The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Chris Mullin): I heartily second your point, Mr. Gale, about 74 Acacia avenue testing our good humour. Had you been present at our previous sitting, you would have heard a lot of nonsense about a lady in red sequins and even some references to the gestapo. I do not intend to pursue those this morning. I hope to satisfy the concerns of hon. Members who have spoken today.
The Bill places the obligation to produce a seller's pack only on those marketing a property
I shall explain the reasoning behind that. Ideally, we would like anyone who is selling a house to have prepared a seller's pack before seeking to interest potential buyers, but we also have to consider practicality and enforceability.
Most people make a deliberate decision to market their property, and then approach an estate agent, who mails out particulars, or advertises in the local press or the shop window. A private seller might advertise in the local paper, through a ``for sale'' notice in the front window, or on the internet. In each case, there is clear evidence of marketing, and a seller's pack should have been prepared beforehand.
There are, however, cases in which a person might let family or acquaintances know that they are interested in selling their home. It would be difficult to enforce the production of a seller's pack in such cases because there would be no tangible evidence of marketing. The person may simply have been signalling an intention to market through an agent later.
We have carefully considered whether exempting such cases significantly undermines our policy, and have concluded that it does not. Such cases will constitute a small minority. In nearly all of them, the buyer will be known to the seller, so there will be a much lower chance of concealing material information that causes delays. We anticipate that it will become normal practice for buyers to ask to see a seller's pack, so should a buyer express an interest, the first action would usually be for the seller to commission the necessary work.
Clause 2(5) provides that the seller becomes responsible for marketing the propertyand therefore subject to the seller's pack obligations set out in clause 3when he either puts the property on the market or makes public the fact that it is. Clause 1(4) provides that a property is put on the market at the point at which the fact that it is, or may become, available for sale, is first made public. Clause 1(6) provides that a fact is made public when it is advertised, or otherwise communicated, to
That rehearses our discussion on clause 1.
The expression ``public or a section of the public'' has been used before in legislation where some flexibility is desirable, for example in the Race Relations Act 1976. The expression is not defined in the Billand the same is true of other legislationprecisely to maintain flexibility. The use of the expression signals an aim to cover some people and not others. Were that not so, communication to any person would constitute marketing.
With regard to case law in other contexts, we consider that ``the public'' relates to the public at large, and that ``section of the public'' would not include family members, individuals, or small groups of people, especially if they were known to the seller. Therefore, the Bill's drafting does not affect marketing to individuals and goes further than the proposed amendment.
In the final analysis, it will be for the courts to determine, on the evidence of the case and the purpose of part I, whether marketing had extended to the public or a section of the public.
Mr. Don Foster: Will the hon. Gentleman give way?
Mr. Mullin: I will in a moment.
We are confident that the actions mentioned in amendment No. 26 do not amount to putting the property on the market as defined in clause 1(4) and do not therefore trigger the seller's pack obligations set out in clause 3.
Amendment No. 17 refers to conversations that might take place in a pub. My hon. Friend the Minister dealt with that when we debated clause 1 on Tuesday. He said that a conversation between individuals known to each other would not constitute marketing. However, as he put it, if someone stands on a bar stool in the pub and announces to all and sundry that his home is for sale, those obligations might well be triggered. That is the crucial distinction.
The hon. Member for Cotswold (Mr. Clifton-Brown) asked about the situation where more than one estate agent or person acts as an agent. All agents marketing the property would have to have a pack. I hope that I have dealt with the points that were raised.
Mr. Foster: The Minister is being helpful, not least by putting his remarks clearly on the record. If he looks through the record, he will see that he has referred to relationships where the parties are known to each other, acquaintances and casual acquaintances. Will he state clearly whether a casual conversation with a person not previously known to the potential seller is covered by those remarks?
Mr. Mullin: Yes, provided that it is an individual and not a group of people.
The hon. Member for Eastbourne asked whether we would introduce regulations to define friend or family member. No, we will not. Clause 1(6) defines that the property is marketed when it is:
We believe that that is adequate for the purpose.
I believe that I have addressed the points made by the hon. Members for Bath and for Eastbourne. The situation is clear enough and was covered the other day when we debated clause 1. Therefore, I ask the hon. Member for Bath to withdraw the amendment.
Mr. Foster: I repeat my thanks to the Minister for his helpful comments. Our deliberations during the Committee's second sitting were predominantly about whether a seller's pack would be required during the sale itself, in a sale between the seller and an acquaintance or a friend. As we understand it, an individual not previously known to the seller would not be excluded, and in those circumstances a seller's pack would be required. I hope that it is clear that there is a difference between the two points.
If I wished to pursue the point further, I would raise the case of serial meetings with individuals and whether they are included in the prohibition in relation to groups of people. However, I suspect that that will become clear later.
In light of the Minister's helpful comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman: Unless any hon. Member has a burning issue that arises from clause 2, I am minded to
Mr. Clifton-Brown: I am sorry to be a nuisance, but I do not believe that the Minister adequately answered my point. People often decide to put a property on the market and instruct an estate agent who then begins the marketing process. Another agent sees that marketing, says, ``Ah yes, I have a client who is looking for precisely that type of property'', and introduces his client to the other estate agent or the vendor. Surely the agent who has made the introduction but who has had nothing to do with marketing the property is not required to have a seller's pack available, as well as the original agent who received the instruction.
The Chairman: The hon. Gentleman has been in the House for long enough to know that if he wants to make an additional point, he should rise before the amendment is withdrawn. I am prepared to allow the debate to continue on this occasion, because I may be partly responsible for the confusion. However, the Committee is now out of order, so I will move that clause 2 stand part and take the hon. Gentleman's comments as part of the debate.
Question proposed, That the clause stand part of the Bill.
Mr. Mullin: If there is more than one agent, whatever the relationship between those agents, each will have to have a seller's pack.
I should like to answer a question put to me by the hon. Member for Bath, which I did not address in my earlier remarks. He asked whether the seller had to have more than one copy of the seller's pack if he marketed it to more than one person. No, the seller needs to have only one copy in his possession, so there is a bonus for the hon. Gentleman.
Mr. Don Foster: It always helps to put these things on the record. I understand the need for the seller to have one pack on his person. However, what will happen if he has met one individual and given him the pack? Will he be obliged to have another pack available for anyone else he might talk to?
Mr. Mullin: If the seller is marketing it to someone else, in due course he will have to provide another copy. However, he only needs to have one with him when talking to an individual, not a big pile. He can show it to the prospective purchaser, take it back, make a copy, or do what he likes. If he is marketing the property within the terms of clause 1(6), he must show a seller's pack to everyone to whom he is marketing. If he is marketing the property to several people, each of them will need to see one.
Mr. Foster: My point may seem trivial, but clause 3(2) states:
I put it to the Minister that, having just handed over a seller's pack, the person whom he has described will no longer have on his person a copy of the seller's pack. I suspect that the answer lies in the definition of ``have in his possession''. Perhaps when we reach clause 3, the Minister may think it appropriate to raise these points.
Mr. Mullin: The seller has 14 days to provide any copy. I suspect that he could use a photocopier should the need arise.
Question put and agreed to.
Clause 2 ordered to stand part of the Bill.
|©Parliamentary copyright 2001||Prepared 18 January 2001|