As part of the transition to the new Digital Markets, Competition and Consumers Act 2024 (DMCC) which supersedes the Consumer Protection from Unfair Trading Regulations, the National Trading Standards Estate and Letting Agency Team (NTSELAT) have announced it is withdrawing the Material Information Guidance it published in 2022 and 2023.
Effective 8th May 2025, the guidance, which was split into Part A, B and C, is being withdrawn but the duty to provide ‘material information; information is not, with the responsibility for enforcement largely transferring to the Competitions and Markets Authority.
The Competition and Markets Authority has so far published the following guidance.
- General guidance on Unfair Commercial Practices
- What businesses need to know about unfair commercial practices
- Guidance on the CMAs approach to consumer protection
A message on the webpage which previously hosted the NTSELAT guidance now 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“These regulations have since been superseded and replaced by the new Digital Markets, Competition and Consumers Act 2024. In light of this, the guidance on material information for estate agents and letting agents has been withdrawn.”
How this will impact the development of the new TA6 is yet to be seen. The output of the consultation, launched in response to the furore over the release of the fifth iteration of the property protocol form, revealed a two form approach would be introduced in March 2025 which would supersede the existing fourth and fifth editions. An updated TA6 is to be published which is to be an improved version of the existing fourth edition say the Law Society; and a new material information form which would not be mandatory for CQS firms but can be used by conveyancers if they choose to accept instructions by sellers before they list their property, aiming to gather material information from sellers.
It appears the withdrawal of the has caught many on the hop including the Law Society. In a statement provided to Today’s Conveyancer Law Society of England and Wales vice president Mark Evans said:
“NTSELAT have left consumers, conveyancers and estate agents in the dark by the immediate withdrawal of the material information guidance issued in November 2023. We are urgently seeking further clarification on the information that should be provided in accordance with the Digital Markets, Competition and Consumers Act 2024.”
Sheila Kumar, chief executive of the Council for Licensed Conveyancers (CLC) described the withdrawal as ‘regrettable’ adding it was a ‘backward step’ in providing information to potential home buyers that would help them make an informed decision.
“Until such time as the CMA or a future regulator of estate agents issues rules or guidance, we hope that the sector will continue its progress so far in adopting the approach set by NTS. Perhaps the Home Buying and Selling Council and the Digital Property Market Steering Group could take action here, because more timely and accurate information is vital to delivering faster and more certain transactions that meet the needs of home buyers better.”
Speaking in the estate agency press Nathan Emerson, CEO of estate agency membership body Propertymark, said
It is essential that all agents are aware of this crucial announcement and how it fundamentally affects their business and operations. While it’s right to consider there will always be progression within the sector, there has been much time invested in ensuring compliance across the industry regarding Material Information, for it to become superseded by new legislation in less than two years and with limited sector guidance for both consumers and practitioners to rely on, this could cause considerable confusion.”
Lesley Horton, interim Ombudsman, The Property Ombudsman, added:
“Whilst the guidance has been withdrawn, we champion the principle of giving consumers and agents support in understanding what material information should be disclosed upfront. Our enquiry and casework data tells us that agents will need guidance to help them understand what is and what is not material information. We remain committed to working with National Trading Standard and industry stakeholder in this respect. In the interim, our experienced decision makers will continue to make fair and reasonable decisions on a case-by-case basis using our Codes as the standard of professional agency practice”
2 responses
The Law Society should have taken part in the formal consultation on the latest iteration of the CMA’s ‘General guidance on Unfair Commercial Practices’
In contrast, the Property Lawyers Alliance took part and pointed out to the CMA the many problems caused by law and practice and the deeply flawed MI Guidance issued by NTSELAT.
Estate agents do not want to be ‘quasi-lawyers’ and so largely boycotted MI.
This unwanted, ill-conceived intervention into conveyancing should never have taken place for many reasons.
As submitted by the PLA to the CMA :
“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 legal requirements have not changed, the new law still requires that Material Information appears on the advertisement of a property.
The guidance that helped identify the minimum requirements needs to be updated to reflect the CMA’s powers to enforce, as well as to tighten up on the wording issues identified by agents as making it difficult to comply.
Conveyancing lawyers still have the opportunity to work with estate agents to gather all title, searches and seller
information upfront and surveyors and specialts advisers helping to identify any phisical issues that would impact the average consumer for example damp. Once the Material Information is identified the seller has the option to solve any issues identified or price the property accordingly.
What is key is to ensure that that is made clear to the seller, buyer or lender who has the speciliast knowledge and expertise to advise them (whether that is the conveyancing lawyer, surveyor, valuer or specialist adviser), to avoud scope creep, and the DPSMG hope to deliver that through Phase 2 of the Digital Property Information Protocol which will be consulted on across industry.
The good news is that the feedback from the industry pilots has been so good that the collaboration of the estate agent, conveyancing lawyer and property condition speciliast has become business as usual for those involved in the pilots.