191 thoughts on “Property Misrepresentation Claims in Practice”
Hi Mark We purchased a house back in March this year and moved in to the property the following month. Unfortunately we have noticed massive patches of damp coming through on the bedroom wall and the bathroom which is situated on the back of the house. Both rooms now have green furry mould all over the walls and is actually spreading onto the furniture inside the bedroom. We are unable to sleep in the bedroom due to the bedding being so damp. This was not mentioned on any forms or paperwork even after the solicitor asked the seller was there any problems with the property before we purchased the house. On viewing the property before the purchase all the rooms had been newly painted with no signs of damp visible. Could you kindly advise if there is anything we can do or claim for misrepresentation. Thank you!!
From what you have written, there may not be anything that you are able to do in terms of a misrepresentation claim. For a misrepresentation claim to exist, the buyer must have relied on something the seller said about the facts of the situation (i.e. not the buyer’s “opinion”). Occasionally it is possible to base a claim on what is left unsaid, but this involves showing that whilst the statement of fact made by the seller was accurate, because of what was left unsaid, the statement does not accurately reflect the facts of the matter. It is also necessary to show that the seller knew the buyer was proceeding under a misapprehension.
If you were not actively told by the seller that there was no damp issue, or at least something was said to you which reasonably led you to believe this and the seller realised you had made a mistake, then there would not be a claim for misrepresentation. Put another way, a buyer would have to be able to “blame” the seller for saying something that was factually inaccurate. If the seller said nothing about the particular issue, then the buyer has relied on nothing the seller said; the buyer has relied solely on their own assumptions.
Thank you Mark for your kind reply. The seller was asked if the property had any known problems before the sale went through. For which he confirmed no on the legal form signed by him. We have also had a rain water pouring into one of the bedrooms. Which we have had to pay to have the roof repaired, this was also not mentioned or confirmed on the legal form. Is there absolutely nothing we can do either through the seller or surveyor. Thank you Mark. Kind Regards Terence.
Hello, I bought a new build property this month on the top floor of a building (3rd floor). After moving in I noticed that the building vibrates every 5/10 minutes for 10 seconds, which generates noise too. It turns out that the underground line passes right under the building, the cause of the vibrations are the underground train traffic.
I have not been told about either the underground line or the vibration-noise problem. It looks like the seller & estate agent were aware of this problem (via anecdotal evidence).
There are other leaseholders having the exact same problem in the building.
Do you think I can make a case against them to rescind the purchase?
From what you have written we do not think you would have a claim for misrepresentation entitling you to rescind the contract.
A seller is under no obligation to volunteer information to a buyer. A buyer is entitled to ask for information, but the seller does not have to respond to those enquiries if they do not want to. The basic position is buyer beware, which means that the buyer has to satisfy themselves of what they want to know and if they do not get the answers they want, make a decision about proceeding or not.
Unless the seller made a factual statement that the building does not vibrate, or at least said something that could reasonably be implied to mean that this was not happening, there would be no claim. This is because the buyer would have to have relied on something inaccurate that the seller said when agreeing to enter into the contract. If the seller did not make any factual statement, the buyer cannot say that they relied on anything but their own assumptions and there would not be a claim.
We bought a property in May this year. The seller claimed in the legal paperwork there was no ongoing disputes with neighbours. Since moving in the said neighbours have made our lives hell. There is issues with parking, issues with summerhouse in our garden followed by a letter from planning at council (summerhouse was put up by the previous owner) issues with the constant deliberate noise from neighbours. All of which was known by the seller and why they finally sold the property. The seller did not disclose any of this, however when we contacted the sellers they confirmed (via writing a text) all of the issues including the neighbours threatening behaviour, which we also have endured. Calls to the police, which we have also had to do. The parking issues, the planning and the noise issues and many other things exactly what we are now dealing with and have been since 8 weeks living in our new home. To say we are in a living hell is an understatement. Is there anything we can do? Would we have a case or a ‘get out’ clause?
Thank you for your comment. While we would need to see all the relevant documentation to make a proper assessment of your situation and whether there is a claim, it is possible to bring a claim in misrepresentation over neighbour problems. While there is no duty to disclose or volunteer information as to same on this, the Property Information Form usually asks whether a seller is aware of anything relating to the property which has or which could give rise to a dispute, or to a neighbouring property. Therefore if the seller has put “no” to this when in reality there were such disputes, and you relied upon it, then you may have a claim in misrepresentation. However this is of course subject to the content of the contract which may contain non-reliance or exclusion clauses.
In terms of remedies, in theory rescission of the contract is available for a claim in misrepresentation, however, in practice it is rare that a Court will order this in the context of a residential property where there may be chains at both ends that render unpicking the transaction practically difficult. In addition that you have completed on the sale may also act as a bar to rescission if the Court finds that you could have discovered the misrepresentation before completion. However that would not stop you recovering damages which would be expressed as a diminution in the value of the sale.
