Agency (P&S / L&L) Flashcards
What is the difference between purchase and sale / leasing and letting?
P&S relates to how the property is valued with the goal of achieving the highest price
L&L relates to how the property is marketed to achieve the clients objectives.
What are required in agency terms of engagement?
Firstly consider “Am I competent?”
The terms must then contain:
- Basis of instruction
- Rights of the agency
- Fee
- Expenses and disbursements
- Confirm no conflict
- Money laundering checks
- Timetable for fees and disbursements
- Complaints procedure
Signed and returned before marketing.
What is the purpose of the Estate agents act 1979?
Seven key principles:
- Honesty and accuracy
- Clear terms of engagement (S18)
- Liability of costs
- Clarity regarding personal interests (S21)
- Discrimination
- Obligation to inform client of offers
- Client money handling
What is the consequence for breaching the Estate Agency Act 1979?
Could be:
- warning order
- prohibition
- fine
What are the two key section in the Estate Agents Act 1979 and what is their purpose?
S18 - Specify all costs in writing, in advance of an instruction. Costs should be itemised. Also covers basis of agency and agency rights.
S21 - need to declare personal interests and connected parties, in writing. Must also be on particulars and HoTs. If impartiality threatened, should step away.
Do personal interests or connected parties prevent agents from acting on an instruction?
No. However there must be the same business arrangement as with any other independent instruction. Even if there is no fee agreed between the parties, conflict checks and terms of engagement etc. are required. If impartiality threatened, don’t act.
What is the purpose of The Consumer Protection for Unfair Trading Regulations 2008 (CPRs)? Please outline what they cover. (IMPORTANT ONE)
Relates to the WHOLE agency process.
Extends agents duty of care to consumer.
Requires the surveyor to give accurate info and declare everything known. Reasonable DD. If info found later, declare
Offenses include undue pressure, omissions, hiding information, misleading information. Examples include misleading CGI in brochure etc.
Policed by trading standards
What is the purpose of Misrepresentation Act 1967?
Governs where a false statement of fact or misrepresentations in pre-contractual negotiations, either knowingly or unknowingly, which has the effect of inducing the party to purchase.
- Agent has obligation to check info is reliable.
- Disclaimer clauses can protect agent who has done sufficient DD.
Caveat Emptor - Let the buyer be aware
How do CPRs and BPRs differ from the Misrepresentation Act 1967?
CPRs and BPRs govern unfair treatment and misleading info THROUGHOUT THE WHOLE marketing process eg. a misleading CGi in a brochure or plan. You have a duty of care to the purchaser. Criminal offence.
A misrepresentation is a statement of fact that is incorrect, either knowingly or unknowingly, which induces a transaction eg. Lying about a tenants rental payments. Civil offence.
If a question is asked which the agent does not know, after doing reasonable research, are they liable?
No. If the agent has done sufficient research and responded saying “not to the best of my knowledge”, that’s okay.
What are the different agency rights? How do they differ?
Sole Agency Rights - remuneration payable if purchaser was introduced or negotiated with by the agent during their appointed period. No fee if LL sells himself.
Sole / Joint sole Selling Rights - remunerations paid if property exchanges during period which agent was appointed, even if agent didn’t find the purchaser.
What is a ‘ready, willing and able purchaser clause?’
If client pulls the plug at the last minute, you will get an abortive fee.
Why are the EPC requirements in agency marketing?
A valid EPC is necessary before marketing. It should be included in any brochure so to not waste time, later finding the property is illegal to let under MEES
What properties do not require an EPC?
Places of worship
Listed buildings
Medical practices
Stand alone buildings with usable floor are less than 50 sq m
What is the general process of selling a building when you receive a new instruction?
- Competent?
- Conflict check
- Terms of engagement
- Inspect property
- Measure
- Valuation
- Report (Value, marketing etc.)
- Market
What are the methods of sale?
- Private treaty
- Informal tender
- Formal tender
- Auction
What is private treaty, it’s pros and it’s cons?
