from a customer who wanted their home advertised as ‘for sale’ after a sale had been agreed; I can confirm that the ASA would regard a property being advertised as ‘for sale’ when, in fact, there was a sale, subject to contract, agreed on it, as a breach of their code and, an offending agent or private seller could face prosecution as a result.

The Property Ombudsman (TPO) – updated 15.8.14 The new, 2014 TPO rules on this specific matter give clearer guidance than the previous edition (rules 7i & 9d) – however, some agents are mis-interpreting the wording of rule 9d to mean that the property should be marketed as available when this is not the case (see statement from TPO below)

UPDATE: 27.04.14 The OFT recently brought a test case on this principle.

UPDATE 08.08.14 The new TPO code (rule 9d) effective from the first of August 2014 seeks to clarify this point but, appears to contradict CPR regulations and ASA codes. I have contacted The Property Ombudsman for further information and will post on here when I have received a response (15.8.14 – response now received – see above)

UPDATE 15.8.14 Clarification from TPO received today “Ongoing marketing must state SSTC as this is material information. Para 7i & 9d cover these points and comply with CPRs & ASA” @TPOmb 

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I welcome feedback so please feel free to leave constructive criticisms or ask questions below. If you could also take a second to rate my blog and pass it on to others who you think may find it interesting that would be great. Thanks.

Chris Wood of PDQ Estates Ltd

Chris Wood

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 forestate agents in the UK and has been a lead campaigner against portaljuggling. 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 KloutLinkedIn Ecademy Facebook and Twitter . In his spare time; Chris likes to keep fit and was a long-standing 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.

14 thoughts on “Why can’t I keep my home marked as ‘For Sale’?

  1. Hi Chris, great thoughts there and lots to think on.

    What do you know on how this effects repossessions as lenders usually state any property has to be kept ‘fully available and advertised’ until exchange of contracts. I.E. is telling someone the property has an accepted offer progressing enough, or does it have to be actually written somewhere would you say?

    • Hi Richard
      Thanks for your kind comments. I am sure that the mortgage companies will expect that the law is complied with, though I am also sure that some repossession managers may need educating as to what the obligations and requirements are in order to remain compliant.
      Chris

  2. A question pertinent to the above: If a house is advertized “for sale” when there is no intention of selling it, is this legal?
    There is one tenanted house in Halifax West Yorkshire I’m 98% sure is a “fake-sale”, and two estate agents are involved. It’s been on the market now at a reasonable price for some three years, and it’s proved impossible to get a viewing. There is always some excuse…

    • Hi George. If a property is being described as ‘for sale’ when it isn’t then this may well be regarded as an offence. It will also be an offence under the town and Country planning Act if they have an agents board outside if it is not actually for sale. I would advise you contact your local Trading Standards officer.

  3. Hi, I have come across this exact situation and I made an enquiry with the ASA today. The agent, which is high-end nationwide, says the bank/receiver has instructed them not to mark the property as Under Offer, despite a sale having been agreed and contracts having been issued. The agent is brushing off my requests that the property is properly advertised and says your blog is incorrect and of no informational value, since it is required to follow clients’ instructions. Do you think that the ASA may like a test case?

    • Hi Anthony. I stand by my blog. An agent has a legal duty to follow clients instructions insofar as they comply with the law/ codes of practice but, the law has primacy and an agent cannot break the law (albeit with good intentions) because a client tells them too. I would contact the ASA and discuss your concerns with them. The property Ombudsman may also be able to help. By all means quote my blog if it helps. Good luck.

  4. Thanks, Chris. I suspect there may be no other realistic offer on the table in reality, and they are just trying to get me to bid against myself, which is why they can’t mark it as Under Offer. But now they have said in writing that it is Under Offer, they have boxed themselves in by their own dishonesty.

  5. Hi Anthony. It is the law that all agents must submit all offers to an owner and confirm all offers in writing (except in specialist circumstances). You (quite rightly) cannot force an agent to disclose the level of any other offers but, it is an offence under the Property Ombudsman code (9d to 9h) to mis-represent the existence or level of other offers.

    The new code that came into force on the first of this month appears to contradict previous advice about marketing after sale (9d) and, in my opinion Consumer Protection Regulation and ASA (Advertising Standards Authority) advice. Accordingly, I have contacted the the Property Ombudsman (TPO) for clarification. In the meantime, here is a link to the TPO code: http://www.tpos.co.uk/downloads/TPOE27-2%20Code%20of%20Practice%20for%20Residential%20Estate%20Agents%20Effective%20from%201%20August%202014.PDF

    • The agent says a solid sale is progressing quickly with an enthusiastic cash buyer. But the agent also says the buyer has personal and financial problems that are preventing the sale from completing (month after month). Plus, the property’s status on their website never changes (month after month)

  6. I would ask to speak to the manager or, the area director and express your concerns. Failing that, I would then contact the Ombudsman’s office (check which scheme they are a member of first) to have an informal chat and take some advice from them. Good luck

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