The withdrawal of the material information guidance published by National Trading Standards Estate and Letting Agency Team (NTSELAT) appears to have taken much of the industry by surprise. Law Society of England and Wales vice president Mark Evans the withdrawal has left ‘consumers, conveyancers and estate agents in the dark’ and Sheila Kumar, chief executive of the Council for Licensed Conveyancers (CLC) described the withdrawal as ‘regrettable’ calling on the Home Buying and Selling Council (HBSC) and the Digital Property Market Steering Group to step in a ‘take action.’
Trading Standards themselves have been tight lipped on the situation; a note on their website where the guidance was once positioned says
“The development of guidance on material information was based on supporting estate and letting agents to meet their legal obligations under Consumer Protection from Unfair Trading Regulations 2008. These regulations have since been superseded and replaced by the new Digital Markets, Competition and Consumers Act 2024. In light of this, the NTS guidance on material information for estate agents and letting agents has been withdrawn.”
Many conveyancers may be forgiven for thinking the withdrawal of the guidance marks a backward step in the implementation of material and up front information; but this isn’t the case say both the Open Property Data Association (OPDA) and the Conveyancing Association (CA).
For conveyancers, it is important to be absolutely clear that the fundamentals have not changed says Beth Rudolf, Director of Delivery at the CA in her regular column for Today’s Conveyancer. The withdrawal of guidance based on legislation which has since been superseded ‘reflects a shift in legislative footing’ she adds. The Digital Markets, Competition and Consumers Act 2024 came into effect from 7th April 2025, replacing the Consumer Protection from Unfair Trading Regulations 2008, known colloquially as CPRs. There has also been a transition of ownership of the responsibility for policing compliance over to the Competitions and Markets Authority (CMA).
The OPDA have said the same with the change set to move compliance away from being advisory, to being a requirement under statute.
“With the introduction of the DMCC Act, these regulations (CPRs) have been superseded, and the guidance has been withdrawn accordingly. This shift moves the industry from relying on advisory documents to adhering to statutory obligations, providing clearer legal expectations for all parties involved”
said Maria Harris, Chair of the OPDA.
One of the main criticisms of the implementation of material information was the inability to effectively police it. And with the CMA already admitting it would focus on the most ‘egregious’ harms it seems unlikely it will have the time to properly look at this issue in the short term despite the new legislation being stricter; with potential penalties for non-compliance being up to £300k or 10% of global turnover.
But that doesn’t mean material information is no longer required. Indeed the DMCC ‘enhances consumer trust and promotes fairness in the market’ says Harris through the mandating of disclosure of material information. Adds Rudolf,
Title information and searches are still required, the triage of property condition is still essential, and the TA6 form continues to be a key component of the conveyancing process. The MI form, or alternatively the BASPI or Property Information Questionnaire should still be used to gather the information needed to help agents identify what constitutes MI for each property so that it can be accurately and transparently included in marketing materials.
Writing in the estate agency press, trainer Mike Day, of Integra Property Services, suggests it could be argued the DMCC extends the responsibility of agents to include Stamp Duty and HMLR fees in their pricing. The Act makes it the responsibility of service providers to include ‘mandatory charges’ in the headline price, therefore, says Day,
If, in addition to paying the price stated in the invitation to purchase (the headline price), the consumer cannot purchase a product without the payment of any fee, tax, charge or other payment (‘charge’ in short), then that charge is mandatory.
He adds for estate agents this has for some time included the need to be clear about VAT and could now be interpreted as including stamp duty and land registration fees.
“Whilst these may vary based on the position of the consumer (stamp duty for a first time buyer or surcharges for a buyer of a second property for example) they are, in my opinion, clearly, material pricing information which means that they should be revealed when an agent is making an invitation to purchase by marketing a property.”
The withdrawal of the property specific guidance has been welcomed by Property Lawyers Alliance (PLA) who have criticised the failure of the Law Society to take part in the formal consultation on the latest iteration of the CMA’s ‘General guidance on Unfair Commercial Practices’; a consultation the PLA responded to saying
“PLA considers that it would be damaging to consumers and anti-competitive, for the panoply of existing statutory and common law protections for buyers of property, to be duplicated, undermined or contradicted, either by the Act or by any future guidance published by the CMA.
The PLA add ‘Land’ is not a ‘product’ and sought sector-specific examples of how the guidance could/would be enforced in the sale of land; a query the CMA said it would not, or could not, provide such examples.
