Is Tickeverybox Breaking HIPs Law?

Can websites bringing together 'private sellers and buyers' avoid HIP obligation?

Submitted by: MikeC (Admin) on 20-Aug-07 03:42:55 PM

On Friday (17th Aug), I came across a blog-post: Spot the Energy Performance Certificate Graph? on tickeverybox.com, which is commenting on the lack of estate agents displaying EPC graphs; the author ended the post with the following note:

Tickeverybox.com has no obligation to display EPC graphs or HIP information because we are a private sales website. However, we recognise the importance of EPC’s, and have included some easy software (punching in 4 numbers!) for private sellers to attach their own graphs. We think we are the first private sale website to provide this function.

(Emphasis mine)

Now I know that private house sales can avoid Home Information Packs (HIPs) - and by extension, the Energy Performance Certificate - but I was curious if sales conducted via the services of a third-party were similarly exempt.

So I posted the following comment/reply:

"I’m curious as to the definition of “private sellers”, as it pertains to this (and any possible other) site?

On your FAQ page you use the word “advertising”:

‘How do I contact a buyer or seller advertising on your site?’

Forgive me - I probably don’t understand how the site operates - I just can’t seem to make the distinction between a publically-accessible website, “push-marketing” (via SMS), listings on 3rd-party home-selling sites, and (the notion of) private.

Genuine question."

It was, and still is, a genuine question.

(Actually, I can make the distinction, just not in the context of their note).

The comment (understandably) went into moderation for approval (pesky blog-spammers) but that was on Friday and it has still not been published (not that they are obliged to, BTW).

Hence my post here.

Personally, I have my doubts as to the legality of this - The word "advertising" appears in several places throughout the site and they also proclaim to list '... your property for sale on the biggest house sites where estate agents advertise their houses...'.

Doesn't sound right to me but I have an open mind - What do you think?

Tags: Energy-Performance-Certificate, Home-Information-Pack

Posts: 12

Reply
Reply #1 on : Tue August 21, 2007, 11:47:00

You will find your comment is published on our site.

Private sales are by definition property sales that are conducted by the vendor and not an agent. Private sale websites are advertising portals - we have access to affiliate portals such as Fish4Homes, Home, Channel4Homes etc, and so, private sale homes can be displayed on them. Do not mistake private sales websites for internet estate agents - they are different operations (with vastly different charging structures). An online agent is defined as providing a service that acts as a third party in negotiations, fielding property enquiries, arranging viewings etc.

We provide a private messaging service whereby the buyer and seller can make direct enquiries, arrange own viewing times and ultimately place an offer. This is all done without our personal involvement. Vendors telephone numbers are also displayed on the property info page for direct contact.

As a private sale website we are not regulated by any industry body, ie. NAEA, RICS, Ombudsman and are therefore not subjected to Estate Agent Act 1979 or provisions of the Housing Act 2004.

The Housing Act Part V requires Estate Agents to display EPC graphs on sales particulars. My blog post was merely an observation on the number of EPC graphs that are not displayed and that property adverts in the press do not seem to be promoting 'HIP available'.

tickeverybox.com provides the tools for vendors to both show that a HIP is available to a buyer and to attach EPC graphs to sales information - although we are under no legal obligation to do so.

I fail to see what point you are trying to make. Is it that you don't understand the private sales procedure or are you trying to imply that we are promoting a 'get-out' option for EPC's?

I would be pleased to clarify any other points. My contact details are on the website.

Posts: 12

Reply
Reply #2 on : Tue August 21, 2007, 11:50:50

I've just noticed the title to your article.

"Can a website bringing 'private sellers and buyers' together avoid HIPs?"

We do not, and never have, promoted HIP avoidance.
Why should we when we provide Free HIP quotes and online ordering?

Perhaps you should have investigated the site further before making rash comments.

Posts: 12

Re: Can a website bringing 'private sellers and buyers' together avoid HIPs?
Reply #3 on : Tue August 21, 2007, 14:36:04

If you can sell my house without me spending money on a hip i havent got, sign me up!

siteadmin
Posts: 3

Re: Can a website bringing 'private sellers and buyers' together avoid HIPs?
Reply #4 on : Tue August 21, 2007, 23:59:50

Hi David

Thanks for popping over and explaining your position.

First of all, the simple bit: "Can a website bringing 'private sellers and buyers' together avoid HIPs?"

Yeah... how can a website have a HIP?! Badly phrased! I'll have to change that.

However, the title was used to pose the wider question, hence the word 'website'.

To the main point: As far as I remember, the regulations don't make any distinction as to how a home is marketed, just that if it's publicly marketed, it is subject to the regulations.

I don't have the regs to-hand now - it's late - but I don't recall any clause that defines marketing as that which is conducted within the exclusive domain of estate agents only (or any agent).

I think the sticking point, is the word marketing.

