Developers, estate agents and property lawyers should be on their guard when marketing or describing property for sale. More now than ever, you must pay careful attention to what is said about a property, as well as what is not said about a property.

On 1 October 2013, the Property Misdescriptions Act 1991 was repealed and reliance is now placed on the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Markets Regulations 2008 (the "Regulations").

Those in the industry will be familiar with the Property Misdescriptions Act (PMA) which made it a criminal offence to make false or misleading statements about property offered for sale in the course of estate agency business and property development.

The PMA prohibited false and misleading statements about matters such as:

(a) aspect, view, outlook, environment;

(b) accommodation, measurement, sizes; and / or

(c) physical or structural characteristics, construction or condition.

The PMA offences covered "property description" only. The new Regulations have wider application and there is a general prohibition against unfair commercial practices. They also cover all commercial statements, practices, services or advertisements provided to potential clients. There is no need for a completed deal to actually have taken place.

More importantly, the Regulations cover what is omitted from a description, which includes misleading actions, aggressive commercial practices and general omissions. Professional advisers must ensure that any relevant facts that would allow a potential client to make an informed decision are brought to the prospective purchaser's attention.

Whilst the Regulations may be "new" to many people, they have actually been in existence for five years. They are still relatively unknown in the property world. Interestingly, they apply not just to developers, estate agents and solicitors, but to any commercial practices regardless of sector.

A criminal conviction under the Regulations does not provide a civil remedy to an aggrieved purchaser (i.e. a contract to purchase a "mis-sold" property would not be void), but such a conviction could be used as evidence in civil proceedings to prove a person committed an offence.

The advice that we give to professionals is to make sure your staff are trained up on the impact of the Regulations and make sure you carry out a rigorous re-assessment of current sales practices. Persons found guilty under the Regulations face an unlimited fine and / or imprisonment for up to two years. Not something to be taken lightly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.