A quick summary of what mediation entails

Mediation is a voluntary process in which the people involved in a dispute agree to sit down together with a neutral third party – the mediator – and discuss their mutual problem. They then work together, seeking a solution to the problem with which they can all live. Most often there are two people involved in a dispute, but there is no limit to the number that can be involved, or to who can attend a mediation to help resolve the dispute. While the mediator facilitates this process, the solutions that the people in the dispute come up with are entirely their own.

Mediation is voluntary because if someone absolutely does not want to attend a mediation, trying to force them to do so is unlikely to help in reaching resolution. You may have all kinds of misgivings about the party or parties with whom you are in dispute as you go into mediation, but essentially you must want to at least try to solve the problem. Mediation cannot work in any other way.

Generally, as the first step in the mediation process one party will contact the mediator expressing his or her desire to explore the options for mediation. If the dispute has reached a point where the parties are no longer in communication, most mediators are happy to speak to each person individually and confidentially, and to handle all contact in setting up the meeting between them if that facilitates the process. What the mediator cannot do is to force or coerce the other party to attend. All he or she can do is to talk to them and to explain the principles and processes of mediation, taking care to answer all their questions. Once the parties agree in principle to mediation, and before they’ve even sat down with the mediator, they are showing a willingness to resolve the dispute.

Mediation’s emphasis is on moving forward – not on looking back. Your dispute has got to where it is now and, however it got there, focusing on that part of the problem usually does not help anyone come to a resolution. Mediation’s purpose is to focus on the future and to progress on new terms with which everybody can live.

When you go to court, the focus is always on the past: who has been at fault, who has broken a contract, who has done something wrong, who has done what to whom. At the end of the court process a decision is handed down by the judge which attributes blame and prescribes a remedy. The court generally makes no attempt to give direction on how the parties should proceed in the future, and certainly does not want to involve itself in any ongoing supervisory role. This can be particularly difficult if the parties have to remain in any sort of relationship with each other such as in family cases or in cases involving relatives or work colleagues.

Mediation’s focus is on how to move forward and this is achieved by directing attention on how to solve the problem. It can also contain agreed terms for the future conduct of the relationship, if that is what the participants want.

Disputes in any context tend to generate a lot of bad feeling and high levels of stress. Have you ever been in a dispute with anyone? Most of us have. No matter how small the argument, feeling angry, unheard and misunderstood does not feel good, even if you are convinced that you are 100% in the right. Relationships of all kinds can be heavily damaged by dispute. The longer people remain in dispute with each other, the more they look for evidence to support their point of view in the argument and they therefore focus on the dispute. They fixate on this and focus all their energy on it to the extent that finding a workable and amicable solution that helps find a way out could not be further from their thoughts.

When people are in conflict, stress levels can rise sharply, and this is not healthy for anyone on either side of a dispute. Relationships outside the argument can also suffer when someone is very angry for such a very long time. When an amicable, acceptable resolution is reached, stress levels immediately drop and people feel much more positive and much lighter. A weight is lifted from their shoulders and the time and energy they once focused on the argument can now be used for things that are helpful and enjoyable to them.

Mediation is entirely confidential. This is another very important point and must be strictly observed by the mediator and by all parties to the dispute. Anything that is said or done in a mediation cannot be revealed to outside parties either during or after the mediation.

Mediation is also ‘without prejudice’. If your mediation is one of the few that is unsuccessful, and the decision is taken to proceed to court, whatever was said in the mediation may not be relied on in court by either party without the express permission of the party that made the statement. This means that if something new comes to light in an unsuccessful mediation, this information cannot be brought into the legal arena. Neither can the mediator be brought into the legal arena as a witness, save on the orders of a Judge.

The description of the mediation process as without prejudice means that anything said during the mediation cannot then be used as evidence in any legal proceedings which are being considered or already started. This allows parties to talk openly about options for agreement. Parties are able to suggest new and creative possibilities for agreement without jeopardising their chance to go (or to go back) to court if an agreement isn’t reached. A mutually agreeable outcome is often one which could not have been reached in court.

With the exception of family mediations, where some records must be kept, the mediator destroys all notes and information relating to the meeting apart from the agreements to mediate and the record of the attendees at the meeting. This further protects the confidentiality of all who attend as there is then no danger of any information falling into the wrong hands.

The voluntary and non-binding nature of mediation means that parties are not compelled to reach an agreement and options for an agreement can be discussed without binding themselves to a particular outcome. There is no consequence on the parties if they are unable to agree (other than financial loss where the mediation is self-funded). Mediated agreements are only binding if both parties wish them to be.

During a mediation, while the mediator assists and facilitates the process, the parties are responsible for generating options for agreement and the terms of any settlement reached. The mediator does not offer their opinion on the merits of either party’s case or seek to determine or impose any outcome. They do not make suggestions or recommend proposals for agreement (but may pass offers between the parties if requested to do so). Any agreement reached must be mutually acceptable to all parties and will have been created by them.

It is integral to the mediation process that parties are able to make informed choices, about what to propose by way of agreement and whether to reach a settlement. Mediators encourage parties to explore their positions so that any agreement reached can reflect their needs and interests. Mediators also encourage parties to consider the likely alternatives to reaching a mediated agreement to objectively assess any offer on the table. When a dispute involves legal rights and entitlements, parties should seek legal advice before commencing mediation. Parties may have a legal adviser present during the mediation (or available on the telephone), or be given the opportunity at the end of the mediation to consult a legal adviser before reaching a legally binding agreement.

Mediation invites parties to widen the potential options for agreement and explore new possibilities and ideas. Mediated settlements can be reached where direct negotiations have failed by getting the right people in the same room and breaking down barriers to communication. The time spent by a mediator encouraging parties to explore their own needs, as well as those of the other party, enables participants in mediation to make practical proposals. Such offers may have added-value as they may have huge significance to one party but can be provided with minimal inconvenience to the other. It may involve looking at previously unconsidered options and widening the options for agreement.

The Property Ombudsman offers free, impartial and independent service for the resolution of unresolved disputes between consumers and property agents. The scheme has been providing consumers and property agents with an alternative dispute resolution service for 27 years. A member agent signed up with The Property Ombudsman is obliged to adhere to a code of practice which consumers can take confidence from.

Valuing a residential property

The first aspects of a property to be considered by the layman are usually the location, the appearance and the physical condition. Where it is, what it looks like, its accommodation, services and condition are all important factors when considering value, but for the valuer the most important initial considerations are legal. This is because it is the legal title to property with all its encumbrances that is bought and sold. ‘Every man’s home is his castle’summarises most people’s aspirations for home ownership, to own something which is theirs and which is defensible against all-comers. In practice, the main line of defence is title; if the title is in any way limited, then solid walls may not prove to be the best defence.