Posts: 12

Re: Can a website bringing 'private sellers and buyers' together avoid HIPs?
Reply #5 on : Wed August 22, 2007, 09:50:25

It appears to me that the question here is whether tickeverybox.com is acting as an estate agent or not. There is no question that a HIP with EPC is not required as clearly the home is being 'marketed' when viewing the definition for marketing in the Housing Act 2004.

Regardless of intent, if D Lawley's comment is anything to go buy, some people at least are (and will be) perceiving the website marketing blurb to mean they do not need a HIP & EPC, when clearly they do. If this is the case, then the information being provided by tickeverybox.com could well be construed as being misleading by enforcing bodies.

Tickeverybox.com appear to be relying on the assumption that they do not need to display details on HIPS and the EPC, because they are not acting as an Estate Agent. If that is the case, then that may well be a correct assumption.

This is the Housing Act 2004 definition of an Estate Agent:-

"150 Acting as estate agent
(1) A person acts as estate agent for the seller of a residential
property if he does anything, in the course of a business in England
and Wales, in pursuance of marketing instructions from the seller.
(2) For this purpose-
"business in England and Wales" means a business carried on
(in whole or in part) from a place in England and Wales; and
"marketing instructions" means instructions to carry out any
activities with a view to-
(a) effecting the introduction to the seller of a person
wishing to buy the property; or
(b) selling the property by auction or tender.
(3) It is immaterial for the purposes of this section whether or not
a person describes himself as an estate agent."

The regs go on to define the 'resonsible person' in relation to who is marketing the property. The responsible person is the one who has to ensure that a HIP & EPC have been commissioned at 'first point of marketing'. Energy ratings are required to be provided with the 'written particulars' once the EPC is available, so any advertising through the site will need to use the tools that tickeverybox.com provide, to amend sale particulars and display EPC energy rating graph.
I believe it is wrong to allow people to think that by using tickeverybox.com services people will be able to avoid having a HIP & EPC. If they do not commission a HIP & EPC and make it available before sale is concluded, they will be breaking the law as a 'private seller' who is acting as the 'responsible person', and onto which the duty falls to comply with relevant sections of the Housing Act and HIP 2007 regs.

Given that the delay of having to have HIP at first point of marketing is short lived (Jan 2008 it reverts back to requiring the HIP/EPC to be available at first point of marketing, rather than just commissioned), I would think user of tickeverybox.com, would be well advised to consult with their solicitors if they think they can avoid a HIP/EPC for the period up to Jan 2008.

Posts: 12

Reply
Reply #6 on : Wed August 22, 2007, 13:45:19

I'm sorry, i still don't get your point.

Nowhere on tickeverybox website do we advise, suggest or advocate HIP avoidance. I have openly voiced my opinion about other businesses and websites that claim to offer 'get-out' options (when actually the don't/can't).

I am perfectly well aware that any kind of formal public marketing constitutes the requirement of a HIP (if applicable). It would be stupid of us to recommend HIP avoidance and then offer sellers the opportunity to purchase a pack through our site!

My original blog post was to merely highlight the fact that agents - who are obliged by the law - do not seem to be displaying energy graphs with their sales particulars, or clearly labelling properties which may have a HIP available.

How you have sidetracked to the 'marketing' argument from my blog confuses me.

Posts: 12

Re: Can websites bringing together 'private sellers and buyers' avoid HIP obligation?
Reply #7 on : Wed August 22, 2007, 18:02:45

Marti:

Excellent post, many thanks for that.

David:

I want to make it absolutely clear that I do not believe that you - or your site - is deliberately advocating an anti-HIPs stance.

This is proving to be an interesting debate, worthy of exploring.

Contrary to my previous comment above, there does seem to be a distinction as to the role of estate agent, as highlighted in Marti's quote. However, the definition of an estate agent is so wide it can be applied to anyone engaged in marketing a property:

'150 Acting as estate agent
(1) A person acts as estate agent for the seller of a residential
property if he does anything, in the course of a business in England
and Wales, in pursuance of marketing instructions from the seller.
... '

'(3)It is immaterial for the purposes of this section whether or not a person describes himself as an estate agent.'

(See link below)

There is quite a lot of legalese surrounding the notion of marketing a property that is spread over several documents, but that is probably the most succinct passage I could find.

Any further comments are welcome.

Here is the link direct to the above Act (Housing Act 2004: Part 5 Home information packs, Section 150):

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=6&NavFrom=2&parentActiveTextDocId=977975&ActiveTextDocId=978188&filesize=1659

Last Edit: August 22, 2007, 18:09:28 by siteadmin

Posts: 12

Can a website bringing 'private sellers and buyers' together avoid HIPs?
Reply #8 on : Thu August 23, 2007, 09:27:59

David: I too want to make it clear that I don't think you are advocating or promoting HIP/EPC avoidance. It seems we are both aware and agreed that currently for 4 bed & shortly for 3 bed (with the rest following not to far behind) a HIP and EPC are currently still required for a Private sale, where no estate agent is acting, but as the home is being marketed, the responsible person (the 'seller') has the legal duty to ensure HIP/EPC is commissioned at point of marketing & subsequently made available.

