Letting and Estate Agents: does your website comply with the law?
Whether you are an ‘online’ agent or running a more traditional business model, for any agent in the property sector, your website is almost certainly the single most important element of your business for attracting new buyers, seller, landlords and tenants.
Agents involved in property sales, management and lettings are now subject to a broad range of regulations relating to what information must be visible on their websites. With so many legal requirements to meet, it is fairly rare that agents fully comply with the law in this area and local authority trading standards enforcement teams are increasingly taking an interest in this area.
There are a few common errors which we see being made repeatedly, even by agents who are trying to meet all of their legal duties. Some of the most common mistakes are:
1. Not using the correct company name
If you are trading as a limited company (or another form of incorporated business structure) you must use your official company name (e.g. Example Limited) on your website, even if you use a trading name for most day to days purposes. Trading names can be used but then there will need to be text at some point on the website (usually in small print at the bottom) along the lines of “Examples is a trading name of Example Ltd”. You must also supply certain key details about the company, including its registered address and company number. This information should also be on all communications from the company including letters and emails.
Failing to do this is a criminal offence and both the company and its directors can be prosecuted. We commonly see company names not displayed (especially in email) or not displayed correctly with the name missing key parts or confusion between the trading name and actual registered company name.
2. Failing to display details of their fees
The Consumer Rights Act 2015 introduced a duty on agents to display details of their fees to landlords and tenants on their websites. This duty requires all fees which landlord and tenants are likely to be charged in preparing or setting up a tenancy to be displayed – not just those fees which are ‘compulsory’. The fees must also be expressed in a manner which allows the consumer to understand what the charge is for an in what circumstances they would have to pay it. That means that each fee needs to have a clear description with it of what it is for.
This is an area where local authorities are increasingly keen to levy civil penalties of up to £5,000 per breach.
3. Not giving details of membership a redress scheme
Agents should be a member of one of the redress scheme (The Property Ombudsman, the Ombudsman Services Property, or the Property Redress Scheme). On their website they must indicate whether they are a member, and give details of which scheme they have joined and state their membership number.
4. Failing to provide key information required by The Provision of Services Regulations 2009
Agents should be complying with The Provision of Services Regulations 2009 which requires information about professional liability insurance, VAT registration and membership of professional bodies to be made available to service users. In most circumstances this information should be easily accessible on the agent’s website.
5. Giving misleading information about your services, charges and pricing
In addition to complying with the duty under section 83 of the Consumer Rights Act to publicise fees, agents must consider whether their fees are expressed clearly. Fees quoted to consumers must be given inclusive of VAT, for example. It will not assist agents if they accurately state their fees but give a misleading account of the services they provide.
The Advertising Standards Authority (ASA) has a longstanding interest in the activities of letting and estate agents and in particular online advertising. They are increasingly prepared to take action over misleading statements on websites by agents.
6. Not providing an adequate privacy statement
You may already have a website privacy policy which explains to users how their information will be used. This is already a requirement under data protection law.
However, the General Data Protection Regulation (GDPR) will increase the duties on all who process data. For agents this will mean they must develop a provide customers with a privacy notice, and usually it will be appropriate to publish this on the website.
The GDPR comes into force on 25 May 2018 and so agents must begin their preparation now.
These are just a sample of the issues with agent’s websites which we encounter. The continued political and media focus on rogue landlords and letting agents is encouraging local authorities to issue substantial penalties for breaches of the law relating to letting agent websites.
At Anthony Gold we are well placed to advise on how those in the property sector on how to comply with the legal regulations for property agent websites and to deal with enforcement action including tribunal appeals and criminal defence.
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