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Hi Mark
We purchased a house back in March this year and moved in to the property the following month. Unfortunately we have noticed massive patches of damp coming through on the bedroom wall and the bathroom which is situated on the back of the house. Both rooms now have green furry mould all over the walls and is actually spreading onto the furniture inside the bedroom. We are unable to sleep in the bedroom due to the bedding being so damp. This was not mentioned on any forms or paperwork even after the solicitor asked the seller was there any problems with the property before we purchased the house. On viewing the property before the purchase all the rooms had been newly painted with no signs of damp visible. Could you kindly advise if there is anything we can do or claim for misrepresentation. Thank you!!
Thank you for your comment.
From what you have written, there may not be anything that you are able to do in terms of a misrepresentation claim. For a misrepresentation claim to exist, the buyer must have relied on something the seller said about the facts of the situation (i.e. not the buyer’s “opinion”). Occasionally it is possible to base a claim on what is left unsaid, but this involves showing that whilst the statement of fact made by the seller was accurate, because of what was left unsaid, the statement does not accurately reflect the facts of the matter. It is also necessary to show that the seller knew the buyer was proceeding under a misapprehension.
If you were not actively told by the seller that there was no damp issue, or at least something was said to you which reasonably led you to believe this and the seller realised you had made a mistake, then there would not be a claim for misrepresentation. Put another way, a buyer would have to be able to “blame” the seller for saying something that was factually inaccurate. If the seller said nothing about the particular issue, then the buyer has relied on nothing the seller said; the buyer has relied solely on their own assumptions.
Thank you Mark for your kind reply. The seller was asked if the property had any known problems before the sale went through. For which he confirmed no on the legal form signed by him. We have also had a rain water pouring into one of the bedrooms. Which we have had to pay to have the roof repaired, this was also not mentioned or confirmed on the legal form. Is there absolutely nothing we can do either through the seller or surveyor. Thank you Mark. Kind Regards Terence.
Hello,
I bought a new build property this month on the top floor of a building (3rd floor). After moving in I noticed that the building vibrates every 5/10 minutes for 10 seconds, which generates noise too.
It turns out that the underground line passes right under the building, the cause of the vibrations are the underground train traffic.
I have not been told about either the underground line or the vibration-noise problem. It looks like the seller & estate agent were aware of this problem (via anecdotal evidence).
There are other leaseholders having the exact same problem in the building.
Do you think I can make a case against them to rescind the purchase?
Thank you
Thank you for your comment.
From what you have written we do not think you would have a claim for misrepresentation entitling you to rescind the contract.
A seller is under no obligation to volunteer information to a buyer. A buyer is entitled to ask for information, but the seller does not have to respond to those enquiries if they do not want to. The basic position is buyer beware, which means that the buyer has to satisfy themselves of what they want to know and if they do not get the answers they want, make a decision about proceeding or not.
Unless the seller made a factual statement that the building does not vibrate, or at least said something that could reasonably be implied to mean that this was not happening, there would be no claim. This is because the buyer would have to have relied on something inaccurate that the seller said when agreeing to enter into the contract. If the seller did not make any factual statement, the buyer cannot say that they relied on anything but their own assumptions and there would not be a claim.
We bought a property in May this year. The seller claimed in the legal paperwork there was no ongoing disputes with neighbours. Since moving in the said neighbours have made our lives hell. There is issues with parking, issues with summerhouse in our garden followed by a letter from planning at council (summerhouse was put up by the previous owner) issues with the constant deliberate noise from neighbours. All of which was known by the seller and why they finally sold the property. The seller did not disclose any of this, however when we contacted the sellers they confirmed (via writing a text) all of the issues including the neighbours threatening behaviour, which we also have endured. Calls to the police, which we have also had to do. The parking issues, the planning and the noise issues and many other things exactly what we are now dealing with and have been since 8 weeks living in our new home. To say we are in a living hell is an understatement. Is there anything we can do? Would we have a case or a ‘get out’ clause?
Thank you for your comment. While we would need to see all the relevant documentation to make a proper assessment of your situation and whether there is a claim, it is possible to bring a claim in misrepresentation over neighbour problems. While there is no duty to disclose or volunteer information as to same on this, the Property Information Form usually asks whether a seller is aware of anything relating to the property which has or which could give rise to a dispute, or to a neighbouring property. Therefore if the seller has put “no” to this when in reality there were such disputes, and you relied upon it, then you may have a claim in misrepresentation. However this is of course subject to the content of the contract which may contain non-reliance or exclusion clauses.
In terms of remedies, in theory rescission of the contract is available for a claim in misrepresentation, however, in practice it is rare that a Court will order this in the context of a residential property where there may be chains at both ends that render unpicking the transaction practically difficult. In addition that you have completed on the sale may also act as a bar to rescission if the Court finds that you could have discovered the misrepresentation before completion. However that would not stop you recovering damages which would be expressed as a diminution in the value of the sale.
If you are interested in discussing this further, please feel free to contact our Litigation department at the Braintree office.