Key Statements and Case Law Flashcards
Levitt Review 2021
Lack of clarity, structure, purpose
Bichard Review 2021
-greater focus on public interest
-greater self regulation for statutory related functions
-focus on diversity and inclusion
-support for regional and younger members
-simplified governance structure
-independent 5 yearly review of RICS
-social issues (sustainability, climate change)
RICS Professional Statement: Conflicts of Interest 2017
-‘A member must not advise or represent a client where doing so would involve a conflict of interest or a significant risk of a conflict of interest’
-Must seek informed consent
-Records must be kept to show compliance with statement
RICS Professional Statement, Conflicts of Interest – UK Commerical Property Market Investment Agency, 2017
- As of January 2018, dual agency must not be undertaken – where agent has contractual agency relationship with buyer and seller
- Multiple introductions – where agent has competing contractual relationships with several buyers – must state in ToE if exclusive or non exclusive agreement
- Personal interest – must declare all facts promptly and not let professional judgement be compromised
RICS Guidance Note on Complaints Handling, 2016
- Firms CHP must be approved by RICS and made available to any client with terms of engagement.
- Inform PII straight away from complaint as could lead to claim of negligence.
- CHP must include a RICS approved Alternative Dispute Resolution (ADR) and keep a complaints log
- In house (acknowledged in 7 days, investigated in 28) stage 2 (ADR Third Party Resolution).
RICS Guidance Note – Risk, Liability and Insurance, 2021
Recommend the use of liability caps to manage risks
Aware of third party reliance, advice can only be relied upon by the client named in the ToE.
RICS Professional Standard ‘Client Money Handling’ 1st Edition, 2019
You know the guidance
Bribery Act 2010
Based on 6 principles:
1. Proportionality
2. Top level commitment
3. Risk assessment
4. Due diligence
5. Communication
6. Monitoring and review
Four offences:
1. Bribing
2. Receiving a bribe
3. Bribing a foreign public official
4. Failing to prevent bribery
Firms anti-bribery procedures must be registered
Act policed by the Serious Fraud Office – can be penalty of 10 years imprisonment and or an unlimited fine for individuals. Companies face unlimited fine.
Money Laundering, Terrorist Financing and Transfer of Funds Regulations, 2017 (as amended in 2022)
Sets out the key requirements for money laundering for companies to comply with.
1. Written money laundering and terrorist financial risk assessment
2. Systems to address money laundering
3. Appropriate internal controls
4. Staff training
5. Enhanced due diligence checks
6. Requirements relating to politically exposed personals (PEP’s)
7. Record keeping, policies and procedures
8. AML checks to confirm identity of proposed purchaser of a property and check their source fo funds
9. Include high risk factors when assessing the need for enhanced DD and extra info in some situations e.g. parties based in high risk countries
Estate Agents Money Laundering Requirements
Money laundering check have to be undertaken on new clients and counter part:
If rent is above £8,400 threshold per month
Customer due diligence – Identity
Enhanced due diligence – if red flags occur e.g. high risk countries, non-face to face business relationships
If they say no – you cannot proceed with them
Max acceptance of cash is £8,400
* 14 years prison sentence and/or unlimited fine for assisting with money laundering
* Max. 5 years prison and/or unlimited fine for tipping off a person by informing them they are under suspicion or failing to report
Proceeds of Crime Act 2022
Provides powers for UK enforcement authorities to recover money and assets which are deemed to be proceeds of crimes.
RICS Professional Statement: Countering Bribery, Corruption, Money Laundering and Terrorist Financing, 2019
Part 1: Must not accept anything that could constitute a bribe, have procedures in place, due diligence and records
Part 2: Guidance setting out good practice
Written policy for senior management, code for staff behaviour, gifts register, encourage transparency
Part 3: Supplementary guidance
Enhanced DD on PEP
Always identify beneficiary ownership of a company, partnership or trust
RICS Guidance Note ‘ Surveying Safely – Health and Safety Principles for Property Professionals’ Second Edition, 2018 (effective 2019)
8 sections:
-personal responsibilities
-assessing hazards and risks
-workplace health and safety
-occupational hygiene and health
-visiting premises and sites
-fire safety
-residential property surveying
-procurement and management of contractors
The ‘Six Pack’ of Health and Safety Regulations,1993
- Management of health and safety at work
- Display screen equipment
- Manual handling operations
- PPE at work
- Provision and use of work equipment
- Workplace health, safety and welfare
The Fire Safety Act, 2021
For multi-occupied residential buildings.
Requires all responsible persons to assess, manage and reduce the fire risks posed by the structure, external walls and any common areas of the building.
Eg. lift inspections, evacuation plans, fire door compliance
Building Safety Act, 2022
Enhance regulations for building safety to ensure residents have a stronger voice in ensuring safety in buildings.
