Those of us who have been in the property market for long enough will remember the disastrous introduction of the Home Information Pack, an attempt to move away from Caveat Emptor (“Let The Buyer Beware”) to ensure more transparency at the outset of conveyancing transactions. The latest development in this area is the amended TA6 Property Information Form, released in the Spring of this year, designed to enhance transparency and reduce the risk of incomplete disclosure.

The updated TA6 form aligns with the guidance issued by the National Trading Standards Estate and Letting Agency Team (NTSELAT) regarding the disclosure of material information. It establishes a heightened duty for estate agents, sellers, and their solicitors to provide prospective buyers with all relevant information that could influence their decision to purchase or make an offer. This includes latent defects in the title, which are now required to be disclosed.

These changes have raised some controversy over concerns about the expansion of material information potentially altering the exposure of sellers, agents, and solicitors to liability (potentially criminal) under the Consumer Protection from Unfair Trading Regulations (2008) (CPRs). Infringements of the CPRs by solicitors can result in significant penalties, including fines,  imprisonment for up to two years, or both.

On June 3, 2024, the Law Society published a new practice note asserting that the full effect of the CPRs is not yet known and will clarified through judicial interpretation. Solicitors must exercise utmost diligence to avoid misleading actions, or omissions, and adhere to the standard of care and skill that is in accordance with honest market practice and good faith (‘professional diligence’).

The relationship between a solicitor’s duty of confidentiality to their client and the duty of disclosure under the CPRs remains uncertain.

Impact on Estate Agents

Similarly, estate agents now face increased liability to pay compensation to the buyer and prosecution. Transactions may also be unwound if an offence is committed. Estate agents must publish all material information that could influence a buyer’s decision to view, make an offer, or the offer amount. This requirement extends to lettings literature as well as the CPRs do not distinguish between buyers/tenants.

The new guidance requires an early engagement of a selling solicitor to ensure proper disclosure of material information. This includes verifying details such as parking rights, the inclusion of loft spaces in lease demises, the existence of an absent landlord, and planning consent for extensions.  

The updated TA6 form is intended to be completed by the seller with their solicitor prior to the property listed going live on the market and will furnish the agent with the information for the marketing literature. A failure to disclose material information by the agent could result in substantial penalties enforced by trading standards.

NTSELAT has guided what constitutes material information:

• Part A: Inescapable costs such as rent/council tax/service charge.
• Part B: Essential property information that must be established for all properties, such as details of construction, utilities and parking.
• Part C: Considerations such as flood risk and whether the building is listed, or in a conservation area.

The new property information form addresses these concerns. As long as the agent receives a completed form from the seller’s solicitor and includes all relevant details, they will significantly mitigate their risk of prosecution.

At Oracle, we are prepared to assist estate agents by providing a service to prepare the new TA6 form in conjunction with the property’s market listing, ultimately helping to minimize potential legal risks and ensuring compliance with the updated regulations. For future assistance or to discuss how we can support your compliance efforts, contact our team today, led by our Head of Real Estate Sarah Sandy.