Following on from our blog “My Seller Lied to Me!”, we thought we would set out some examples of real cases of claims for
misrepresentation
that have been decided on by the Courts.

A recap of the position – what is misrepresentation?

A contract to purchase a property is no different to any other contract. If one party to a contract says something which isn’t factually accurate and the other party relies on that statement when entering the contract, this can give rise to a claim for misrepresentation.

If someone suffers a financial loss as a result of the reliance that they have placed on a representation which is false, then the aggrieved party can normally claim damages to compensate them for this.

In some cases it is possible to rescind the contract. Rescission means putting the parties in the position that they would have been in had the contract not been entered into, effectively “reversing” the transaction completely.

Misrepresentation in property transactions

If the seller of a property makes a false statement of fact about it and the buyer relies on this statement when deciding to proceed with the purchase, if this causes the buyer a loss, the buyer may have a misrepresentation claim against the seller.

Property transactions normally follow a well-established process. Part of this process includes the buyer asking questions about the property and the seller answering them. These questions are called pre-contract enquiries. To speed the process up, certain basic information about the property is normally given in advance by the seller, by completing a Property Information Form or TA6.

How misrepresentations happen

Property transactions normally follow a well-established process. Part of this process includes the buyer asking questions about the property and the seller answering these. These are called pre-contract enquiries.

To speed the process up, certain basic information about the property is normally given in advance by the seller, by completing a property information form.

The Law Society has published standard forms which many solicitors will use, but there is no rule to say that a bespoke form cannot be used or indeed that a seller needs to provide this at all. However, if a seller does not provide this information, a buyer may be unwilling to proceed.

The standard forms which are normally used in property transactions include the Seller’s Property Information Form (TA6 – sometimes referred to as a SPIF) and Sellers Leasehold Information Property Form (TA7 – for leasehold transactions). There are other standard forms which the Law Society have produced and may also contain information, when completed, which amount to representations.

Warnings to both the buyer and seller appear on the standard property information forms, informing the parties that the seller must answer the questions accurately because the buyer is entitled to rely on them when deciding whether or not to enter into the contract.

Whilst much of the time it is what appears in the property information form which forms the basis of a misrepresentation claim, any statement about the property which is untrue can be capable of amounting to a misrepresentation. Written (and sometimes even oral) correspondence between the parties and their solicitors can amount to misrepresentations too. It is important to consider the contractual terms, as these would normally look to exclude or limit liability for things said outside of what is recorded in the contract.

Mistakes can happen and a seller can make an “innocent misrepresentation”. Sometimes, a seller may make a “reckless misrepresentation”, saying something without caring or checking whether or not the statement is accurate. In some cases, a seller might deliberately say something which is misleading so the buyer proceeds with the transaction, which may amount to a “fraudulent misrepresentation”.

So what happens when the buyer discovers the truth? We have set out below some real cases, decided by the Courts, to give you an idea of how these cases are dealt with in practice.

What is a false statement of fact?

Historically, only a statement of fact which was false was considered a basis to bring a misrepresentation claim. An incorrect statement about the law, or a person’s opinion of something, were not considered capable of being misrepresentations.

However, in Pankhania v LB Hackney [2002], the Court established that in some cases, a statement as to the legal position can amount to a statement of fact. In that case, the buyers purchased a property on the basis that the existing occupiers were licensees and not tenants.

This was important, as it is easier to terminate a business licence than a business tenancy. The Court considered this to amount to an actionable misrepresentation, even though the inaccurate statement related to the legal position between the seller and existing occupier.

What if the seller doesn’t know?

If a seller does not know the answer to a question in the seller’s property information form, it is important that they do not speculate or suggest anything other than to explain that they do not know the answer. To suggest anything else can lead to trouble.

A primary authority on this point is William Sindall Plc v Cambridgeshire CC [1993]. In that case, the seller of a piece of land for development was asked whether or not they were aware of any rights affecting the property, other than those which could be seen on an inspection or which had not been disclosed in the contract.

The seller answered “not as far the vendor is aware”. This seemingly innocuous statement was considered by the Court to be a false statement of fact.

In fact a sewer ran underneath the land and this was not discovered until after completion. The Court confirmed that the statement “not so far as the vendor is aware” implied that the seller had taken steps to verify what they were saying was correct.