An open market offering with free negotiation. A private matter.
Pros: control of process, no obligations, inexpensive, confidential.
Cons: Gazumping, gazundering, withdrawals.
What is informal tender?
Best bids. Give a date time limit. Client under no obligation to accept best offer. Used when there is good interest in the property as part of the private treaty process.
What’s is formal tender?
Often used by statutory body to show they got the highest price. Vendors draw up terms of sale with binding contract. Seals bids. No ability for parties to amend bids. Usually set that highest bit wins. Bids opened in front of client and witness.
What are the pros and cons of auctions?
Pros: Quick, final, wider bid exposure, good for unusual assets.
Cons: cost, lack of certainty, blight, short marketing period.
What regulates board sized?
Town and County planning regulations 2007.
- Flat = 2.0 sq m - V board = 2.3 sq m
Cannot protrude more than 1.0m from buildings
Cannot be more than 4.6m from ground
From deal completion, Max 14 days to remove
What can a client do to prevent a purchaser pulling out of a sale at the last minute?
Submit a notice to complete
- buyer pays for
- if passes agreed date, LL can keep deposit and remarket
- Specific performance claim
What do you consider when advising your client on offers received?
Price Source of funds Timescale Conditions Track record Repetitional damage
What are the implications of selling a property that is VAT elected?
Purchaser would need to find an extra 20% to pay the VAT unless the purchase is via a VAT elected vehicle or it is a ‘Transfer of Going Concern’. Legal advise recommended on this.
Why would a LL elect a building for VAT?
They can claim back the VAT for any works etc.
What tenants cannot claim back VAT?
Banks, financial institutions, charities, medical practices.
When would you decline a sale instruction?
Not competent
Conflicted
Terms of engagement can’t be agreed
AML CTF
PII wont cover
What RICS core materials are available for an agency instruction? Please give some detail as to what it’s about.
RICS PS ‘Commercial Estate Agency, 2016’
This sets 12 mandatory core principles such as acting honestly, due diligence, clear terms, no discrimination.
Advice on:
- securing instruction
- marketing
- methods of sale
Are you aware of any potential new legislation regarding the purchase and sale of property?
Public Register for Overseas Property Owners in the UK
- a register proposed by Gov to assist in understanding the beneficial owners
- this is with the aim of reducing money laundering
How do Business Protection Regs differ from Consumer Protection Regs?
They are fundamentally the same however, they relate to business to business activities rather than vendor to consumer.
What are the potential penalties for breaching CPRs or BPRs?
Could be:
- unlimited fine
- prohibition
- compensation
- Max. 2 yrs imprisonment
What is Caveat Emptor ?
“Let the buyer beware”
This means the buyer is ultimately responsible for checking the quality and suitability of the property before purchase.
- An agent is responsible to provide sufficient info, and anything the discover later.
- agency can’t be blamed for issue in property found at a later date, assuming agent did proper DD.
What is the key legal case to establish whether damages are owed under the Misrepresentation Act, 1967?
Henley Byrne & Co. v Heller and Partners:
- Foreseeability of damage
- Proximity of relationship
- Fairness of actions
What is the penalty for a breach of the Misrepresentation Act, 1967?
Civil offence:
- Sued for damages
- Contract rescinded
What are the key elements of the Consumer Rights Act, 2015?
Agents must clearly display a summary of charges online and in writing.
- All about unfair terms in a business contract
- creates new rights and forms of remedy
Are you aware of any new potential regulation regarding agency?
The Regulation of Property Agents
- Proposed independent body to regulate agents
- new code of practice
- transparency of charges and disclosing conflicts
No date set…
When would planning permissions be required, should you want to install a board?
The following: - Listed buildings - illuminated signs - larger signs —> flat boards over 2.0 sq m —> V boards over 2.3 sq m
What is SDLT and what are it’s commercial bands?
