2.2 For agents only: accepting instructions from a landlord
2.2.3 Consumer Protection from Unfair Trading Regulations 2008
When offering services to a landlord:
– An agent must comply with the:
— Consumer Protection from Unfair Trading Regulations 2008 (CPRs)
— Business Protection from Misleading Marketing Regulations 2008 (BPRs)
— Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs)
— Supply of Goods and Services Act 1982 (SGSA); and
— Unfair Contract Terms Act 1977 (UCTA).
– An agent must not engage in any unfair commercial practice by saying, doing or omitting to do
something which causes, or is likely to cause, the average consumer to take a different transactional decision.
– An agent should refer to the Competition and Markets Authority’s Guidance for lettings professionals on consumer protection law for further information and guidance on the regulations.
This section sets out the main consumer regulations that agents must comply with. Lets take a look at them.
These apply when one party is a consumer and the other is a business.
These were brought in as a result of an EEC directive and aim to make contracts fairer when they have been drafted by a business for use with consumers.
All tenancy agreements used by agents will be subject to them as all tenants will be deemed to be consumers.
So far as the agency agreement is concerned, the UTCCR will apply unless the landlord is not acting as a consumer – ie is a professional landlord.
Note that the case of OFT v. Foxtons in 2010 looked at the application of the UTCCR as applied to renewal commission. You can read posts on this on the Landlord Law Blog here.
This act is the equivalent of the Sale of Goods act which applies when items are being sold. The SGSA implies into all contracts where someone agrees to carry out a service for another person, clauses to protect the customer.
These include clauses
- providing for the service to be carried out with ‘reasonable care and skill’
- to be carried out within a reasonable time, if the time for performance is not set out in the contact, and
- for the ‘consideration’ or price for the service (if not set out in the contact) to be a reasonable one
Note that these clauses, or customer rights, cannot be excluded or the effect of them removed, by any contract clauses where the customer is a consumer.
Note also that agents, becuase of their ‘fiduciary duty‘ are subject to a higher duty of care than those set out in this act.
The Competition and Markets Authority’s Guidance for lettings professionals on consumer protection law
This is a government guide which you will find on the GOV.UK website >> here. There is a full guide and a short summary two page leaflet. Both are required reading for all letting agents and property managers.