If an Estate Agent has been banned under the Estate Agent Act 1979

[newperson13]

If an Estate Agent has been banned under the Estate Agent Act 1979 and is on the National estate Agent Register as prohibited can they still trade ie by putting the company under the name of someone else like their spouse?. I think I know someone who is doing this

[efpom]

https://www.nationaltradingstandards...ithin-the-law/

[des8]

Depends on the exact wording of the .prohibition order

[newperson13]

this is what I found out from a website , I have removed the persons name, its says PROHIBITED against their name on the National Estate Register but not any more details. From below is says they are banned from estate agent work but clearly they are working at and running the estate agent, even listed as director on their company website but not actually registered as the director when checking on companies house website. Also if the person is banned does it mean any contracts signed with that person could potentially be void??

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The OFT has issued a prohibition order banning a property agent from estate agency work as a result of his convictions, including his convictions for offences of fraud.

xxx has been banned from carrying on estate agency work after he was prosecuted by xx Trading Standards Service and convicted of multiple offences under the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008 and the Fraud Act 2006 by the xx Magistrates’ Court on21 January 2011.

Following xx convictions, the OFT launched its own investigation under the Estate Agents Act 1979.

The OFT determined that xx is unfit to carry on estate agency work.

Assistant Director in the OFT’s Goods and Consumer Group said:These were serious offences and a reminder to all estate agents that by engaging in acts of fraud or other dishonesty or by committing offences under the Consumer Protection from Unfair Trading Regulations 2008,they are likely to face a ban from the profession.The OFT, working together with the Trading Standards Service, wil lcontinue to take tough action against estate agents who flout the law

[des8]

"Also if the person is banned does it mean any contracts signed with that person could potentially be void??"

Possibly, but depends on the contract.
For example a contract to purchase a car from him would not, but a contract to supply him with services as an estate agent may be.

[newperson13]

Thanks des8 for the reply. The contract was to sell a house. The relevant regulatory authorities have been advised anyway but just in case they cannot help was just asking in case i need to get a solicitor involved but hopefully will not need to. Cannot believe though someone who is banned still is able to trade

[des8]

So you have an agency contract with an estate agency ltd company.
The company website lists A as a director, but he is not listed at companies house.
This man A has been banned from acting as an estate agent by the OFT.

To rescind your contract I think you would have to show you were induced to enter into that contract by the misrepresentation that A was a bona fide estate agent and that if you had known he was banned you would not have contracted with that agency

Tagging R0b who has more in depth knowledge of contract law

[R0b]

The general position is, if the person who signed a contract lacks the requisite authority the contract may be unenforceable. Whether that person has the requisite authority is governed by the law of agency and relevant provisions of the Companies Act 2006. Normally, if the person had express or apparent authority to sign the contract, then it it would be an enforceable contract, and the burden of proof lies with the person alleging no authority.

That said, it is possible that you could argue the contract is invalid on the basis that it was signed by someone holding themselves out as a director but is not in factor a director (though it might be said the person is a de-facto director, that is someone who acts like one but isn't formally appointed). Adding to that, assuming this director is not the owner of the estate agency, you could write to the one in charge and point out that this person has been banned from working as an estate agent and provide them with the evidence. Note however, the illegality argument in reality is used as a defence and not as a sword.

AS Des has suggested, this could be a misrepresentation and if the contract was signed within the last 90 days then the avenue to go down would be the Consumer Protection from Unfair Trading Regulations 2008. It might be true that this person's formal job title incorporates the word 'director' but I think your argument will be that you did so on the basis that he was a bona fide agent. Had you known about the director's past history of fraud, it was unlikely that you would have continued with the contract. Your remedy would be to unwind the contract.

Same potential argument could be made under Section 50 of the Consumer Rights Act 2015, though that depends on whether this person actually has the title of director and if there was anything else said that made you think the person had authority to sign the contract and/or other statements made in the course of discussions.

Afraid the comments above are pretty generic so you would need to look into them more carefully and see whether they fit with your current situation.

I think the starting point would be to pen a letter to the owner of the estate agency, point out the anomalies, that the matter has been reported to the relevant authorities and get them to agree to cancelling the contract without penalty. Failing that, you could look to terminating the contract based on the above points though I think the Consumer Protection from Unfair Trading Regulations would be your best argument.

[newperson13]

Thanks Rob
this contract was for selling a property which happened last year and the fees charged were not right as far as i am concerned but i have referred it to the ombudsman . Not sure if there is any point writing to the registered company director as its the banned persons wife. Will see what the ombudsman says first

[nextguy1234]

what is the likely punishment for someone who is still carrying on with estate agent work despite there being a PROHIBITION order against them , I cannot see any news articles about a case like this before. I can only see stories about people being banned but not what happens if they carry on trading after being prohibited. any ideas? I would expect a hefty fine and jail sentence?

[efpom]

3.(8)A person who fails without reasonable excuse to comply with an order of the [F15lead enforcement authority] under this section shall be liable on conviction on indictment or on summary conviction to a fine which on summary conviction shall not exceed the statutory maximum.

Estate Agents Act 1979

(conviction on indictment - fine is unlimited)

[nextguy1234]

thanks efpom hopes its a large fine then for 5+yrs of working whilst prohibited.

[2222]

Thanks Rob
this contract was for selling a property which happened last year and the fees charged were not right as far as i am concerned but i have referred it to the ombudsman . Not sure if there is any point writing to the registered company director as its the banned persons wife. Will see what the ombudsman says first

I think the argument that the 'director' was not really a director falls pretty flat. Likewise, an argument that he acted without due authority of the company falls flat, as clearly his wife authorised him to do anything and everything to do with her company.

However, there is a strong argument that the entire contract was unenforceable. It promised the services of this man to sell your house, whilst he was banned from doing so, ie a criminal act. The whole contract is surely no more enforceable than a contract to go out and mug an old lady. Obviously, if you haven't paid the commission, don't!

What concerns me, though, is that very likely the commission was paid when your house sold? It's commonplace for solicitors to pay the estate agency direct from the sales proceeds. If so, your chances of getting the money back from a limited company run by a crook are practically zero. The ombudsman do not have a redress fund, as far as I know, so all they can do is order the limited company to pay you. In the meantime, the company will simply be wound up.

There might be some recovery under the POCA, just possibly? Anyone know about this?