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Virtual Viewings and Consumer Protection29th May 2020 Commercial Litigation
There has been renewed interest in virtual viewings of property to rent or buy during the lockdown. It is actually quite likely that these will be used longer term as the guidance on viewings after the re-opening of letting and estate agents encourages agents to pre-qualify applicants to some degree. A virtual viewing is a useful part of that checking process by letting them get a flavour of the property without a full physical viewing. In fact, it seems likely that virtual viewings will be more common generally as agents seek to limit costs longer term by cutting out wasted viewings from people whose interest is uncertain.
However, it is important to remember that virtual viewings are, like all property viewings, covered by the Consumer Protection From Unfair Trading Regulations (the “CPRs”). The TPO and ARLA have obtained assured advice from Warwick Trading Standards on virtual viewings and have made this available.
In fact, there is nothing terribly new in all this. The CPRs have taken the place of the old Property Misdescriptions Act and apply to all information given about a property for rental or sale, whether in an advert, on property particulars, on a property portal, or in a viewing – virtual or face to face. If any information gives a misleading impression or information which a reasonable person would expect to obtain is left out, then there is a breach of the CPRs if that would cause a person to make a transactional decision. Contrary to popular belief a transactional decision is not a decision to rent or buy and so it is not ok if all the information is made available eventually. If an advert or particulars are misleading and that encourages a consumer to go on a viewing that is still a breach of the CPRs. If there is a breach then that is a criminal offence and also allows a purchaser or tenant to claim damages. For tenants, it also allows them to unwind the transaction and escape the tenancy, in some cases with the return of rent paid to date.
Virtual viewings are a particular risk factor because the main problem from the CPRs perspective has always been photographs. So, it is not uncommon for photos to be taken from advantageous angles or touched up to improve visibility. However, this is sometimes taken too far and all pictures are taken to hide clearly negative features or retouching is used to remove unsightly items such as power lines and other material issues. The same practice can all too easily creep into a virtual viewing.
So, it is important that a virtual viewing offers a fair and balanced assessment of the property, including the negative aspects. If vendors are making these videos themselves on a pre-recorded basis then they need to be advised of the need to show everything, including the less desirable aspects. Virtual viewings should also contain clear disclaimers as to how accurate they are and that a full viewing is desirable. There should also be information as to the date on which the recording was made.
Agents should look to update their terms of business to ensure they are full indemnified against badly shot virtual viewings and that they are getting landlords and vendors to confirm the accuracy of them in writing as they would normally do with property particulars.
However, these points should be applicable in a more general sense and the same care that is being urged for virtual viewings should be applied to ensuring the accuracy of all property advertising. For an agent who is not dealing with this effectively the consequences can be severe as the criminal penalties are substantial and can be attached to individual directors and managers as well as to the business as a whole.