In England and Wales the titles to be valued will either be freehold or leasehold, but it is also possible to own no more than an interest for life in a particular parcel of land.

The legal term for a freehold interest is fee simple absolute in possession. This just means that the whole estate, or any part of the estate can be transferred by the freeholder at any time, either during the owner’s lifetime or on their death by will or under the rules of intestacy.

A freeholder has the right to occupy and use the land, create lesser interests out of it such as long leases, periodic tenancies and life interests. In theory the Crown owns all of the land so a freehold interest is the closest that a person can come to absolute ownership of land. This is illustrated by the fact that if a freeholder dies without making a will and without any living relatives to inherit the land, then the title will revert to the Crown.

Although the freeholder has in theory absolute rights over the land, this ownership is secondary to other common law and statutory rights.

Civil and military aircraft can enter the airspace over a land, subject to limitations.

All gold, silver and coal belongs to the Crown who grant licences for the excavation of such minerals. Items of historic interest that are found on land may also belong to the Crown, but compensation can be paid to the owner of the land on which the items are discovered.

Ponds and lakes that fall within the boundary can be owned, but control and use of larger water bodies is strictly regulated. Ownership of river frontages may or may not include fishing rights and the riparian rights of others must be respected. Two other title restrictions require special mention.

First, on transfer of title it is possible for an owner to impose on a purchaser specific restrictions known as restrictive covenants. From a valuation viewpoint the most important are those covenants that restrict the use: development may be restricted to a specific number of houses, occupation restricted to family occupation, use may be restricted to public open space, and there may be restrictions on parking of caravans. These restrictions may remain enforceable for many years, but the right to enforce may be lost if the person enjoying the benefit of that covenant has permitted breaches to occur.

In other cases it may be necessary to apply to the Lands Tribunal under the Law of Property Act 1925 for the restrictions to be modified or discharged. Clearly such restrictions may hold values up where they help to maintain an environment, but they may also depress values where they prevent the land being used to its highest and best use in today’s market. Thus land suitable for building 10 houses may be restricted to one house by a covenant created in the 19th century.

Second, it was possible for a freehold title to be made subject to a rent charge. This entitled a party with no legal interest in the land to receive an annual payment. The Rent Charges Act 1977 prohibits the creation of new rent charges and contains provisions for the gradual extinguishment or voluntary redemption of such charges as currently exist (see Appendix IA). Rent charges will cease to exist from July 2037.

A freeholder is subject to the general laws of the land when it comes to determining what he can do with his land. There aver various acts that determine use of the land, such as the Town and Country Planning Acts, Environmental Protection Acts and the Building Regulations.

The police may also override the freeholder’s legal position to enter the property to enforce the law.

Freehold property also includes improvements to the land such as buildings and those things so attached to the land that they are held to be fixtures and so part of the land. The distinction between personal property that is movable and personal property which has been so attached to the land as to become a fixture is often very fine and has given rise to a branch of law known as the law of fixtures. In the residential market it has become the custom for questionable items to be listed as being included or excluded from the sale. The valuer will take the obvious fixtures into account in a valuation as they may add to the value of the property. Clearly an item such as a central heating boiler is a fixture, but it is less certain whether a built-in hob and oven in a kitchen will be classed as a fixture. When in doubt the valuer should make it clear in a valuation report which items have been included in the valuation of the property.

Until the passing of the Leasehold Reform Act in 1967 it was quite common practice for residential property to be sold on a leasehold basis and in the case of blocks of flats, house conversions, sheltered housing or whenever property management may be a major issue it is still common practice to sell on a leasehold basis with a share in a specifically created management company which owns the freehold.

In September 2004 a new form of land tenure was introduced. It is called commonhold and it is a way of owning freehold land. It is intended to be an alternative to the leasehold system for multi-owned, interdependent properties with common parts. Its most obvious application is to blocks of flats and apartments, but it could be used for developments of houses or mixed use buildings where there are communal areas. A commonhold association must be formed as a private company limited by guarantee. This owns the common parts and all individual unit owners are members of the association and so they can control those common parts. The individual unit owners will own the freehold of their unit.

A leasehold estate in property will be for a definite term. This is an important value factor.

Traditionally such leases in residential property have been for terms of 99 years or 999 years. But in addition to the covenant to pay rent there may be covenants to repair, insure, pay local taxes, to clean, to maintain grounds and gardens or to meet some or all such costs through a service charge levied by the landlord. In most instances these covenants impose a contractual requirement on the leaseholder to undertake everything that one would expect from a reasonable freehold owner of residential property. However, a freeholder has a choice of whether or not to paint the property, to clean the windows and to maintain the garden; the leaseholder will not necessarily have that choice. Further, the leaseholder may be specifically restricted in terms of the use and enjoyment of the property. There may be covenants about music after 11.30 pm, about hanging out clothes to dry, about erecting TV and radio aerials and satellite dishes and a requirement to obtain the freeholder’s consent for all alterations and for any sale (assignment) or further sub-leasing of the property. A licence fee may have to be paid to the freeholder whenever the freeholder’s consent is required under the terms of the lease.

A valuer when instructed to prepare a valuation must be satisfied by inspection and enquiry as to the nature of the title to be valued and any restrictions or other encumbrances that attach to the title. However, because of the time-limits imposed upon the valuer by many clients, valuations are often prepared on the basis of an unencumbered freehold or on the basis of minimum information relating to a lease. A valuer is valuing on the basis of information supplied and will naturally reserve the right to review that valuation if that information is subsequently found to be incorrect. Nevertheless valuers are trained to observe and should therefore account for the obvious, such as signposted public footpaths, unmade and un-adopted roads, shared driveways and shared areas in blocks of flats.

Some things to consider before investing in commercial property

Commercial property is property that is not designed or used for residential purposes, or for purposes associated with the primary industries such as agriculture and mining. The three main types of commercial property are offices (single office buildings and business parks), retail (individual shops, shopping centres, retail warehouses and supermarkets) and industrial (factories, warehouses and distribution centres). The remaining properties are those used for leisure (pubs, restaurants and hotels), sport, education, the provision of utilities and healthcare (hospitals and nursing homes).

The value of UK commercial property at the end of 2015 was £ 871 billion, about 10% of national net wealth, almost half of the value of government bonds and 40 % of the UK’s stock market. Within that figure of £ 871 billion, retail accounted for £ 360 billion (41%), offices £ 270 billion (31%), industrial £ 168 billion (19%) and other commercial properties £ 73 billion (9%). Commercial property activities employed almost 1 million people and the sector contributed about £ 68 billion (4.1%) to the UK’s Gross Value Added. (The figures quoted are taken from the Property Data Report 2016, produced by eight members of the Property Industry Alliance.) Although the residential property sector is over six times larger (by value) than the commercial property sector, the vast majority of residential properties are owned by private householders, so there is not as much scope for residential property investment as there is for commercial property investment.

