Monday, November 25, 2024
1. The Parties
1.1 The Property Ombudsman (TPO) Scheme provides for the independent and impartial resolution of disputes between property professionals and consumers.
1.2 Property Redress is a consumer redress scheme for the property industry.
1.3 Together, these organisations will be referred to as “the Schemes” in this agreement.
2. The Purpose of this MOU
2.1 The purpose of this MOU is to ensure that, where relevant and appropriate, collaborative working practices are adopted to ensure that consumer interests are maintained.
3. Terms of Reference
3.1 The Schemes recognise each other’s Terms of Reference. These are published on the Schemes’ respective websites and are updated from time to time.
4. Codes of Practice
4.1 Members of The Property Ombudsman have agreed to adhere to the appropriate Code of Practice. Registered Firms have agreed to deliver services in line with best practise. Both Registered Firms and Members agree to adhere to legal and regulatory obligations.
4.2 When making its decision, Property Redress takes into account codes of practice, and legal or regulatory obligations relating to the work a Member undertakes and also any Code of Practice that a Member has voluntarily entered into as a result of its membership of another organisation.
5. Provision of Information
5.1 The Schemes may exchange information in circumstances which will benefit a complainant or is in the public interest.
5.2 The exchange of information is subject to statutory and legal restrictions including Data Protection principles.
5.3 Nothing in this MoU shall prevent the Schemes from exchanging non-confidential information or data.
6. Information to be Exchanged
6.1 The Schemes have agreed to exchange information in the following circumstances:
6.2 The Schemes will provide information where a Member fails to comply with an award or direction within stipulated timeframes.
6.3 In these circumstances, the following information will be provided to the Scheme which has not made the decision:
6.4 Unless exceptional circumstances apply, information about non-compliance with a decision will not be shared until the Scheme’s own compliance and/or disciplinary process has been instigated.
6.6 There may be other circumstances, in addition to non-compliance with an award or direction, where a Scheme decides to terminate membership. In such circumstances, the Scheme which has made the decision may provide the following information to the other Scheme:
6.7 In providing information in these circumstances, the Scheme who has made the decision will have due regard to confidentiality, commercial sensitivity, and data protection provisions.
6.8 It may be appropriate to share information about on-going cases, for example, in those matters that relate to commission fee entitlement. In such circumstances, the Schemes will endeavour to share information about the case to the extent in which it is in the consumer’s interest, and which assists in the effective resolution of the dispute.
6.9 In providing information in these circumstances, the Scheme who has made the decision will have due regard to confidentiality and data protection provisions.
6.10 The Schemes recognise that it is contrary to the interests of consumers for individuals to form, re-form, and dissolve companies to avoid legal and regulatory obligations. The Schemes may exchange information about the ownership, control, or management arrangements of Members where it is in the public interest.
6.11 There may be circumstances in which is appropriate to share information in situations not set out at (i) - (iv) above. Information will only be shared when it is in the interests of a consumer, or where it is in the public interest. The Schemes will adhere to the principle of providing only so much information as necessary in the circumstances.
7. Applications to the Schemes
7.1 If a firm makes an application to join a Scheme, that Scheme may seek information from the other Scheme to establish whether there are any open disputes or any unsatisfied decisions relating to that applicant.
7.2 If the Applicant has not complied with a direction or an award, the application will not be accepted until the award is paid or directions satisfied.
7.3 If there are open disputes with the other Scheme, membership of the new Scheme will only be given temporarily until the resolution of those disputes. Should the directions and/or awards of the first Scheme subsequently not be complied with, then the new Scheme will terminate membership.
7.4 In deciding whether to accept a firm for Membership, the Schemes will have regard to whether any individual who has control or ownership of the applicant has been connected, or are connected, with a firm that has been excluded or expelled from the other Scheme, or has outstanding awards or unresolved disputes with the other Scheme. The application may only be accepted where the applicant has fulfilled all their obligations to the relevant Scheme.
7.5 Should an applicant have the characteristics of a phoenix firm, and the antecedent firm was expelled or excluded from the other Scheme, the receiving Scheme will refuse Membership unless the antecedent firm has fulfilled all their obligations to the relevant Scheme.
7.6 The receiving Scheme shall only seek information from the other Scheme once a formal application has been made to them to join their Scheme. There is no expectation that a Scheme would disclose information to the other Scheme at a nearly stage of any application process, or when confidential discussions with firms about making an application are on-going.
8. Membership of the Schemes
8.1 On occasion, firms may choose to become members of both Schemes. This may lead to a situation in which a dispute would fall under the jurisdiction of both Schemes. In those circumstances, the Scheme who will resolve a dispute will be the Scheme with whom the consumer has referred their concerns.
8.2 The terms of membership of each scheme should provide explicit reference to the unacceptability of operating a phoenix firm.
8.3 An individual can be a manager, director, owner, or person with significant control of different firms that are Members of both Schemes. In such circumstances, where one of those firm has been expelled, excluded, or fails to comply with directions or awards, the other Scheme will consider whether it is appropriate to take action against the connected firm. Such action may include exclusion or expulsion. In making a decision, the relevant Scheme will have regard to the degree of the association between the firms, and whether taking such action would be in the interests of consumers.
9. Exclusion or Expulsion
9.1 The Schemes agree to publicise their decisions to exclude or expel members within a reasonable timeframe.
9.2 The Schemes also agree to promptly refer any exclusions and expulsions to NTSELAT.
10. Interpretation
10.1 The following definitions shall apply:
11. Competition Law
11.1 It is expected that the exchange of information will be done in good faith, with the aim of protecting consumer interests.
11.2 Nothing in this MOU is intended to prevent, restrict, or distort competition between the Schemes.
