OFT guidance on property
sales: compliance with
the CPRs and BPRs
Ian Potter FRICS FARLA (Hon)
Managing Director ARLA
CPRs/BPRs guidance on property sales
● What we will cover
- Introduction to the OFT guidance
- CPRs breaches: effects tests and key concepts
- CPRs breaches: some examples
- CPRs: misleading omissions and 'material information‘
- The BPRs
- Complying with the regulations: some suggestions
- Q&As
CPRs/BPRs guidance on property sales
● The guidance is on
- the Consumer Protection from Unfair Trading Regulations
2008 (CPRs), and
- the Business Protection from Misleading Advertising
Regulations 2008 (BPRs)
● It is aimed at ‘property sales businesses’
- e.g. estate agents, buyers' agents, internet property
retailers, property auctioneers, property developers that
market and sell their own developments, and companies
that buy up 'below market value' property as an investment
opportunity
CPRs/BPRs guidance on property sales
● The guidance sets out
- an overview of the regulations and the key concepts
- examples of the kinds of unfair trading practices specific to
property sales that may breach the regulations
- steps that property sales businesses may wish to take to
help them comply with the law
- what happens if businesses don’t comply with the
regulations
CPRs/BPRs guidance on property sales
CPRs breaches
Misleading actions
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
CPRs/BPRs guidance on property sales
CPRs breaches
The effects ‘tests’
Misleading actions
But only where they cause,
or are likely to cause, the
average consumer to take
a different transactional
decision
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
CPRs/BPRs guidance on property sales
CPRs breaches
The effects ‘tests’
Misleading actions
But only where they cause,
or are likely to cause, the
average consumer to take
a different transactional
decision
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
But only where it materially
distorts, or is likely to
materially distort, the
economic behaviour of the
average consumer
CPRs/BPRs guidance on property sales
Key CPRs concepts
‘consumer’
‘commercial practice’
’transactional decision‘
‘average consumer’
CPRs/BPRs guidance on property sales
Key CPRs concepts
‘consumer’
‘commercial practice’
‘transactional decision’
‘average consumer’
An individual who is acting for
purposes outside their
business
So, providing they are acting
for purposes outside their
business, would include:
Client 
Prospective client 
Actual buyer 
Prospective buyer 
Potential viewer 
CPRs/BPRs guidance on property sales
Key CPRs concepts
‘consumer’
‘commercial practice’
‘transactional decision’
‘average consumer’
Basically, the whole range of
your business activities that
may affect consumers
For example, when you:
- advertise your services
- offer pre-agreement advice
to a client
- describe property for sale
- negotiate and make sales
- handle complaints about your
conduct
CPRs/BPRs guidance on property sales
Key CPRs concepts
‘consumer’
‘commercial practice’
‘transactional decision’
‘average consumer’
Not just the decision whether
or not to buy or sell
Includes the seller’s decisions
to sign or extend an
agreement with you, accept an
offer, or sell their property
Includes the buyer’s decisions
to view a property, take up an
offer of services, instruct a
conveyancer or surveyor, or
buy a property
CPRs/BPRs guidance on property sales
Key CPRs concepts
‘consumer’
‘commercial practice’
‘transactional decision‘
’average consumer’
Not necessarily an actual
consumer you have dealt with
or are dealing with. Not a
statistically average consumer
either
Rather, someone who is
reasonably well-informed,
reasonably observant and
circumspect
Allowance for vulnerable and
targeted groups
CPRs/BPRs guidance on property sales
CPRs breaches
For example
Misleading actions
Leading a potential client to
believe that you have buyers
lined up for their sort of
property when this is not
true
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
Misdescribing the main
characteristics of property
that you are marketing
CPRs/BPRs guidance on property sales
CPRs breaches
For example
Misleading actions
Failing to adequately draw
to a prospective client's
attention unusual or
surprising terms in your
terms and conditions
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
Failing to disclose key
information about the
property to prospective
viewers
CPRs/BPRs guidance on property sales
CPRs breaches
For example
Misleading actions
Applying undue pressure on
a consumer to use
associated services, for
