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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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. 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 Married to Amanda, they live in Penzance with their children who are slowly flying the nest, along with their three spaniels. In his spare time; Chris likes to keep fit and is 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.