A tax on the purchase of a freehold or long leasehold interest over a certain value. The commercial brackets are:
—> sub £150k = zero
—> £150k to £250k = 2%
—> over £250k = 5%
Note: any purchase gets £150k exemption and the £100k between £150k and £250k at 2%.
What is a capital allowance?
A form of tax relief on capex for construction or the purchase of commercial property. Can relate to fit out, plant, machinery etc.
What act governs the Registration of property in the UK?
The Land Registration Act, 2002
What are the requirements on agents under the Land registration act, 2002?
Must register the sale of any freehold, and letting of any leasehold (over 7 yrs) with the land registry. This must now include a land registry compliant plan.
What are the key elements of a land registry compliant plan?
- Scale
- Bar
- Scale locational map
- Full address
- North point
- Demise outline in red (on inside edge)
What considerations would a sales agent have in deciding how best to market a property?
- Client objectives
- Market conditions
- Type of property
- Target market
- Timing requirements
What are the differences between formal and informal tender?
Informal / formal
Often further negotiation / no negotiations
Not always highest bid / usually highest bit
Not immediate sale / can be immediate sale
Mechanism to invite parties / final process
Part of private treaty / independent
What would you advise to be included in any formal or informal tender process?
A caveat that “the vendor is not obligated to accept the highest, best, or any bid”. This gives the client more control and they can chose not to sell, without consequence.
What are the different formats that an agent can be instructed to market a building?
- Sole agency = one agent
- Joint agency = two or more splitting one fee
- Multiple agency = any number but successful agent gets the fee
What case law is there relating to oral terms of engagement in agency?
Wells v Devani, 2019 which allowed an oral agreement of terms to be held as legally binding.
What might you advise your client to serve to protect them against a purchase who you fear might delay?
Serve a notice to complete. This sets a deadline to complete the deal, and will be paid for by the proposed purchaser to show their intent.
Should the deadline be passed without sale, vendor can keep the deposit, re-market the property and even sue for damages (Specific performance)
When acquiring a property for a client, what is the general process should you go through?
- CIT
- AML
- Understand objectives
- Measure / value viable options
- DD
- Check arrears
- Share covenant data with vendor
- Negotiate
- Instruct sols
- Exchange
What are the various types of purchase vehicle?
- SPV - company formed for purchase of property to reduce SDLT obligations
- Offshore Trust - Tax reasons
- REIT - listed UK property investment co. who’s business is in excess of 75% property investment
- JV
What is the key RICS core material relating to leasing and letting?
RICS Professional Statement ‘Code for leasing business premises, 2020’
- aim to promote quality and fairness in negotiations
- efficiency of legal process
- Min requirements of HoTs
What are some of the minimum requirements for HoTs under the Code for Leasing Business Premises, 2020?
- location and extent of premises, w/ plan
- terms and LTA protection
- break rights
- guarantor / rent deposit details
- rent, frequency, exc. business rates?
- incentives
- RR frequency and basis
- sc / insurance liability
- alienation
- repair
- use
- alteration
- conditions
What are the sections of the code for leasing business premises, 2020?
- Introduction
- mandatory requirements
- Best practice
- Appendices (HoTs and Guide for LL/T)
What are a letting agents obligations under the Code for Leasing business premises, 2020?
- Lease negations must be constructing and collaborative
- I represented parties must be informed of the code, it’s guidance and advised to get representation
- Conform to the Min HoTs requirements
Why is advising you client on Tenant selection important?
A good tenant will be less time intensive to manage. However, the more important point relates to value. The stronger the covenant of the tenant, the greater value this will add to the clients property.
How would you assess the covenant strength of an incoming tenant?
- Bank account and two trade references
- Reference from previous LL
- Three years audited accounts
- Business plan
- Credit checks
- Profits test = net profit three times the annual rent for three years.
How would you implement a rent deposit?
A rent deposit is personal to the tenant and cannot be passed via alienation. You should:
- Legally document it in a ‘rent deposit deed’
- Hold the deposit in a separate bank account
- Agree the terms for the release of money
- Can include ‘top up’ provision at RR