Housing Act 2004

172 Power to require estate agents to belong to a redress scheme

(1) The Secretary of State may by order require every estate agent to be a member of an approved redress scheme.

(2) Acting as estate agent for the seller of a residential property in contravention of such an order is a breach of duty under this Part.

(3) Before making such an order the Secretary of State must be satisfied that he has approved one or more redress schemes such that every estate agent who is (or will be) subject to the duty imposed by the order is eligible to join an approved redress scheme.

For this purpose “estate agent” does not include a person who is (by virtue of a prohibition imposed by or under the Estate Agents Act 1979 (c. 38)) unable lawfully to act as estate agent for the seller of a residential property.

(4) An order under this section may—

(a) exclude estate agents of a prescribed description from any duty imposed under subsection (1);

(b) limit any duty so imposed so that it applies only in relation to relevant complaints of a prescribed description.

(5) Nothing in this section is to be taken as preventing an approved redress scheme from providing—

(a) for membership to be open to persons who are not subject to any duty to belong to an approved redress scheme;

(b) for the investigation and determination of complaints, other than those in relation to which such a duty applies, made against members who have voluntarily accepted the jurisdiction of the scheme over such complaints;

(c) for the exclusion from investigation and determination under the scheme of any complaint in such cases or circumstances as may be specified in the scheme.

(6) In this section and sections 173 and 174—

• “approved redress scheme” means a redress scheme that is for the time being approved under section 173;

• “estate agent” means a person who acts as estate agent for sellers of residential properties for which a home information pack is (or will be) required under this Part;

• “redress scheme” means a scheme under which certain relevant complaints may be investigated and determined by an independent person (referred to in those sections as “the ombudsman”); and

• “relevant complaint” means a complaint against an estate agent which—

  (a)

  is made by a person who at the material time is the seller or a potential buyer of a residential property; and

  (b)

  relates to an act or omission affecting the complainant in the course of the estate agent’s activities in relation to a home information pack that is (or will be) required for that property (including the giving of advice as to whether such a pack is required).

(7) For the purposes of the law relating to defamation, proceedings under an approved redress scheme in relation to the investigation and determination of a complaint which is subject to an order under this section are to be treated in the same way as proceedings before a court.