example to take out a
mortgage through your inhouse mortgage advisor or
to use a particular firm of
solicitors or licensed
conveyancers
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
CPRs/BPRs guidance on property sales
CPRs breaches
For example
Misleading actions
Displaying the logo of an
ombudsman, trade body or
enforcer when not
authorised to do so, or
claiming falsely to be a
member of a professional
body or an approved
redress scheme
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
CPRs/BPRs guidance on property sales
CPRs breaches
For example
Misleading actions
Training staff to use scripts
and/or techniques that are
intended to mislead
consumers
Misleading omissions
Aggressive practices
Banned practices
Lack of professional
diligence
Not carrying out reasonable
checks on the accuracy and
truthfulness of information
that you use in marketing
CPRs/BPRs guidance on property sales
Misleading omissions
i.e. information you have
- left out
- hidden
- not made clear or
- not given in good time
But not any information, only
‘material information’
CPRs/BPRs guidance on property sales
Misleading omissions
i.e. information you have
- left out
- hidden
- not made clear or
- not given in good time
But not any information, only
‘material information’
Material information means
the information
‘which the average
consumer needs
according to the
context
to take an informed
transactional decision’
CPRs/BPRs guidance on property sales
Misleading omissions
Material information
which the average
consumer needs
according to the
context
to take an informed
transactional decision
Limitations of the way the
commercial practice is
communicated (e.g. there’s not
much space in a newspaper
advert)
Features and circumstances of
your commercial practice,
including what is expected of
you (given your services)
Factual context (e.g. what you
actually know)
CPRs/BPRs guidance on property sales
BPRs breaches
Misleading marketing
Unfair comparisons
CPRs/BPRs guidance on property sales
BPRs breaches
The benchmark ‘test’
Misleading marketing
Where it deceives, or is
likely to deceive, the
businesses its addresses or
reaches AND, as a result:
- affects their economic
behaviour, or
- injures a competitor
Unfair comparisons
CPRs/BPRs guidance on property sales
BPRs breaches
Misleading marketing
Unfair comparisons
A set of conditions that must
be met and which permit
comparative advertising
CPRs/BPRs guidance on property sales
● Steps that will help you to comply (1)
- If you treat your consumers, business customers and
competitors fairly, you are unlikely to breach the
regulations
- Read our guidance:
 consider how the regulations apply to you
 if necessary, make changes to your practices
 ensure that your staff understand the regulations and
comply with them
- For further advice, contact your local authority TSS, your
professional body, or seek independent legal advice
CPRs/BPRs guidance on property sales
● Steps that will help you to comply (2)
- Take care gathering and presenting the information that
you will use to advertise your services and market property
- Have systems and safeguards in place to ensure that your
marketing information is accurate, balanced and does not
leave out material facts
- When you see or hear something that puts you on notice
that there might be a problem, take appropriate steps to
establish the facts – e.g. ask questions, carry out own
checks and/or consult official sources
CPRs/BPRs guidance on property sales
● Steps that will help you to comply (3)
- Act promptly to correct or update marketing and to pass on
information whenever new facts become available
- Where you’ve exhausted the steps you can reasonably be
expected to take, be open about any remaining gaps in
your knowledge
- Avoid pressurising your consumers to act quickly to put in
an offer, raise their price, skip the survey and finalise the
sale and/or exchange contracts
Contrary information
● Secluded garden
● Peaceful area
● Views of surrounding countryside
● Off-street parking
Conditions statements
● Immaculate
● Recently decorated
● Central heating
● Refurbished
False impressions
● Interest in the property
● Exaggerated feedback
● Cash buyer
● False offers
Acting aggressively
● Persistency
● Pressurising to act quickly
● Pursuing commission
● Intimidation
Breach of professional diligence
● Falsely listing properties as sold
● Leaving properties on website
● Failure to provide details on EPC/Green Deal
Systems and safeguards
● Audit trails
● Staff training
● Contemporaneous notes
● Checks
● Due diligence
Q&A