Buying and selling property in Scotland has traditionally been based on the premise that you should 'let the buyer beware' - caveat emptor - with the onus being on the purchaser to satisfy themselves on the condition of a property. This central tenet of residential property law has been dealt something of a blow recently, due to the Consumer Protection from Unfair Trading Regulations 2008. Almost by stealth, the Consumer Protection Regulations have replaced the previous legislation (the Property Misdescriptions Act 1991) and now apply to both property sales and lettings. So should sellers beware?

The Regulations require staff who interact with a potential viewer or purchaser of a property to inform that person at the earliest opportunity of any material factor that would affect their 'transactional decision'. In other words, customers should be told about anything that would put the average consumer off viewing or purchasing the property as soon as possible (most likely when that person is in touch to arrange a viewing of the property).

With the new Consumer Protection Regulations being in their infancy, there is currently a lack of clarity as to what 'material factors' should be disclosed to consumers within the property market. There would certainly be a strong case for it to be disclosed to a potential viewer that there had recently been a murder within the property, but what about if the current occupant has complained of noisy neighbours in the past? Should interested individuals be informed that the property lies beneath a flight path?

Unlike the 1991 Act, the Regulations apply not only to estate and letting agents but to all consumer-facing sales organisations. Whether or not property purchasers (who will be represented by a solicitor able to offer professional guidance on the property in question) should be treated in the same way as purchasers of secondhand cars is a legitimate question. However, like it or lump it, it is necessary for the property market to take heed of the Regulations. With the penalty for non-compliance being an unlimited fine or even a prison sentence it will be interesting to see what conduct is construed as being a breach of the Regulations in the coming years.

If you are looking for assistance with marketing and selling your property our residential property department would be delighted to help.