The Law Society is exploring concerns that Propertymark's Property Information Questionnaire (PIQ) puts agents at risk of legal issues, Estate Agent Today has learned.
Propertymark launched its PIQ to help its members gather information for listings and ensure as much material information is revealed upfront as possible.
The latest iteration was unveiled at the end of February but a lawyer and former Brexit MEP has raised concerns that the 35-page document puts agents at risk of legal claims.
Andrew Kerr, a former Brexit Party Member of the European Parliament and now director at law firm England Kerr Hands & Co, claims the document - compiled based on Trading Standards material information guidance - goes further than the Code of Practice from The Property Ombudsman.
He suggests it enters agents into areas for which “they are not experienced, qualified or trained” by asking for information that would be covered and clarified by conveyancers.
Kerr told Estate Agent Today: "All information put in a document, other than traditional information previously supplied, that would also correspond to information required to be supplied by The Property Ombudsman’s Code of Practice, exposes the agent to unnecessary extra civil and criminal liability.
"If an estate agent supples the information they own it in legal terms for liability.
"It is crazy and reckless to set oneself up by giving information that is legally unnecessary."
He said the document goes “way beyond” material information requirements to disclose faults and puts agents into roles that conveyancers or solicitors should be doing.
Kerr adds that if the document is relied on for a sale and a dispute arises, an agent could be held liable for its contents.
He has expressed concerns to the Law Society.
An email from a Law Society solicitor to Kerr, seen by Estate Agent Today, acknowledges that replies to the form would "risk legal liability" and suggests it seems "superfluous" alongside the TA and LPE 1 and 2 forms.
A Law Society spokesperson said: “We are looking into concerns raised by one of our members and analysing any potential implications there may be for solicitors.
Nathan Emerson, chief executive of Propertymark, told Estate Agent Today: "Propertymark is keen to ensure our members are powered with comprehensive tools and support to best navigate their route through ever evolving laws and regulations which interact with the industry.
"Our latest Property Information Questionnaire (PIQ) has been developed in parallel with the evolution of Consumer Protection Regulations which is a crucial framework all agents must abide by.
"The PIQ is designed to assist agents navigate various streams of information to gather detail with consistency and present it to consumers in a reliable and uniform manner upfront, whilst also supporting them to conform with the new framework for gathering and presenting material information under Parts A, B and C.
"It is intended to drive forward best practice across the sector; however, it should not be viewed as a tool that replaces the need for legal clarity and guidance. The overall aim is to ensure our PIQs provide a safe and reliable solution to support agents and consumers."
National Trading Standards added: “We welcome the fact that industry organisations like Propertymark are working to improve compliance in the property market.
“The updated material information guidance was introduced to provide the industry with clarity and consistency about the kind of information that should be included in property listings, which will help reduce transaction times, costs and the likelihood of fall-throughs."
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What information on this PIQ should an agent not ask?
PropertyMark full of their own importance, why put the emphasis on agents its like AML what is the point of an agent completing the PIQ and AML when the solicitors do it anyway.
Compliance with the law, possibly?
Sellers should ask their solicitor to compile the MI and a contract pack before launching to the market. The MI would be given to the agent and for the property details and pack shown to a potential buyer after they have viewed and contemplating an offer. The pack should also be comprehensive enough to significantly reduce the amount of enquiries that take months.
I think its more important when a buyer offerers on a property that's previously fell through, the estate agent should inform the new buyer why it fell through and if its had a survey all relevant information should be disclosed on new particulars.
i think a vendor should have a solicitor instructed and a legal pack obtained as well as a survey on the property at the point of marketing. if the vendor is serious about selling then this should not be a problem and then this solves all of Parts B and C. Auctioneers dont seem to have a problem with this and it works well. yet once again propertymark have not encouraged the government in the right way and yet once again we have an ill thought through piece of legislation which is full of openings for estate agents to be held to account.
It sounds as though Andrew Kerr has not heard of the latest NTSELAT guidance on material information. He refers to compliance with TPO's Code of Practice, paragraph 7i of which in turn requires compliance with the CPRs and the disclosure of all material information.
The penny is beginning to drop, agents will either need to become culpable for the information they are required to provide to even the most ambivalent property tyre kicker applicant or they need their principal to engage with their conveyancing firm or service from the outset of marketing. Agents will begin to use MI as a weapon where any lapse in providing true and accurate information will be used to punish competitors who fall short of full compliance. I've seen two cases so far that are going to escalate badly because information provided turn out to be incorrect. There is a lack of strategic and cohesive thinking with fragmented solutions only partly solving the problems agents now face.
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