In short, the Court found that the seller had effectively said “I have checked, but can’t find anything”.

What if a buyer has not “relied” on the misrepresentation?

For a claim for misrepresentation to exist, there must be reliance on the part of the person that the representation is made to. If it does not influence the decision to enter into the contract, it cannot be a misrepresentation.

It doesn’t have to be the sole reason for entering into the contract, but it does have to be material and induce the person to enter into it, normally without making enquiries that they may otherwise have made. It generally also does not matter if someone can discover the truth if they had taken steps to do so.

In another case where the phrase “not so far as the seller is aware” was used is Clinicare Ltd v Orchard Homes Development Ltd [2004]. In that case, the prospective tenant of a commercial property asked about dry rot in the property and relied on this response from the landlord, even though the landlord advised the tenant to instruct their own surveyor, which they did.

The surveyor reported dry rot in the roof space. In fact there was also dry rot in the staircase and the surveyor suggested further enquiries about the staircase should take place. The tenant didn’t do this.

The Court held that the decision to ignore the seller’s advice to investigate the staircase further was based on the fact that the seller had said that it was unaware of any dry rot in the premises.

In Redgrave v Hurd (1881), a solicitor was advertising for a partner to join his practice and made claims which were factually untrue about the profitability of the practice.

Even though the prospective partner was given the opportunity to “discover the truth” by inspecting paperwork, and he decided not to, it was held on appeal that there had been an innocent misrepresentation.

In short, the prospective partner was reasonably entitled to rely on the statement made by the existing partner, even though had he checked, he would have realised that the practice was not as profitable as was claimed.

Does a seller have to correct a buyer’s misunderstanding of something?

Silence does not normally amount to a misrepresentation. Normally there has to be something specifically said which is factually untrue; the buyer cannot rely on a statement if it is never made.

However, sometimes allowing the other party to the contract to proceed on an obvious error or misunderstanding without correcting this can amount to a misrepresentation.

Whilst not a property misrepresentation case, the principles of National Westminster Bank Plc v Angeli Luki Katonou [2006] are still relevant. In that case a personal guarantee for a loan was given on the basis that the bank had led the borrower to believe that his company’s loans, including the one being guaranteed, would not be subject to debt collection processes.

The Court decided that the guarantee was given as a result of a negligent misrepresentation in failing to correct the guarantor’s understanding. The guarantee was rescinded and held to be unenforceable by the Court.

Can I force the seller to take the property back?

Rescission can sometimes be available as a remedy for a misrepresentation claim. However, it is what is known as an “equitable remedy” and is therefore at the Court’s discretion. The Court will not award rescission as a remedy unless damages would not adequately compensate the aggrieved party.

With property transactions it is a rare case where the contracts can effectively be reversed and the seller be forced to take the property back and refund the purchase price.

In Harsten Developments Ltd v Bleaken and Others [2012], a developer bought a site at auction and based part of the decision to so on information contained in the auction pack, which was made available to potential bidders in advance. The information provided included factually inaccurate information about the boundaries and a sewer.

The Court confirmed the position that rescission as a remedy to a misrepresentation claim is only generally available in cases of reckless or fraudulent misrepresentation.

The overall result of this case was that the Court applied its discretion under section 2(2) of the Misrepresentation Act 1967 and ordered rescission, along with damages for the other expenses.

Ross River Ltd v Cambridge City Football Club Ltd [2007] involved the sale and leaseback of a football stadium. In this particular case, the Court found that material misrepresentations had been made, and these were done with a view to influence the negotiations relating to the transaction.

As this was considered to be in the mind of the misrepresenting party, the Court considered this to be a fraudulent misrepresentation and ordered rescission of the contract.

What happens if the representation was true when it was made but is now factually inaccurate?

In some cases, a change in circumstances, rendering a previously true representation subsequently inaccurate, can give rise to a duty to update the other party.

In Spice Girls Ltd v Aprilia World Service [2002] the issue was whether or not there was effectively an implied representation that the pop group would not split up for the duration of an advertising contract.

Of course, the group did split up, which resulted in Court action being taken. The Court determined that there was a duty to correct the misunderstanding when it became clear that this was going to happen.

In the case of FoodCo UK LLP v Henry Boot Developments Ltd [2010] this principle was considered in the context of property.

It involved a motorway service station and a proposed development to the local area which would have increased the number of customers to the site. This development did not go ahead.