About 45% of all commercial property is bought by owner-occupiers, who need land and buildings from which to conduct their business. Some of these occupiers want to buy a freehold or long leasehold interest in the property because they need certainty and complete freedom to deal with the property as the business dictates, but it does means that a lot of capital is tied up in the building. Other occupiers prefer to take a so-called ‘rack rent lease ’, where the occupation cost is paid, usually quarterly, over the period of the lease by way of rent, rather than all at the beginning. In recent years, particularly among the large food retailers, there has been a move away from freehold ownership through ‘sale and leaseback’, where the freehold interest in the property is sold to an investor (thus releasing capital for use in the operating part of the business) and the occupier takes a rack rent lease instead.

The other 55% of all commercial property is bought by investors, who buy property to let out to others so that they can make an income from the rent and a profit from any increase in the capital value of the property. Although the capital value of commercial property suffered a considerable fall in 2007 and 2008, it remains popular with certain types of investor because the average lease offers an income stream of about seven years. So the income return (or ‘yield’) from commercial property is reasonable (13.1% for directly-owned commercial property in 2015, better than UK equities and bonds). Over the 44 years prior to 2015, commercial property produced annualised returns of almost 10.9%, somewhere between gilts and equities (see page 18 of the Property Data Report 2016). Commercial property has tended not to track the performance of gilts and equities particularly closely, so including some commercial property in your investment portfolio is a way of diversifying and spreading risk. Moreover, by good management of tenants and/ or refurbishment of a tired building, a property investor may be able to enhance the value of the asset, even in times of economic downturn.

There are two ways to invest in commercial property, directly or indirectly. Direct property investment involves buying a property in your own name or in the name of a group company, letting it out, taking responsibility for managing it and selling it on when you no longer require it. Although you can employ surveyors and other professionals to assist you, this still uses up a considerable amount of time and effort. It also means that you have to find a considerable amount of cash, or a loan, or a combination of both, to fund the initial purchase. An alternative way is to buy shares or units in a company that invests in a range of commercial and residential property, such as a real estate investment trust (REIT) or an offshore property unit trust (PUT). These indirect property investment vehicles offer opportunities for smaller levels of investment, some taxation advantages, less management responsibility and, arguably, greater flexibility as it may be easier to trade units than to sell a property. However, indirect property investment is beyond the scope of this book.

So who invests in commercial property? According to figures in the Property Data Report 2016, overseas investors held the largest block of directly-owned investment property (28%); UK insurance companies and pension funds held 17%; UK collective investment schemes held 16%; UK REITs and listed property companies held 15%; and UK private property companies held 12%. Traditional estates and charities and private investors held 5% and 3% respectively. Some of the units in the UK collective investment schemes are bought by private individuals, but many are bought by the investors who also buy property directly. For example, in 2015 the UK insurance companies and pension funds invested £ 84 billion (2.8% of their total investments) in directly owned UK property, £ 57 billion (1.9%) in collective investment schemes and £ 37 billion (1.2%) in UK and overseas property company shares.

Documenting Rights of Way

If you are buying a residential property, it usually seems straightforward enough. Check out the length of the lease or freehold, and other things like ground rent, and leave the rest in the hands of your conveyancer. Of course, if you are one of the growing many who are increasingly managing their own conveyancing, then yes, there are a few more things to look into. It is difficult with doing it the first time of course, as there are the normal uncertainties associated with learning something for the first time, but once you have done it there is the confidence and pride in knowing you’ll be saving yourself some money in solicitor fees, and a whole lot of time expense, in that you won’t have to be ringing you conveyancer for status reports because you are now the conveyancer!

 

Some may argue that the majority of decisions involving property purchases are all done before looking at the property itself. Questions like “Which area is it in?”, the council tax, parking restrictions if any, are the kind of questions that precede a purchase and which may even influence the decision to arrange a viewing in the first place. Some buyers, for example, would discount a property on the basis of the lack of off-street parking – which is fair enough. If you are considering about  purchasing a property on a busy road and learn that you would have to park your beloved car three streets’ and five minutes’ walk away the parking would make a difference enough for you to look into another property.

 

For some, off-street parking really makes a difference. Who would risk a precious car out on the road, or on another road out of vantage point? The availability of off-street parking in big cities also means the lack of a need to monitor parking restrictions in the area because you would be parking on your own land.

 

The property ombudsman was recently called to investigate a complaint against one of its member agents by a buyer who claimed to have been mis-sold a property by them.

 

The buyer had bought a property with vehicular access to the rear, adjoining two other properties he already owned. These latter two properties did not have parking facilities. Essentially it can be assumed that the buyer had bought the property with the intention to link all three together with parking facilities.

 

The issue did not revolve around the properties themselves, but rather the access to them, which the previous seller had assumed was via a common road; hence the buyer was somewhat surprised, perhaps slightly taken aback, to be informed that the road was actually part of a neighbour’s property and he did not have right of way over it.

 

The buyer raised the issue with the ombudsman because he felt that the estate agent had misrepresented the property.

 

The ombudsman’s investigation found that the estate agent had taken reasonable steps to ensure that the description of the property was accurate. The seller had assured the agent that the sales descriptions were accurate, and assured the agent about the access, so while the buyer ended up with a property which he, in all likelihood, would have to arrange access arrangements, it was not through any negligence on the part of the estate agent.

 

The scope of the ombudsman investigation did not extend to the seller himself, but only within the remit of whether the estate agent had been in any way at fault. Having gone through the company file the ombudsman was satisfied in the decision not to uphold the claim by the buyer.

 

Access to the property is a matter that the buyer should have raised with their solicitor in order to request documentary evidence before exchanging contracts.

 

A lesson to also take away is that if there are any grey areas where further investigation is needed, the details should not form part of the sales particulars until confirmed. In this area the ombudsman did not find against the estate agents because they had acted in good faith with assurances from the seller.

 

Also another lesson to take away: While in this case neither buyer or seller were doing their own conveyancing, if you are ever thinking of going down that route in the future, make sure to examine all areas carefully. The seller had been going up and down that road for forty years and had assumed a public right of way. Never assume anything!

