Estate Agents

The OFT has made a prohibition order against Niall Maneely, a director of Maneely & Co, a Coalisland estate agent, banning him from estate agency work. An adjudicator found that Niall Maneely failed to disclose to a potential purchaser that a property being marketed by Maneely & Co was owned by his brother. In addition, Maneely & Co obtained a deposit from the purchaser, even though doing so is unlawful where the agent has a personal interest in the property, irrespective of whether or not that personal interest has been duly disclosed.

The OFT has also made warning orders against Colm McGeown, a director of the company, and against the company itself. Mr McGeown and the company are jointly liable for the failure to disclose a personal interest and the unlawful obtaining of a deposit. If they repeat the breaches of the legislation, they will be banned from estate agency work.

Mike Haley, OFT Director of Consumer Protection said:

‘Estate Agents must immediately reveal to their clients that they have a personal interest in the sale of a property they are marketing. It is important for consumers to know if the agent has a potential conflict of interest.’

NOTES

1. The OFT can take action with a view to banning from estate agency work a person (and for the purposes of the Estate Agents Act this can also be a company or a partnership) who has been convicted of certain specified offences such as fraud, or other dishonesty or violence, or who has committed racial or sexual discrimination in the course of estate agency work, or who has failed to comply with the requirements placed on estate agents by the Estate Agents Act 1979 and its associated regulations (‘the Act’), or who has engaged in specified undesirable practices, if an adjudicator finds that the person in question is unfit to act as an agent. The OFT can make a warning order if it is satisfied that a person in the course of estate agency work has failed to comply with a statutory obligation or has engaged in a practice which has been declared undesirable by the Secretary of State. The OFT can bar from estate agency work a person who fails to comply with the order and/or continues these undesirable practices in future.

2. Before a prohibition order or a warning order is issued, the person concerned has the right to make representations to the OFT as to why the order should not be made. If these representations are unsuccessful, subsequent appeal can be made to the Tribunals Service, an executive agency of the Ministry of Justice, on behalf of the Secretary of State.

3. Adjudicators issue and determine prohibition and warning notices under the Act. They do so on behalf of the OFT, but make individual and independent decisions based upon the contentions in a notice, the evidence attached to a notice and the representations of those to whom a notice is addressed. Representations may be made in writing and at an oral hearing.

4. An adjudicator determined that Niall Maneely was unfit to carry on estate agency work generally. A prohibition order was made in respect of Mr Maneely on 5 August 2008. An adjudicator also determined that Colm McGeown and the company had breached the Act and the Estate Agents (Undesirable Practices)(No.2) Order 1991. Warning orders were made on 5 August 2008. The orders will not come into operation until the period in which any appeals could be made under section 7(1) of the Act has expired. The company and the directors have until 2 September 2008 to lodge such appeals.

5. Section 21 of the Act requires an estate agent to disclose to clients that he has, or is seeking to acquire, a personal interest in the sale of a property. It also prevents an estate agent from seeking or receiving a deposit in respect of a property in which he has a personal interest.

6. Under the Estate Agents (Undesirable Practices)(No.2) Order 1991, (‘the UPO’), an estate agent must disclose to his client promptly and in writing that he, or any connected person, has, or is seeking to acquire a beneficial interest in the land or in the proceeds of sale of any interest in the land. Connected persons include relatives of the agent.

7. Under Section 3(3) of the Act the company and Mr McGeown were liable as business associates for the breaches of the Act and the UPO committed by Mr Maneely.

8. After an order has been made, the person affected can at any time, and on payment of a fee, currently £2,500, apply to the OFT for the order to be varied or revoked.

9. The Act covers anyone who, in the course of business, is engaged in ‘estate agency work’. This means introducing to someone else a person who wishes to buy, sell or lease land or property, and/or being involved in negotiating the subsequent deal. The work must be in the course of business, whether as employer or employee, and as a result of instructions from a client. The land or property may be commercial, industrial, agricultural or residential.

The OFT has made prohibition orders against two Hampstead estate agents banning them both from estate agency work.

Malcolm Green, a director of Greenfields Estate Agents and Gem Shevket, an employee of the same company, have been convicted of offences involving fraud or other dishonesty as referred to in the Estate Agents Act 1979. As a result the OFT consider them to be unfit to carry on doing estate agency work.

Mike Haley, OFT Director of Consumer Protection, said:

‘This case again demonstrates that the OFT will take a hard line against estate agents who are unsuitable to continue working in the industry owing to their dishonesty.’

NOTES

1. Under section 3 of the Estate Agents Act 1979, the OFT can take action with a view to banning from estate agency work a person (and for the purposes of the Estate Agents Act 1979 this can also be a company or a partnership) who has been convicted of certain specified offences such as fraud, or other dishonesty or violence, or who has committed racial or sexual discrimination in the course of estate agency work, or who has failed to comply with the requirements placed on estate agents by the Estate Agents Act 1979 and its associated regulations (‘the Act’), or who has engaged in specified undesirable practices, if an adjudicator finds that the person in question is unfit to act as an agent.

2. Before a prohibition order is issued, the person concerned has the right to make representations to the OFT as to why the order should not be made. If these representations are unsuccessful, an appeal against the determination to make an order can be made to the Tribunals Service, an executive agency of the Ministry of Justice.

4. An adjudicator determined that Mr Green and Mr Shevket were unfit to practice as estate agents. A prohibition order was made in respect of Mr Shevket on 26 March 2008. The order came into force on 23 April 2008. A prohibition order was made in respect of Mr Green on 30 July 2008. The order against Mr Green does not come into operation until the period in which any appeal could be made under section 7(1) of the Act has expired. Mr Green has until 27 August 2008 to lodge such an appeal. (Mr Shevket did not exercise his right of appeal).

5. After an order has been made, the person affected can at any time, and on payment of a fee, currently £2,500, apply to the OFT for the order to be varied or revoked.

6. The Act covers anyone who, in the course of business, is engaged in ‘estate agency work’. This means introducing to someone else a person who wishes to buy, sell or lease land or property, and/or being involved in negotiating the subsequent deal. The work must be in the course of business, whether as employer or employee, and as a result of instructions from a client. The land or property may be commercial, industrial, agricultural or residential.

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