The Court decided that unless the representing party knew that the previous representations had become false, or did not care whether or not they had, there was no duty to correct the previous representation.

When buying and selling property, caution should be exercised if a seller becomes aware of a change of circumstances. It is generally best to correct any representations which subsequently become untrue as a result of a change of circumstances.

It’s my solicitor’s fault!

It is important to also understand that when a solicitor, giving or receiving information on behalf of their client, their client will be deemed to have that information.

In Strover v Harrington [1988] a property which did not have mains drainage was described as agents and then the valuer as having so. In fact, the seller had given the correct information to the buyer’s solicitor who had failed to pass this on to the buyer client.

It was held that the reason for the loss to the buyer was not as a result of the misrepresentation but because the buyer’s solicitor had not passed the correct information on. In such a case, the solicitor would potentially be liable for a claim for professional negligence.

The converse is also true.

In Cemp Properties (UK) Ltd v Dentsply [1989], the seller’s solicitor stated that certain documentation was not available when in fact it was. Had those documents been supplied to the seller, the seller would have discovered a number of problems with the property.

The buyer was successful in their claim against the seller and no doubt, the seller pursued a claim against their solicitor for professional negligence after this.

The seller told me that everything with the neighbours was fine

In McMeekin v Long [2003], the seller expressly answered “no” to questions about whether or not there were any disputes with neighbours or complaints about them as owners. The sellers in fact went further and orally stated that the neighbours were friendly.

The reality of the position was that there was an ongoing dispute about access to the property, parking and the access road, which the sellers had a right of way over.

The seller suggested that the dispute had been resolved, but the Court considered that there was a continuous confrontational atmosphere between the seller and the neighbours.

The Court specifically referred to how clear the questions in the property information form were and how it was written in such a way that it was designed for everyone to use and did not require any specific legal knowledge.

Based on the fact that anyone would clearly consider the facts of this case to amount to a dispute, the Court decided that there had been a fraudulent misrepresentation.

The seller told me that the property had never flooded

Whilst a Scottish case, and therefore not directly relevant to English Law, the case of Anwar v Britton [2018] (which involved arguments regarding a contractual clauses which sought to exclude representations), gives an example of how subjective questions regarding historical flooding of property can be and what flooding in fact means.

To one person, waterlogging may not constitute flooding, to others, it may very well do.

In this case, the buyer obtained a flood report which identified a low flood risk and recommended that the buyer raise this point with the seller. The seller’s solicitor explained that the seller had not experienced issues of flooding. It transpired that the stream which ran near the property had overflowed from time to time.

The Court held that this was a misrepresentation.

The seller said that there was no Japanese Knotweed on the property

Whilst we are unaware at this time of any reported cases on Knotweed, considering the increase in the number of nuisance claims arising as a result of knotweed being present on neighbouring land following cases such as Network Rail Infrastructure Limited v Williams [2018], it would not surprise us if there have been unreported misrepresentation claims.

Knotweed can be difficult and costly to eradicate, and to be informed that it is not present on the property when in fact it is or was, may very well amount to an actionable misrepresentation.

The seller told me that they were not aware of any developments or planning proposals in the area

In the case of Thorpe v Abbotts [2015] the sellers answered “No” to questions in the seller’s property information form regarding whether or not they had received any planning or other notices affecting the property or had any discussions or negotiations with any neighbour or authority about this.

The sellers had in fact attended public meetings regarding the proposed development of a site nearby to the property. This was at the time one of a number of sites that the local authority were considering for development.

Despite this, the Court found that there had been no misrepresentation. Broadly, the Court highlighted the fact that the property information form was designed for lay people to complete and required no specialist legal knowledge.

With this in mind, it considered that the answers to the questions were factually accurate, as at the time no definite plan to develop the nearby site had been reached, no planning notice served and no specific negotiations had taken place.

The seller told me that everything with the landlord was fine

In leasehold purchases, the new owner will become liable for the breaches of the lease by the previous tenant.

For example, if things such as ground rent or service charges have not been paid, it would mean that the new owner would be liable to pay these. It is therefore important that the position with the landlord is established and standard forms, including the leasehold information form, are normally used for this purpose.