Implements elements of The Hackitt Review.
Occupiers’ Liability Act, 1957
Regulates the liability of occupiers and others for injuries caused to lawful visitors and for damage to goods
RICS Guidance Notes Asbestos: Legal Requirements and Best Practice for Property Professionals and Clients, 2021
- Overview of law and industry guidance for asbestos
- Sets out best practice to comply with the law.
- Details of common asbestos-containing materials
- How to commission an asbestos survey
- Suggested contents of an asbestos management plan
RICS Guidance Note on Complaints Handling, 2016
- Firms CHP must be approved by RICS and made available to any client with terms of engagement.
- Inform PII straight away from complaint as could lead to claim of negligence.
- CHP must include a RICS approved Alternative Dispute Resolution (ADR) and keep a complaints log
- In house (acknowledged in 7 days, investigated in 28) stage 2 (ADR Third Party Resolution).
RICS Guidance Note on Independent Expert Determination, 2016
- Independent expert appointed by the 2 parties
- Expert has expert knowledge of the subject matter of the dispute
- Both parties are bound by the decision
UK General Data Protection Regulation 2016
Single data protection regime to empower individuals to take control of how data used by 3rd parties
Freedom of Information Act, 2000
- Gives individuals the right of access to information held by public bodies
UK Equality Act, 2010
9 protected characteristics, 4 types of illegal discrimination
Climate Change Act 2008
Amended in 2019 to require UK to achieve ‘net zero carbon’ by 2050. Interim target of 78% by 2030 subsequently targeted.
Climate Change Levy 2019
- Tax on energy delivered to non-domestic users in the UK
- Introduced as an incentive to increase energy efficiency within business and reduce carbon emissions
Environment Act 2021
aims to improve air and water quality, protect wildlife, increase recycling and reduce plastic waste.
RICS Guidance Note ‘Contamination, the Environment and Sustainability’ 2010 (3rd edition)
Surveyors must understand their obligations, know their responsibilities and comply with the law.
General principle is that the polluter or landowner pays for the remediation
Signs – evidence of chemicals, oils, oil drums, subsidence, underground tanks, bare ground
RICS Professional Standard – Japanese knotweed and residential property, 2022
- Provide guidance on best practice on a holistic assessment of Japanese Knotweed.
Guidance Note “Sustainability and ESG in commercial property valuation and strategic advice” 2021
Glossary of relevant terms and factors and approaches related to ToE, valuation purpose, inspection and reporting
Valuation Registration Scheme (VRS)
Annual form for valuers carrying out Red Book valuations from October 2011.
Improve the quality of valuation and ensure the highest possible professional standards.
RICS UK Commercial Estate Agency Professional Statement, 2016
Mandatory standards with 12 core principles.
- honesty, fairness, transparency
- skill, care, dd
- terms of business
- avoid COI
- honest and truthful marketing
Estate Agents Act, 1979
Its purpose is to make sure that estate agents act in the best interests of their clients, and that both buyers and sellers are treated honestly, fairly, and promptly.
2 methods to exclude the 1954 Act
Statutory declaration / simple declaration
RICS Professional Statement Code for Leasing Business Premises, 2020
- To improve the quality and fairness of negotiations on lease terms and promote comprehensive HoT’s to make legal drafting easier.
- Negotiations must be approached in a constructive and collaborative manner.
- If not represented, should advise to see professional advice.
- Subject to contract on heads of terms
- Lease renewal or extension, must follow the structure of HoT’s unless parts that have to mirror the existing lease
- Negotiations should produce fair balance
1. Lease negotiation best practice advice
Consumer Rights Act, 2015
- Consolidates law relating to unfair terms and contracts between businesses and consumers.
Gives consumers new rights and remedies - Letting agents must clearly display a summary of their charges in their office and on their website
- Clear who is responsible for the payment and info on calculation of charges
- Policed by the Local Authority and penalty is a fine up to £5,000 for each breach
Cooling off period of 14 days from date of agreement
Misrepresentation Act 1967
- Misrepresentation or a false statement made by a party during pre-contractual enquiries which has the effect of inducing the party to purchase
- Vendor/ agent can be sued for damages and have contract rescinded
- Agent has duty of care to check that the advice, information or opinion is reliable
- Disclaimer clause on all marketing
Landlord and Tenants (Covenants) Act 1995
- Introduced AGA – Authorised Guarantee Agreement.
- Important of having the word ‘reasonably in the circumstances’ in the clause to state if AGA required
Street v Mountford
Defining feature of the lease was exclusive possession
Yianni vs Evans (1981)
Established that a residential valuer instructed by a mortgagor lending institution could owe a duty of care in tort to a mortgagee purchaser relying on a valuation