 

Conduct due diligence before buying by auction

Buying a property by auction is a method that seemingly circumvents the long drawn out process of submitting multiple offers for a property, then waiting for the estate agents to get in touch with the sellers before returning with a counter proposal. Ever bought a property the common way before? You ring up various estate agents to be on their books, scour property websites, book an appointment for each potential viewing, second viewings for more attractive properties, submit a low bid, wait for the agent to get hold of the buyer, get back to you, and then repeat multiple times until a satisfactory bid is accepted. And that is not even half the tale. The problem is that in between the various stages, there can be significant time lags, some on your part, some on the agents, and some on the buyer. Some of these delays can be intentional, and some can be deliberate.

You might disagree with the last statement in the previous paragraph. Deliberate delays? By yourself?

Let’s give an example. Perhaps you have viewed a property and like it. You would want to make an offer to avoid another buyer snapping it up, but make an offer too soon and the agent and seller know you are keen. Your first couple of offers are likely to be rejected. Remember that the agent is working for the seller to get the best possible price, and not for you, and will keep pushing you back until he senses he has extracted every last pound from you. Your rate of response is an indicator of how keen you are on the property, and also a hidden signal of how much more you can go. Hence while you are eager to get hold of the property, you may feel it is wise to slow down any counter offers you make or any further contacts with the agent, to give them the impression that the property is not all that important to you. It is a way of making them sweat instead of you.

Of course, estate agents are wise to these antics – they themselves partake in it. When they say they will get hold of the seller right away, do you really think they are ringing the seller every twenty minutes until he picks up? More likely they will leave it until the end of the day, or tell you the next time you’ve rung that they haven’t heard back yet. They are deliberately introducing delay to make you get jittery and also to flush out your interest. And this is done to multiple buyers to extract the best property price. And in doing so, the best commission.

But in the process, a lot of time is wasted.

This is perhaps why a sale by auction draws so many. It is a scenario where all cards are on the table, all offers presented in public view – unlike a sealed bid process, where all cards are presented to the estate agent without any form of public scrutiny.

Buying by auction seems a simple enough progress. There are many ways to go about it. Before an auction takes place, all buyers view the property in order to ascertain a bidding strategy and the upper limits to which they will bid. It is important that a viewing be made as there are many things that can be gleaned away from the sales brochure. While agents are bound to market the property responsibly, they are looking to get a commission by sale and would of course market it in the most positive light. You cannot go by the sales brochure alone.

Potential buyers may make their interest known to the marketing agent, and their bid acts as a reserve.

On the day of auction, bidders either attend in person, or send a proxy to represent them in the auctions.

A property auction can be a strange scene. A room with some bidders in person, some on the phone with clients, the agents trying to draw prices towards or above the reserve. Sharks circling for the kill? Perhaps, but sharks would only come if there is food for the taking.

The importance of having viewed the property prior to auction cannot be stressed. The Property Ombudsman was recently called to resolve a dispute between a buyer and an agent.

The dispute centered around an auction property that had been incorrectly described as having two bedrooms instead of being listed as the one bedroom property that it was in reality. The error was only corrected at the last minute. The marketing agent found out only the night before and endeavoured to contact those who had submitted bids, presumably to get them to notify him of a withdrawal if they did not want to continue. At the property auction the property was clarified to be a one bed property, and as could be expected, the winning bid did not come from any present among the bidders. Instead it came from one the agent had received a prior written bid on.

The property ombudsman had to mediate between the “winner” who claimed the agent had misrepresented the property. It found that the buyer should have been aware of what was being purchased and done his own due diligence, but it also found that the agent should have made better attempts to get in touch with the buyer to ensure that the change in sales description was acknowledged.

The agent was asked to recompense the buyer to the tune of £750 but there was no compensation for the difference between the price between a two bed flat and a one bed flat.

Buying by auction presents conveniences but don’t be misled. There are responsibilities on the part of bidders and agents that arise as a result. If you are considering buying by auction, it goes without saying you absolutely must see the property before buying!

Beware the internet-only buyer

If you were an estate agent, what would you do if a buyer wanted to make a purchase of a property without even seeing it?

You might commend yourself on the quality of brochures and website. Maybe the website has flash features that allow your users to see the interior of properties in a panoramic view, which in itself is a good thing because it means it cuts down on the number of initial viewings you have to do, if potential buyers can look at a property beforehand and not have to book an appointment to view it.

Technology has significantly improved our lives and sped up processes, and is an advantage that there is less time spent waiting, communication flows faster, and information is more accessible.

Take for example, the conveyancing process. In the days before the internet the conveyancer went about his business and if you wanted to know at which stage a house purchase was at, you’d have to keep ringing or pay a visit to the office. Now the conveyancer can log the stages that have been complete, and you can view a record of work on your mobile device. You don’t have to waste time or money calling the conveyancer, he or she doesn’t have to be distracted from his work, and it is a win-win situation.

Having technology and using it well is also a time saver. Nowadays it is easy to view the interior of properties, and a schematic of the property dimensions before actually setting foot in the property. It cuts out one layer of viewings both for the interested party and estate agent, and because any information about the property can be put online, such as whether it is a freehold or leasehold property, the ground rent, or any information on the vicinity – the estate agents are able to give as much information to buyers, which not only saves them from repeating the same facts over and over again, but also helps by filtering out uninterested buyers (for example, if the property was leasehold and the buyers wanted one with a share of the freehold) and diverting in potential buyers. In the latter case, for example, if a property is within the vicinity of a good school, putting up the information online would help draw in buyers with families.

In the examples above, we have written about the benefits of technology with reference to property sales, but the benefits are equally applicable to lettings. The use of technology accelerates the initial stages of a sales or letting for both an agent and a consumer and for an agent, the people that get in touch thereafter can be said to be considered serious parties. Nevertheless, no matter whether the property is for sale or for rent, there is no substitute for actual viewing somewhere down the line before signing on a purchase. Even people who buy off plan visit the site to acquire a feel for the actual place, one that cannot be obtained from the glitz and glamour of a website or sales brochure.

So it was slightly surprising, even suspicious, when a TPO member agent received emails from a overseas buyer in China, who wanted to make the full asking price on a property, but without having actually setting foot in it.
The estate agent was sought by emails  times. Each time the overseas “buyer” demonstrated an interest in offering the full asking price offer on a property. The TPO member agent asked for personal documentation and when they arrived by email the documents were found to contain a series of potentially destructive computer viruses. Thankfully the member agent had exercised caution and vigilance, and exercised good judgement in not getting swept away by the opportunity of making a quick sale.

The Property Ombudsman (TPO) has issued a warning to all estate and letting agents to act with caution, as fraudulent ‘buyers’ target agents with the latest computer virus scam. It is not entirely dissimilar to the ransomeware viruses that crippled the NHS a few months ago, and there are no limits to which fraudsters will not go to in order to hijack a computer, even to the point of nurturing a business relationship before going in for the kill.

