Rudolf: Law Society protocol change would help
It may take strong enforcement action by the Competition and Markets Authority (CMA) to make the property sector realise that upfront material information (MI) remains a priority, the annual industry roundtable organised by the Council for Licensed Conveyancers (CLC) has heard.
The event took place not long after National Trading Standards estate and letting agency team withdrew its MI guidance in May.
This was because it had been based on estate agents’ obligations under the Consumer Protection from Unfair Trading Regulations 2008, but these were superseded and replaced by the Digital Markets, Competition and Consumers Act 2024 (DMCC), which is policed by the CMA.
Beth Rudolf, director of delivery at the Conveyancing Association and co‑chair of the Home Buying and Selling Council, expressed her frustration that the media coverage of this implied that MI was being ditched in some way – also releasing conveyancers from the focus on it – when in fact the underlying requirements on agents have not changed. But they need interpreting now without the specific property-related guidance.
At the same time, she pointed out to the roundtable, the CMA has far greater enforcement powers than National Trading Standards.
“What we hope is that, if CMA does not, the industry will come together to produce an update on that guidance,” she said – but fundamentally the content would not be different to what came before.
Sally Holdway, director of technology consultancy Teal Legal and co-founder of the Home Owner’s Passport, said: “The rules are absolutely there in the DMCC. It is very clear what you have to adhere to, but the challenge we have is the lack of visible enforcement, or clear guidelines.”
What was needed, participants agreed, was a couple of hefty fines from the CMA to focus minds. Beth Rudolf explained: “The moment we see the big fines coming down, the agents are on board.
“I’m confident the CMA will start by asking for undertakings from agents to comply and, if they do not comply, then they will be fined. That’s what they did with the new-build developers and the mis-selling of leasehold properties.”
But while uncertainty persisted, the fear was that such momentum for MI as had been built up will dissipate.
One way to counter this, she said, would be to include it in the Law Society’s national conveyancing protocol. While this cannot influence estate agent behaviour, it heavily influences conveyancers.
Epi Pearce, risk manager (property risk) at Nationwide Building Society, highlighted too a recent announcement by Nationwide and Rightmove to pull in the MI from the site to provide real-time information about the likelihood of getting a mortgage on a home before even viewing it.
“That is the biggest step forward that we have had in a while,” she said.
Stephen Ward, director of strategy and external relations at the CLC, said this was “an example of the prizes that are scattered across the process that are already there for the taking now”.
He said the Digital Property Market Steering Group – a coalition of government and industry partners that aims to accelerate the adoption of digital technology – was “our best hope”.
He continued: “But we need some real unity there so that all of the organisations involved and driving this transformation are truly working in concert.
“We need a coordinated campaign to ensure that the people who are delivering this on the ground, whether it is the estate agents, the conveyancers, the mortgage brokers, or the staff at the lenders, understand the benefits of this change for them and their clients and are confident about what they can do.”