The Ombudsman for Estate Agents (OEA) has received numerous enquiries about HIPs, from both member agents and consumers, but the Ombudsman has now received his first formal complaint and this concerns a dispute about the charge for a HIP.
The public line that the OEA has taken on such matters is that if a seller is charged for a HIP on disinstructing an agent, but the Pack was advertised as free and the seller's understanding that it is a free pack is on the basis that there was nothing advising him that a charge applies if he disinstructs the agent, the OEA is likely to find against the firm.
If, however, the seller claims he was told the pack was free, and has no evidence to support that, but the agency agreement is absolutely precise about the conditions under which a charge for the Pack applies then (as in the case of the OEA's first complaint) the OEA would uphold the contractual position.
The OEA's advice is therefore that disclosure at the point of sale is vitally important, and that the best approach for both the firm and consumers is to have a clause in agency agreements stating that a separate charge applies for the HIP and what that charge is, or a clear statement of when (if at all) that charge will be waived. For further information see:

Under section 160(1) of the Housing Act the HIP duties "do not apply in relation to a residential property at any time when it is not available for sale with vacant possession".
Under subsection (2), a property shall be presumed to be available with vacant possession if it is actually available with vacant possession "unless the contrary appears from the manner in which the property is being marketed".
If a property is being marketed with a sitting tenant - so that the property will be sold with the tenant in place - the HIP duties would not apply.
If, however, the marketing was on the basis that the tenancy will be terminated and the buyer given vacant possession by the time the sale is completed, then the HIP duties would apply.

Section 149 of the Housing Act 2004 provides that a property is put on the market when the fact that it is available for sale is made public. A fact is made public 'when it is advertised or otherwise communicated (in whatever form and by whatever means) to the public or to a section of the public'. Communication of availability for sale by word of mouth is therefore caught, and counts as marketing.
One-to-one sales that don't involve any other person and do not involve marketing to a 'section of the public' are not caught by the legislation. But section 159 of the Housing Act 2004 provides that where someone acting as an estate agent introduces a seller to a buyer as part of a business, that is treated as a 'qualifying action' which triggers the HIP duties.
This means that the HIP duties will usually be triggered where an estate agent, as part of his business, arranges "informal viewings" of a property that is available for sale, or communicates this availability by any means to any one as part of an attempt to sell it.

Properties put on the market before the commencement dates will not need to produce a HIP. A date may be set when all properties that remain on the market will be required to have a HIP.

The final phase of the roll-out to all existing properties (2- bedroom and smaller) from 14 December 2007
A consultation on proposals for a complementary searches charging regime.
Publication of guidance in December for local authorities and personal searchers to help them speed up searches and deliver a fairer deal for consumers
An extension of the temporary First Day Marketing provisions for an additional 5 months to allow for full flexibility (from 1 January to 1 June 2008).
The laying of an order to temporarily amend the HIP Regulations until 1 June 2008. During this time HIPs will only need to include the Lease, while the HIP will authorise other leasehold documents.
We have commissioned Ted Beardsall, Deputy Chief Executive of the Land Registry - and member of our Home Buying and Selling Stakeholder Panel - to advise on what else can be done to improve the search process and the provision of leasehold information.

We have extended to ensure smooth implementation as well as because of a later than expected commencement of Home Information Packs and in response to delays in the production of guidance to local authorities dealing with access to and charging for search information.

If these packs contain leasehold information which will not be mandatory under the updated regulations, those sellers will benefit from having more information about the property available for potential buyers thus making their homes easier to sell.

As we made clear, we planned to roll out to other sized properties having taken into account the number of assessors and how HIPs are operating in the market ensuring a smooth implementation in the housing market. However we also had a duty to consumers to ensure the carefully managed, smooth implementation of the packs, which is why we looked carefully at how they are operating in the housing market.
The government also commissioned and considered extensive analysis by Europe Economics on the impact of HIPs on the market. It finds no evidence of any impact on transactions or prices, although there is a predicted short term impact on new listings as sellers change the timings of their listings. It concludes that the impact on listings is short lived, and the impact on the market is marginal compared to the wider factors. The final stage of the roll out follows careful consideration of how HIPs and EPCs have been working in order to maintain their smooth introduction into the housing market. Now, as from 14 December DEAs will be able to carry out EPCs for all properties.

HIPs will include the EPC, searches and a range of legal documents which are necessary parts of the home buying and selling process.
These documents bring information up front in the home buying and selling process reducing the risk of problems emerging later on that cause wasted money, time and energy This will allow less time for additional problems to emerge and will reduce the number of sales which fall through and in turn reduce the number of chains which collapse.

It is standard conveyancing practice for the seller to provide leasehold information once a sale has been agreed but before completion.
The temporary provision will allow this practice to continue and is intended to protect owners of leasehold properties from facing additional and unreasonable costs at the beginning of the sale process, while additional evidence is collected into the extent of this problem.
Transactions involving leasehold properties are often held up by delays in obtaining leasehold information. Providing this information upfront in a HIP is intended to eliminate these delays and also help reduce the number of transactions that fall through because of problems associated with leasehold information coming to light at a late stage.
We are not removing the leasehold documents from the pack; instead, the government has decided to allow the provision of leasehold documents to be determined by the market. This provides consumers with choice, encourages competition and helps to drive down prices. The government is also engaging with stakeholders in an ongoing process, and taking account of the views of these stakeholders in making its decisions.