What would you do if you received an unsolicited email from a stranger? Your first instinct may be to google them to see if they exist. But fraudsters will have already done so, and assumed the identity of someone to appear credible. It may be prudent to exercise caution in these dealings.

It is not known what impact the viruses could have had on the agent’s IT system if it had not been identified.

Gerry Fitzjohn, Board Chairman for TPO commented: “Fortunately in this case, the scam was identified and no company or customer details were compromised.  However, this is a reminder to all agents to be both cautious and vigilant. The importance of antivirus software is a given, but it is not a guarantee against computer viruses, so the best defence is also an educated user. If something seems too good to be true, it usually is. We would urge all agents to circulate this warning amongst staff.”

Considering a Quick House Sale?

We often run into temporary signages promising quick house sales. While this is a eye-catching solution to those who need to sell their property fast, wish to avoid dealing with solicitors, or cannot afford to hang around for what seems like prolonged periods waiting for details to be finalised, it is advisable best to be cautious – after all, everything has a catch, a string attached somewhere.

In a quick house sale, a business (provider) offers to buy the property or find a third party buyer very quickly. In return, the seller usually accepts a ‘below market value’ price for their home.You should think carefully before opting for such a sale. These top tips should help you when deciding whether you really need or want a quick house sale. If you decide to go ahead, they will help you to choose a provider, spot the things that could go wrong, and understand how to prevent problems.

1. Consider all your options
There may be more options than you think. They might help you to keep your home if you don’t want to sell or to sell at a better price.

2. Take time to find out about the process
What are the pros and cons? How does it compare to alternatives such as using a normal estate agent or negotiating with your lender? Will a quick house sale provider suit your specific needs?

3. Look for the services that work best for you
Not all providers are the same, so look at what different ones can offer. Don’t accept their claims at face value. For example, if the provider says ‘completion in days’ or ‘we pay close to full market value’, ask how often they do this.

4. Check out providers’ credentials
If providers say they have signed up to a code of practice, redress scheme, or are regulated by an official body, check this for yourself. Also check to see what protection the code of practice, redress scheme, or regulation offers you.

5. At each stage, make sure you have the information you need to make informed choices
If you don’t understand something, ask the provider for answers and don’t proceed unless you are happy with them.

• Who is buying the property?
• How will they pay?
• Is there proof that they have funds available?
• When will the sale happen?
• Who is valuing the property and how?
• What is the offer price? Will this change? If so, why?
• If the survey is given as a reason fora reduced offer, ask to see it.
• What fees and charges will you have to pay? Will you have to pay them even if you don’t go ahead with the sale?

We would advise choosing providers who offer you the information listed above without having to be asked for it.

6. Never accept verbal information or promises
Always get the provider to put them in writing.

7. Don’t be pressured into a decision you are not comfortable with
For example, the provider should not require you to use a particular solicitor.

8. Before you sign any agreement, read it carefully and obtain independent legal advice if you are at all unsure

Do you understand what you’re being asked to sign and its implications? Don’t sign an agreement unless you know what you are agreeing to. Also, never be shy about negotiating on price.

9. Watch out for long tie-ins

Be wary about signing any agreement that ties you to the provider for a longer time than you are happy with. If you want a speedy sale, question why a quick house sale provider would need an agreement for more than four weeks.

10. Be honest and accurate when answering questions
Giving incorrect information or leaving important things out is likely to be uncovered later and may cause hold-ups and even reductions in the offer price. In some cases the sale may even fall through.

11. Don’t commit to the sale until surveys and legal checks have been carried out, you have a final offer in writing and you have independent legal advice

Be cautious of making major financial commitments, or other decisions you might regret if the sale did not go through as expected.10. Be honest and accurate when answering questionsGiving incorrect information or leaving important things out is likely to be uncovered later and may cause hold-ups and even reductions in the offer price.

If you are still unhappy, you can:

• Talk to Citizens Advice. They providefree, confidential and impartial advice.Visit www.adviceguide.org.uk or call the consumer helpline on 08454 04050612.

12. What if things go wrong? If you are not satisfied with the provider’s service, tell them and give them a chance to investigate and resolve your complaint.

• If the complaint is about the provider’s advertisements, report the matter to the Advertising Standards Authority. Visit www.asa.org.uk or call 020 7492 2222
• Report the matter to your local Trading Standards Service
• Consider whether to take your own court action if you feel the provider may have: breached the contract, used an unfair term or misrepresented something that was important to your decision to sell to, or through, them. You should obtain legal advice first.

Guidance and Information for Residential Leasehold Block Management

Who is responsible for Buildings Insurance?
The responsibility for insurance for the building and common parts will normally fall on the freeholder, but this expense is normally recouped through the implementation of service charges.

What are Common Parts?
Common parts are parts of the building not owned solely by one leasehold occupant. Put simply, they are the common areas such as stairwells, main entrance doors, communal gardens or lifts. The maintenance of these are the responsibility of the freeholder and the cost is shared through service charges.

What is Ground Rent and who pays it?
If you are a leaseholder, it is likely you will have to pay ground rent to the freeholder. Your leasehold covers the cost of your own flat or dwelling; your share of the ground rent is normally divided by the number of flats in the building.

Who is the Freeholder?
The freeholder is also sometimes called the superior landlord. The freeholder owns the building – this includes the individual flats and communal areas. The freeholder leases the individual flats to the leaseholders. If you have bought your flat as a leasehold flat, you will need to renew the lease before it runs out, through agreement with the freeholder.

The freeholder is usually responsible for the maintenance and repairs of the building; however costs for maintenance and repair are usually recovered through service charges. It is not uncommon for freeholders to invoice leaseholders for additional repairs to the building.

Illegal / Criminal Activity
Allegations of illegal and criminal activity (e.g. fraud) should be referred to the relevant authority (such as the police) or regulators (such as Trading Standards) who are empowered to undertake enforcement action. The Ombudsman does not have regulatory powers and cannot consider allegations of illegal or criminal activity.

What is the Lease?
The lease is the official document that sets out the contractual obligations between the freeholder and the leaseholder. If you purchase a property, you are buying the terms of the lease. When a leasehold property is sold and changes hands, the rights and responsibilities of the lease are transferred by the seller to the purchaser.

Who is the Leaseholder?
The leaseholder is the party that is leasing the property subject to the terms of the lease. If you are buying a property on leasehold, unfortunately it is as if you are still renting from the freeholder. You might not be paying rent, but you still have a limited time on your property before you need to renew the lease. Leaseholders should be aware of all conditions set out in the lease. Sometimes the freeholder may grant you a new lease on purchase but it is usually unlikely, because it is easier to manage the leases of all flats if they are concurrent. Leases are usually granted on a 99 or 999 year basis, and it is advisable to renew them before they run down to 20 years, because then the advantage lies with the freeholder. If you are a leaseholder, it is best to negotiate a new lease with your freeholder before that stage.

