Commentary on Sections Part 5 - Home Information Packs Section 159: Other duties of person acting as estate agent
344.This section imposes a separate duty that only applies where a property is being marketed by an estate agent in a way that is too limited to trigger the other home information pack duties.
345.The duty under this section will apply in cases where, when the estate agent undertakes the marketing activity (the "qualifying action"), the property is either not on the market at all, or is on the market but the agent is not a responsible person within the meaning of the Act.
346.So, for example, a person acting as estate agent who approaches a few buyers directly but does not market the property to a section of the public would be subject to this duty.
347.The duty imposed by this section on the estate agent is a duty to have a copy of the home information pack available when "qualifying action" is taken by him or is taken on his behalf. Subsection (3) defines "qualifying action" as action taken “with the intention of marketing the property” which communicates that the property is or may become available for sale but which does not put the property on the market or make public that it is on the market.
348.An estate agent is not in breach of the duty if, for example, he or she tells a spouse or colleague that a particular property is going on the market. This would not be a "qualifying action" within the meaning of the Part, provided that the communication was not itself aimed at marketing the property. Another example is where an estate agent is seen at a property that is not yet on the market and asked whether it is up for sale. If the estate agent were to answer, truthfully, "not yet but it will be as soon as the home information pack is ready" that would not be a "qualifying action" either. The home information pack duties are only triggered where any communications are part of a direct and intentional attempt to market the property in question.
349.Where the provisions of this section do apply, and an estate agent provides a copy of a document purporting to be from the home information pack for the property, it is his duty to ensure that it complies with any regulations made under section 163 and is an authentic copy.