The original purpose of the regulations was to prohibit “unfair commercial practices” on the part of “traders” when dealing with average consumers in relation to the sale of goods or services. It was envisaged that these regulations might be breached by, for example, a property company selling or letting a property to a person for their personal use or an estate agent acting on the sale of a property to such a person. The practices that the regulation is trying to prevent are the making of misleading statements or misleading omissions which lead the consumer to make a decision which otherwise they might not have made.

 

On the face of it this does not seem unreasonable and no doubt we can all think of circumstances where we have been sold goods or services by traders who see nothing wrong with this behaviour, particularly when it comes to the sale or letting of property. The general rule of law is that a person buying the property must take the property in its present state and condition, good or not. The buyer should have a survey to discover any problems.

 

However, the way the regulations have been written it results in a solicitor or conveyancer being treated as a "trader" and as such he would be obliged under these regulations to disclose to a buyer any known defects in a property. If, for example, the seller of a property knows that it suffers from subsidence, as the law stands, he is not obliged to disclose it. However under the regulations it could be argued that the seller's solicitor or conveyancer is obliged to ask his client to list of any known defects at the time and if they agree, those defects must be disclosed to the buyer. If the seller will not agree to disclose the solicitor will not be able to continue to act in the sale

 

A breach of the regulations is a criminal offence. Solicitors and conveyancers and their clients are in the dangerous position of having to guess what the law means. The consequence of getting it wrong for one or more of the parties is a fine or even imprisonment!

 

The regulations are new and have not yet been tested in the courts. Let us hope they can clarify very soon. It would be an enormous change in the way house buying and selling works, not necessarily for the better.