What does the Letting Agent do?
A letting agent is an estate agent that the leaseholder may instruct to find a suitable tenant. The responsibility of the letting agent may also extend to the management of the property in the absence of the leaseholder. In other words, a leaseholder who has bought a property may not necessarily reside in the property, preferring to rent it out. The leaseholder may ask a letting agent to look for a tenant. The responsibility for dealing with the freeholder nevertheless still lies with the leaseholder. The letting agent is merely the intermediary between the tenant and the leaseholder, and neither the letting agent nor tenant should ever have to deal with the freeholder.

What is a Resident Management Company and what does it do?
If a group of leaseholders intend to amend the management of their property, either through themselves, or through the formation of a new company, they have a legal right to buy the share of their freehold. The Commonhold and Leasehold Reform Act 2002 makes provisions for the governance of a freehold to a company set up by the leaseholders, or to the leaseholders themselves. This allows leaseholders as a group to decide the management arrangements for the building. This is particularly useful if the current leaseholders feel that the management of their property is not to their satisfaction – e.g. if the maintenance of common areas is not frequent, or if freeholders are not seen as being pro-active – and would prefer to have more control over how the property is managed.

How is a Residential Leasehold Management Agent different from a Residential Management Company?
A residential leasehold management agent manages the company and is normally appointed by the freeholder or the resident management company. The fees for day-to-day management are footed by the leaseholders as part of the service charges. If there is an occasion where major works are anticipated, an additional fee may be levied by the agent, and each leaseholder may have to account for a percentage of the total cost of such works.

What is a Residents’ Association?
In the case that leaseholders do not own a share of the freeholder, they may consider forming a Residents’ Association to liaise with the freeholder on such matters. Residents associations are made up of members from the different properties, and have responsibilities and rights, such as the entitlement to be consulted on certain matters such as the appointment of managing agents.

What are Service Charges and who pays them?
Service charges are paid by the leaseholder to the freeholder and usually cover the maintenance of communal areas. The lease normally sets out details of what can and cannot be charged by the freeholder. The proportion of the charge may be divided either equally among the number of flats, or by ground area.

The costs of services should be reasonable and in the event that leaseholders feel they are being unreasonably charged, there is the avenue for them to challenge perceived unreasonable service charges at the First-tier Tribunal (Property Chamber).

Why have Reserve Funds?
A reserve fund, also known as a sinking fund, is a fund from previous accumulated service charges for the payment of emergency repairs or other major works. Many leases allow the freeholder to collect sums in advance for such emergency repairs, or to alleviate the higher cost of future works. The sinking fund or reserve fund is usually capped at a certain amount – that is to say, once it has reached a certain figure – so once that has been attained the service charges for future years may be reduced.

Who has the Right to Manage?
Under the Commonhold and Leasehold Reform Act 2002, leaseholders can have the option of deciding who the management of their building should lie with. If at least half the leaseholders agree about the future managements of their building, then the freeholder cannot legally obstruct the process. That is to say, if leaseholders decide to take on the management of their building, or decide to instruct a managing agent in place of the freeholder instead they are legally entitled to do so if more than half of them agree.

What rights do Tenants of Leaseholders have?
While the block management agent will act in the best interest of their client – usually the freeholder or the leaseholders – they must treat any tenant of a leaseholder fairly and with courtesy. If in doubt, the block management agent should refer to the lease as a reference.

Buying a property? Some information for buyers

Buying a property can be like navigating a minefield. Here is some information you should know when considering a purchase.

Access
If the agent holds the keys, agency staff should accompany those who are viewing and anyone else requiring access, unless the seller gives authorisation to the contrary.

Advice
An agent will offer appropriate advice, explanations and assistance to all regardless of age, race, religious belief, gender, sexuality, ethnicity, or disability.

However, bear in mind an agent’s duty of care is to his client.

Agency Agreement
Types of agreement the agent may offer:

Sole agency which means that if contracts are exchanged with someone who your agent has introduced to the purchase, the agent will be entitled to the fee.

Sole selling rights which means that if contracts are exchanged with someone who your agent has introduced or was introduced by another agent or with someone you yourself introduced during the agency period the agent will be entitled to a fee.

Multi agency which means that you have instructed a number of agents and agreed that the agent who introduces the buyer to the purchase will be the one who is entitled to the fee. Note that multi agency fees are generally higher than for a sole agency.

Ready, willing and able which means that if someone is demonstrably ready, willing and able to purchase your property (even if an exchange of contracts does not occur) then the agent will be entitled to a fee.

Ensure that you understand:

The fee that will be charged and whether it is based on a sliding scale or a fixed amount.

How long the agreement runs for; how you can terminate it and with what period of notice is required.

Whether you will have any continuing liability to the agent for a fee if you do terminate the agreement.

The options open to you regarding the preparation of the Energy Performance Certificate (who will supply it and the cost).

The arrangements for boards and whether the agent will accompany all viewings or is expecting you to conduct some or all of them.

In particular you should:

Understand that you when you sign the agreement you are entering into a legally binding contract under which you may be liable for fees.

Ensure that you have read and understood the terms of the agreement and the commitments you have entered into. Do not feel pressured into simply signing it and be aware that if you sign the document in your home or at your place of work you are entitled to cancel it within 14 days.

Make sure that you receive copies of all relevant documents such as the agreement, terms of business and the final sales particulars after you have approved them in draft form.

Associated Services
You are not required to use any associated service which is offered by the agent. You are entitled to use your own financial adviser, legal representative and surveyor. Refusal of additional services should not prejudice any offers or viewings made through the agent.

If the buyer accepts services offered though the agent, the agent must inform the seller in writing of those services.

Buying a Flat
When buying a flat the estate agent should provide you with information such as the level of services charges. Further information can be found in the TPO Code of Practice for Residential Estate Agents and here.

Duty of Care
An agent will always work in the best interests of their client, that is to say the person who is paying for the estate agency services (usually the seller). An agent should treat all those involved in the proposed sale or purchase fairly and with courtesy. If the agent or one of his staff has any personal or business interest in the property, this must be divulged as soon as possible in writing.

Energy Performance Certificate
The agent should advise the seller about his obligations to obtain an energy performance certificate, prior to marketing begining.

Buyers can ask to see the energy performance certificate for the property.

Fees and Charges
An agent must inform you in writing, before you agree to use his service, what fees (including VAT) are payable and when they are due. Fees must be clear and transparent.