Ultimately proponents of material information say the withdrawal of the guidance must not be viewed as a step backwards, but rather a ‘shift in the regulatory landscape’ adding the work being done to introduce information to home buyers at an earlier stage in the transaction is still ‘valid (and) relevant’ and ‘conveyancers can continue using the systems they have in place to gather and share information, ensuring the necessary MI is available from the outset.’
“Now is the time to reaffirm best practice, strengthen collaboration, and continue to ensure consumers are fully informed. The responsibility has not gone away, and therefore neither should our commitment to delivering it.”
concludes Rudolf.
“The withdrawal of the NTSELAT guidance should not be viewed as a setback but rather as a step forward in formalising and strengthening the provision of material information in property transactions. By embracing the DMCC Act, the property industry can enhance transparency, foster consumer confidence, and ensure a fairer marketplace for all.”
add Harris.
4 responses
As the aftershocks continue following last week’s material information (MI) earthquake, is it not time for various groups and associations to move on concerning MI?
Legal Position
In November 2023, the National Trading Standards Estate and Letting Agency Team (NTSELAT) published a now obsolete guidance (Guidance) that aimed, in its view, to provide consumers with “material information” (MI) in property listings to ensure consumers could make an informed decision whether to buy or rent a property. NTSELAT intended the Guidance to ‘assist’ agents with complying with the Consumer Protection from Unfair Trading Regulations (2008) (CPRs). However, it was ultra vires at law. The Guidance had misinterpreted the source legislation.
Unlike the Law Society and the Conveyancing Association The Property Lawyers Alliance (PLA) engaged in respect of the formal consultation on the draft guidance published on the 11th December 2024 by The Competition and Markets Authority (CMA) concerning ‘protections from unfair commercial practices (UCPs) set out in the Competition and Markets Digital Markets, Competition and Consumers Act 2024 (Act). That consultation has expired, so the latest guidance concerning UCPs stands. No attempt was made by the CMA to replicate the contents of the Guidance. MI is history.
TA6 and MI
The TA6 controversy has always been closely linked with the concept of MI. One issue cannot be discussed without the other. So why does the Law Society following last week’s MI’s collapse, still say it will continue with its ‘TA6 Implementation Journey’?
The Real Reasons for Conveyancing Delays
The major obstacles to conveyancing reform are as follows:
· Draconian AML controls on lawyers
· Extra due diligence imposed on lawyers because of ‘bad’ legislation
· Poor standards in ‘conveyancing factories’
· Extra due diligence because of Parliament’s over-legislating.’
· A still dysfunctional Land Registry
· Underperforming local authorities
· Prevarication by Lenders
MI has always been a red herring, dragged across the paths of policymakers. So, is it not time for an alliance of the technically illiterate to let the lawyers practice property law free from distractions?
· Extra due diligence because of Parliament’s over-legislating.’ – You can add in under legislating also. Management Companies, developers etc. It should be a legal requirement of a developer to have a section 38 and section 104 agreement and bond in place as a part of planning controls. Planning conditions for developments should not be enforceable against individual properties (unless there is something specific) Management Companies should be regulated – Turnaround times on packs, limiting the amount they can charge for packs, limiting the amount they can charge as a service charge, being properly accountable to residents. It would not take the government 5 mins to knock up legislation to protect Leaseholders – Excluding long leasehold from Housing Act 1988 issues, standardising ground rent review provisions. Bringing an end to draconian penalties under Rent Charge provisions.
30 years ago, did Conveyancers have to deal with; Management Companies, lack of Section 38 and Section 104 Agreements, mountains of planning conditions on new developments? No there was a simple 6-10 page conveyance. Now we have 30-50 PDFS in a site pack and a 30 page TP1.
There is also some seriously poor Conveyancing going on when it comes to Management Companies and new build properties. Big conveyancing firms are getting into bed with developers who treat the developer more of a client than their actual clients and lenders. Having to deal with the aftermath of some of this shoddy work on re-sales is awful at times especially when clients are selling 2, 3, 4 years after the build was completed. I’ve come across too many occasions where NHBC has not yet been put on risk for example and building control completion certificates not to mention electrical and gas safe certificates have not been followed through.
As a conveyancer and compliance officer the withdrawal of MI guidance is just another interruption out of the way. I don’t know one conveyancer who is bothered.
I don’t know one estate agent that has been bothered with it either!