Anyone acting as a Private seller through tickeverybox.com, would surely be classed as the 'responsible person' in respect to ensuring that HIP/EPC is commissioned & made available.

The comment which tickeverybox.com makes on their site about lack of visible HIP details & EPC graphs in Estate Agents is a very valid one and I think we all now the reasons behind that at present with Estate Agents in general. However by Jan 2008, all the reasons sited on tickeverybox.com for the lack of visibility will be gone. It will be increasingly difficult to not comply with the law and ensure HIP/EPC is available at the right time. Tickeverybox.com also highlights this.

To assist with that, Tickeverybox.com are providing tools to allow the vendor to show that a HIP is available and also publish EPC graph which shows the energy rating of the home (as it appears on the original EPC which was carried out in connection with the property going on the market). I feel this is useful, necessary and wise/helpful for tickeverybox.com to do so.

Yes it is true that tickeverybox.com cannot make the private seller use the tools they provide, and herein lies the danger as I believe the comment by D Lawley suggests. If the Private seller thinks they do not need a HIP for a Private sale but publicly marketed property, or think they can 'get away with it' they are unlikely to use the tools provided. Clearly the answer would be for the Private Seller to take legal advice before doing anything off their own back and falling foul of the law.

I think the question which needs to be answered is "Why did D Lawley think/perceive that they may be able to avoid buying a HIP/EPC if they were to use the services of tickeverybox.com?" Perhaps D Lawley could answer that, or anyone else who perceives that to be the case, after seeing the tickeverybox.com website.

In my opinion the problem stems from this emboldened paragraph on the tickeverybox.com site:-

"Tickeverybox.com has no obligation to display EPC graphs or HIP information because we are a private sales website. However, we recognise the importance of EPCâ€™s, and have included some easy software (punching in 4 numbers!) for private sellers to attach their own graphs. We think we are the first private sale website to provide this function."

Whilst tickeverybox.com may well not have a legal obligation to display HIPS/EPC info (depending on the legal arguements around whether they are acting as an 'estate agent'), the 'Private Seller' does have a legal obligation to have a HIP/EPC commissioned and ensure available for viewing (depending on whether 3, 4 bedroom etc. etc).

In my opinion, I believe that the line "have included some easy software (punching in 4 numbers!) for private sellers to attach their own graphs." is potentially misleading for some people who are not fully aware of their legal obligations. If one was reading this quickly and was not aware of the law and what is required to produce an EPC, I feel it could easily be miscontrued to think that by punching in 4 numbers I could attach my own energy rating graph to 'satisfy' the law.

Yes this is permissable, providing the figures you punch in, come from a bone fide EPC produced by a suitable qualifed energy assessor. I wonder how many people outside of the 'industry' might just think like this, or would certainly offer this as a defence when challenged? I would be interested to read any opinions from people totally unconnected with the industry in any way.

Posts: 12

Reply
Reply #9 on : Thu August 23, 2007, 10:11:43

"A person acts as estate agent for the seller...in pursuance of marketing instructions from the seller."

Private sale sites do not receive contractual instructions from private sellers. Everything a seller does is self-managed and does not involve any personal input by any employee of tickeverybox.

"Tickeverybox.com appear to be relying on the assumption that they do not need to display details on HIPS and the EPC, because they are not acting as an Estate Agent."

We are the only private sale website to provide the tools for private sellers to display EPC graphs and make it known that a HIP is available.

The quetion of whether sites like tickeverybox should be considered as estate agents is not valid. The OFT recognise them as completely different operations and have done so for at least 10yrs.

siteadmin
Posts: 3

Re: Can websites bringing together 'private sellers and buyers' avoid HIP obligation?
Reply #10 on : Thu August 23, 2007, 12:54:12

I assume you must have a binding contract between your site and a home-seller advertising on there?

At the end of the day I think - at best - the site will have a duty to ensure that, come Jan 2008, any property advertised, will have to display the graph.

WRT: OFT - Well, the law has just changed. It seems as though you may well be an estate agent whether you're aware of it or not.

It's worth repeating:

"(1) A person acts as estate agent for the seller of a residential
property if he does anything, in the course of a business in England
and Wales, in pursuance of marketing instructions from the seller."

...

"(3)It is immaterial for the purposes of this section whether or not a person describes himself as an estate agent."

Furthermore, it may be key to note that a seller ceases, by law, to be responsible as soon as marketing is assumed by an estate agent...