Financial Checks
An agent will ask sellers to provide proof of identity, as required by the Money Laundering Regulations 2007. Buyers will be asked for similar information, along with details of their funding for the proposed purchase at the point an offer is made.

Illegal / Criminal Activity
Allegations of illegal and criminal activity (e.g. fraud) should be referred to the relevant authority (such as the police) or regulators (such as Trading Standards) who are empowered to undertake enforcement action. The Ombudsman does not have regulatory powers and cannot consider allegations of illegal or criminal activity.

The Legal Representation
A licensed conveyancer or solicitor and will progress the formalities of the sale and determine with you the potential dates for exchanging contracts and completion.

The Mortgage Provider
If you require a mortgage to buy the property you may be dealing with a bank or building society, either directly or through an adviser. The agent is not allowed by law to give you any financial advice but he might refer you to an adviser with which he has links or which is a separate part of the same company. The agent will not have access to the records of the mortgage provider or adviser and has no control over the progress of any mortgage application.

Marketing
The agent must describe the property as accurately as possible and not misrepresent the details.

Agents are legally bound under the Consumer Protection from Unfair Trading Regulations 2008 to describe a property truthfully and provide material information to allow potential buyers to make an informed transactional decision. Sales particulars should give a general description of the property and will highlight, for instance, the type of heating, double glazing installed, or appliances or furnishings that may be included in the sale. The agent will not have tested any facilities but if they are of particular importance to you it is wise to question the agent further and he can ascertain the relevant information from the seller on your behalf.

Negligence Claims
Negligence is a term with a legal meaning and only a court can decide if an agent’s actions or inactions were negligent. The Ombudsman cannot decide claims of negligence and cannot speculate on what a court may decide. Consumers should seek legal advice if they wish to pursue a negligence claim.

Offers
The agent must record all offers received and pass a written copy of the offer promptly to the seller. The agent must not conceal, misrepresent, withhold or delay communicating offers.

The agent should confirm your formal offer in writing to you and whether the seller has accepted that offer.

It is the seller who decides whether to accept an offer; to reject an offer; when to stop marketing the property after an offer has been made, and to whom to sell the property to and at what price. The agent can only guide the seller in this regard, it is not his decision. The agent is working for his client, the person selling the property.

Pre-Contract Deposits
As a general rule, estate agents should not take pre-contract deposits. However, in the case of new home sales, agents may take into account specific instructions from sellers. If a deposit is taken, then a written receipt must be given, and the circumstances under which the deposit is held and any interest accrued are refundable, must be clearly stated in writing. Unless the agent’s client has provided written authority, agents should not deduct any costs and charges from any client’s money. In Scotland, agents are not allowed to accept pre-contract deposits.

Role of the Estate Agent
He is instructed by the seller of the property but has a responsibility to treat any prospective buyer fairly.

The agent is required to act in the best interests of his client. The agent will ususally conduct a market appraisal, draft sales particulars, ensure an energy perfomance certificate is in place, agree a marketing strategy and undertake viewings, whilst receiving and passing on offers. The agent has no control over the legal process but will generally assist in checking on the progress of the purchase and, if agreed, in handing keys over on completion of the sale.

‘For Sale’ Boards
The agent must ask if the seller wants a ‘For Sale’ board to be displayed and ensure that only one board of the correct size is displayed for each property.

Boards must not be displayed in areas where they are not permitted.

Sale by Tender / Buyer Pays Fee
Sale by tender/buyer pays fee is an alternative commercial practice that has developed across the industry with a number of agencies employing it as a way of attracting business by offering sellers their agency services for reduced or zero cost fees. Under this approach the agent enters into an agreement with a seller to market a property whereby offers are submitted through a sealed bid/tender process.

Prospective buyers submit their offers to the agent having entered into an agreement to meet the agent’s fee liability which is over and above the agreed price for the property.

Sealed Bids
The process whereby the agent asks all potential buyers to make a ‘sealed’ offer to be received by a certain date and time. The agent will ‘open’ the offers at the designated time and advise the seller accordingly. The seller will then choose which offer to accept. The seller and the buyer retain the right to withdraw from the purchase thereafter.

Survey and Valuation
The surveyor or valuer will be engaged by the prospective buyer or their mortgage provider and will offer various types of surveys from a general valuation report to a structural survey. Unless the mortgage provider specifies otherwise it is the buyers choice as to the type of survey undertaken.

Terms of Business
All agents must give their clients written Terms of Business. The agent must clearly explain all fees and charges and tell you if any fee will be payable if you withdraw your instructions to sell the property.

Viewings
The agent must seek and act on the seller’s instructions about how viewings should be conducted.

Reasonable notice should be provided to the occupants of the property, prior to the viewing taking place.

If you can think of anything else we may have left out, leave a comment and let us know!

The Dispute Resolution Process

What is the purpose of The Property Ombudsman service?

It is a dispute resolution service between consumers and property agents. The advice offered by the property Ombudsman is free, impartial and independent.

Property agents are encouraged to sign up with the property Ombudsman for various reasons. A membership with it shows an agents’ professionalism in the sense that they are committed to the professional standards, thereby increasing the customer’s confidence in them.

In the event of a dispute, the ombudsman service saves both property agents and customers time and money through the cost of legal fees and legal procedure. The advice is free. And the fact that the infrequent aspects of disputes are taken up by the Ombudsman means that agents are free to concentrate on the real aspects of their business, in marketing, maintaining, renting and selling property.

Complaints Procedure
As one of the terms of membership, property agents have to have some formal complaints procedure in place for customers who may be dissatisfied with their work for some reason. This procedure must of course be in writing and should not only explain how customers can file a complaint, but also that if they are dissatisfied with how it has been investigated, they can take their complaint on to the Ombudsman. It goes without saying that this procedure must be made available to the complainant upon request.

The Code of Practice detailed by the terms of membership has specific timescales for complaints resolution that estate agents must adhere to. In the event of a dispute the Ombudsman will use these established timescales for reviewing if complaints have been dealt satisfactorily by the agent.

When a complaint is received by an agent, the person receiving it should make some form of acknowledgement so there is a record that the complaint has been noted at the property agent’s. It gives a “start date” from which resolution can begin.

If a complainant has been made either by telephone or in person, a record including important details such as the date and time must be noted. At this point the complainant should be provided with a copy of the in-house complaints procedure.

If the complaint has been made over the phone, this copy of the complaints procedure should be sent to them.

If the complainant has visited to make the complaint in person, a copy should be given to them immediately.

At this stage the emphasis is on recording issues formally, so that at a later stage there is no ambiguity over the nature of the complaint, or what was said by whom.

