Recently there have been reports of agents leaving properties live on portals even though they are ‘sold subject to contract’, with some saying it is ‘morally wrong and sharp practice’. But it is almost certainly a criminal offence, according to David Smith, partner at JMW Solicitors. 

Smith says that the Consumer Protection from Unfair Trading Regulations 2008 (the “CPRs”) regulates estate and letting agents, just as much as other businesses trading to consumers. In fact, it is likely to be an offence under several different parts of the regulations. He added: “First, it is important to realise that the CPRs restrict any practice which might lead to a consumer making a transactional decision. That includes merely deciding to call an agent to book a viewing. The effort by the consumer in calling to have their time wasted is enough to justify a prosecution. 

“Looking at the regulations we can see that regulation 8 makes clear that it is an offence to engage in a commercial practice ‘which contravenes the requirements of professional diligence’.  Regulation 9 makes misleading actions an offence. These are defined in regulation 5 and include any advert which ‘contains false information and is therefore untruthful’ in relation to a range of matters. One of these matters is specifically described as being the ‘availability of the product’. Clearly, suggesting in an advert a property is available to view and purchase when it is in fact not is likely to be a misleading action.”