In Section 153 - Responsibility of the seller:

"(2)That responsibility ceases when the following conditions are satisfied, namelyâ€”
(a)there is at least one person acting as his estate agent who is responsible for marketing the property..."

I think I know where you are arguing from, David, I just think however, that the position is now on shaky ground... in fact, I think the ground probably doesn't exist anymore.

What is the difference between RightMove and tickeverybox?

Posts: 12

Reply
Reply #11 on : Fri August 24, 2007, 11:21:07

Marti - Thank you for your comments. To try and inform our members about their HIP responsibilities, we have a dedicated HIP page with supporting Q&A, a link to HIP info from the HIP quote page, a reminder when sellers start to list their property and instructions to enter their graph ratings (if applicable) when they get to the relevant section. We think this is sufficient and sensible administration but i thank you for seeking clarification.

Siteadmin - We do not require contracts. Our users come and go without restriction. Unlike agents we do not charge a fee based on the sale.

We have not waited until Jan 08, we are providing it now.

Private sellers using private sale sites are themselves the 'responsible person'.

I wish we were very similar to Rightmove (certainly for revenue and profit!). Rightmove are a portal specifically for estate agents, as is propertyfinder.

They exclude private sale sites as they see them as competition. Indeed the recent Tesco debacle was based on the fact that Tesco are claiming to be a private sale site (technically they are online agents - that's another argument!) but also wanted to display rightmove properties (mainly to suck all its traffic). Other portals cater for private sales and agents; others just for private sales.

Private sellers use private sale sites merely as an advertising portal because we buy into a number of affiliate sites for increased online exposure - exposure they wouldn't normally get with many traditional agents.

At the end of the day its all about providing an alternative to traditional agents. I've been one and i have stitched up vendors with watertight contracts, claimed fees that i didn't earn and gained instructions by expanding the truth. Agents are fee-driven. No sales, no salary. Simple.

I'm confused though as to why an EPC blog is questioning my sites positioning and I'm still disturbed as to why the article piece starts with "breaking the law" and "avoid HIP obligation" when we do neither and i think previous comments have confirmed the same.

I'm all for explosive headlines but not at the expense of my reputation and credibility as a chartered surveyor and detriment to potential business.

Posts: 12

rightmove
Reply #12 on : Fri August 24, 2007, 14:49:34

Just a thought. Check rightmove today. Search for 4 bed homes added in the last 24 hours. See any mention of HIP's or EPC's?

rightmove disclaimer - "The information displayed about this property comprises a property advertisement. Rightmove.co.uk makes no warranty as to the accuracy or completeness of the advertisement or any linked or associated information, and Rightmove has no control over the content. This property advertisement does not constitute property particulars."

They obviously leave the responsibility to the individual agents to display EPC's (agents being the responsible person for HIP purposes).

Click through to individual agents. How many display EPC's? I have found 1 so far. Ironically an internet estate agent!

siteadmin
Posts: 3

Re: Can websites bringing together 'private sellers and buyers' avoid HIP obligation?
Reply #13 on : Fri August 24, 2007, 15:05:25

Oh, absolutely agree, Dave - I raised the subject of the lack of HIP advertising by EAs in local papers on the last podcast... that's why I was interested in your blog-post on the matter.

Their disclaimer is interesting but hasn't that always been there?

As I've intimated, there is currently quite a lot of wriggle-room ATM. The crunch time will be Jan 2008 when the principle of first-point-of-marketing come into force.

PS... The title of this article is a question (which it is), not an accusation ;)

Posts: 12

Avoid HIPS for private sellers?
Reply #14 on : Sun April 13, 2008, 21:45:37

I have just read the 'avoid' HIPS for private sellers post. Quite clearly the seller doesn't pay his money and hopes for the best ih uses any 'help' whatsever.

MY QUESTION

I am baffled as to why no one has asked what the HIPS liability is if one is a private seller with no one attached and said seller, sells to a geniune private buyer. For example, one is part of a close knit community and either directly or by word of mouth a seller and buyer come together. To make this point absolutely clear say I drink in the 'Flying Bottle' and it is known I want to move and one day a friend comes in with his nephew and one thing leads to another and the nephew buys my property. DO I NEED A HIPS? Thank you

Posts: 12

EPC dodgers
Reply #15 on : Wed March 11, 2009, 13:16:53

I would like to highlight appalling business activities displayed by Business Transfer Agents like â€˜Knightsbridge Business Salesâ€™, Bagabusiness and RTA. All the mentioned agents blatantly ignore current EPC (Energy performance Certificate) legislation whilst passing the buck to their clients after they have already paid a heft up-front fee for advertising. They also seem to think that they are exempt from adhering to requirements that all agents are to be registered to an Ombudsman (as of Oct 2008). How can this be allowed?

http://blogs.mirror.co.uk/investigations/2009/01/grief-from-commercial-sales-ag.html

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