In both cases property agents should request that the complaint be put formally in writing, giving the name of the individual to whom the complaint should be addressed, so that the matter can be promptly investigated. An acknowledgement of the written complaint should be despatched within three days, while the timescale for an investigation and for providing a full response should be within fifteen working days.

If the latter timescale is unable to be met, then the complainant should be provided an estimate of how long it would take for the investigation to be complete.

It is a good practice that complainants have to file their complaints in writing. Not only does this provide a record of the specific issues they are seeking redress over, so that the property agents and – if necessary – the Ombudsman can investigate, it also is a way of ensuring that the complainants are clear themselves over the particular issues that have led them to complain in the first place. In addition, the work of having to formally file a complaint is a way of ensuring that the matter is one of signifcance.

What can count as a complaint?

A complaint could both be over a belief of inaction or malpractice. This means a consumer can make a complaint over something they believed a property agent should have done but didn’t, or one in which the action was wrong. For example, a tenant could make a complaint over property repairs that were promised but have yet to happen. Or the same tenant could make a complaint if repairs to a property were not up to standard.

Any complaint received should be treated seriously even if the property agent’s general feeling is that is has no weight. The complaint must be dealt with in accordance to the above procedures, and the agents must remember to follow procedure.

Property agents must remember to request that verbal complaints are put to them in writing.

A complaint should be dealt with by a senior member of staff who was not directly involved in the transaction. This ensures that there is no bias in the investigation. If the matter remains unresolved after fifteen days, another review should be sent up the chain to the Managing Director or Senior Partner or Principal. Similarly, this person should have had no previous involvement to ensure impartiality in the process.

But what about the case of practitioner firms, where one person runs the whole show? The sole practitioner must clearly state to the complainant and later the ombudsman (if the matter is subsequently referred) the level of their involvement in the matter to ensure that the level of impartiality is set out from the onset.

 

In some cases, property agents may wish to make some financial recompense towards the complainant to make restitution in the matter. The goodwill offer should always be appropriate to the matter, as an offer that is desultory only serves to inflame tensions.

The Ombudsman always encourages quick resolutions of disputes, because it is a positive process from which both parties can move forward. This does not mean, however, that the Ombudsman always encourages financial recompense. But in cases where complainants file a dispute because of work not done, or not up to standard, a goodwill offer to make good the matter may be a more healthy way forward for both parties, rather than be dragged into legal matters where the time and energy spent trying to apportion blame and responsibilty may outweigh the size of the claim.

If the complainant accepts the goodwill offer in full and final settlement of all complaints, the Ombudsman will consider the matter closed and settled.

However, if a complainant does not acceptable the goodwill offer, either because it is not appropriate to the size of the matter in dispute, because he or she feels that the property agent has not addressed the complaint fully, the matter can be referred to TPO. It some cases where both parties indicate a willingness to settle, but are finding difficulty in reaching a settlement, the Ombudsman may be able to mediate, subject to the approval of both parties. Neither party has to accept this, and in this instance the complaint will proceed to a formal review.

 

If – in the initial instance – TPO is contacted before complainant gives the property agent a chance to resolve their problem in accordance with their complaint procedures, TPO will refer them back to the agent to give them a chance to resolve the matter first.

After fifteen working days, the investigation should be complete and a final viewpoint letter should be issued to the complainant. The purpose of this final viewpoint letter is to provide a written statement which clearly expresses the property agent’s final view on all the complaints raised, and should include mention of any goodwill offers made.

Additionally, it should make the complainant aware that they may refer the matter to TPO if they feel the matter has not been resolved. The final viewpoint letter from the agent should also advise complainants of the timescale for bringing a complaint to TPO.

The final viewpoint letter is a first summative stage of the complaints process. And while it is a summary of the interactions between property agent and complainant, it can be said to form the starting point of TPO’s investigation, if the matter is passed up the chain. It would be easier for TPO, hence, to see that a final viewpoint letter has the date when the complainant has completed the in-house complaints procedure, and what the agent tried to do to clarify the issues considered under that procedure. It should also advise the complainant of subsequent options.

The final viewpoint letter should be headed as such, so it is clear to the complainant that they have completed the procedure, and if they wish to pursue the matter further, they have to go to TPO.

If fifteen days are not enough for the property agent to investigate the complaint, and if progress in the investigation has not been forthcoming, the Ombudsman can take up the complaint even without a final viewpoint letter.

 

The assumption so far in the above is that the complainant is a tenant and the dispute is against the property agent for work not done or work not done to an acceptable standard. But the fault may not necessarily always be entirely of the property agent. Sometimes a complainant, the tenant, may file a complaint but a dispute may have arisen directly or indirectly of certain actions, such as when the tenant has not paid fees such as rent. In cases where there are outstanding fees, the Ombudsman will make the complainant aware that legal action for recovery is possible and within the legal rights of the property agent, and the Ombudsman will suggest that the fee, or any uncontested part of it, is setlled on a “without prejudice” basis.

If property agents are considering legal action to recover fees under a contract, the Ombudsman may either escalate the case for review before the court date, or suspend the review pending the court decision. In the latter case, any subsequent review will only deal with aspects of the complaint not determined by the court, as the Ombudsman does not override and cannot override any matters dealt with by the court.

Property agents need to submit a copy of their company file, which contains certain documentation commonly used to review complaints is listed here. These are confidential and are not released to the complainants, unless the Ombudsman feels copies of relevant documents not previously seen by the complainants may be necessary for them to understand the reasons for his decision – in which case, it is legal for the complainant to see the relevant information.

Upon review, if the Ombudsman supports the complaint, property agents have 14 days to either accept, or appeal the decision. During this time property agents may appeal if they consider that there is a significant error in fact or new evidence that will have a material effect on the decision can be produced.

Both agents and complainants will be informed of the result of any further consideration.

The complainant is given 28 days in which to accept, not accept or make their own representation.

If the Ombudsman does not support the complaint, the complainant will first be contacted in writing about the proposed decision, and given 28 days to produce significant new evidence with bearing on the case or show there is a significant error in fact in the judgement.

The Ombudsman will consider any further representation and if the complainant accepts the proposed decision it becomes legally binding. But if the complainant does not respond to the proposed decision any award will then lapse and the case will be closed Nevertheless, complainants will be free to pursue their complaint elsewhere, but, the Ombudsman’s decision will no longer valid and cannot be used to support any further action.

For those who are new to the property ombudsman service, it is akin to a small  claims tribunal for matters around property.

The property ombudsman aims to mediate between smaller disputes outside of the court, thereby resolving them more quickly and freeing up court time.

Even though the property Ombudsman may make recommendations for awards up to twenty-five thousand pounds, the  average compensation figures were around three to six hundred pounds.