In Greenridge Luton One Ltd v Kempton Investments Ltd [2016] the seller of an office block suggested in the Commercial Property Standard Enquiries Form that the tenant was not in arrears of service charges. This was not the case and significant arrears were found after exchange but before completion.

The Court held that this amounted to a misrepresentation and that the buyer was entitled to rescind the contract and recover its deposit.

What about auctions?

In Atlantic Estates Ltd v Ezekiel [1991] a property was put into an auction. The sales particulars in the auction catalogue described the property as a wine bar and showed a photograph of the wine bar with customers going in and out. The property did not in fact have a licence and was not currently used as a wine bar.

On appeal the Court found that the description of the property as a wine bar and the photograph together amounted to a misrepresentation, insofar as it suggested that there the premises could immediately be used as a wine bar.

With auctions, it is always advisable to take the auction pack, the relevant contractual terms and auction terms and conditions to a solicitor to check the position before bidding. Whilst the seller does not have to volunteer more information about it, this process does help to identify risks and potentially costly mistakes.

So what does the seller have to tell a buyer?

The short answer to this is “nothing”.

If the seller makes no representations about the property and tells the buyer to rely solely on their own investigations, there can be no claim for misrepresentation. The principle that applies is “buyer beware” or “caveat emptor”; it is for the buyer to decide whether or not to purchase the property based on the information they have.

In the case of Sykes v Taylor-Rose [2004], a question appearing in the property information form used at the time asked the seller the extremely broad question “Is there any other information which you think the buyer may have a right to know?” The seller answered “No”.

In fact, a murder had taken place in the property in the past but the Court decided that this was not something which the seller was obliged to disclose.

It considered the question subjective and on the basis that the sellers had answered it honestly, namely that they did not think it was relevant to the purchase, it was held that there had been no misrepresentation.

Conclusion

Every property misrepresentation case turns on its own unique facts. Whilst principles established in historical cases may be relevant, the simple solution to avoid issues in the future is to answer questions honestly or not at all.

However, mistakes can happen and if you have been adversely affected by a misrepresentation in any transaction, do feel free to get in touch with us.

This article is for information only. It is not a precise statement of the law and should not be relied upon as or for a substitution for proper legal advice. The circumstances of every case are different. We are always happy to discuss your circumstances to see if we can assist.

94 thoughts on “Property Misrepresentation Claims in Practice”

  1. I am in the process of buying a c. 100 year old property. The area I am purchasing in has a high clay content, and therefore it is not unusual for properties to experience settling etc over time.

    Especially in the context of the very hot summer/drought, I was wondering to what extent the sellers should disclose such potential issues both historic and more recent re settling/indications of subsidence? Is there a clear definition/distinction of both? My surveyor has already visited (before summer) with no issues noted, but what for example an issue developed between his visit and completion? What if the seller was to redecorate etc prior to completion?

    The TA6 form does not address structural issues if I understand correctly, rather only planning/access/services etc?

    Thank you

    1. Thank you for your comment. Firstly, please note that the Property Information Form is intended to be completed and read by lay persons and Courts have ruled that as such it is not there to try to trip up buyers or sellers, and that there is no hard and fast definition of such things. However, it is a representation on which a buyer can rely and is entitled to rely, and usually does rely. Therefore it is important that any information given in it must be truthful.

      However, at the same time, there is no requirement to volunteer information necessarily. The seller is only required to ensure that where they do volunteer information it is true. That being said, answering “no” to a question about whether you are aware for, for instance, any structural defect is a representation on which the buyer may rely, so if that turns out to be false there may be a claim for misrepresentation there.

      You may wish to contact your conveyancing solicitors in respect of this question as they will be better placed to, in the context of the transaction as it currently stands, advise you on filling out the PIF.

  2. So if a seller puts “Seller makes no representations about the property- buyer to rely solely on their own investigations” does that suffice to allow no claim for misrepresentation?

  3. Hi, I bought a ground floor flat almost 5 years ago and when the new basement flat owner moved in last year , they started complaining about the noise coming from my flat.

    The entire flat had a wooden flooring, which was one of the attractions when buying a flat.

    He then found a clause in the lease that states that the both the bedroom and living room must be fitted with a wall-to-wall carpet. I was happy to install a carpet in the bedroom as that’s where the downstairs neighbour had the biggest issue. I am now trying to sell the flat and the potential buyer is pulling out because he doesn’t want the carpets in the living room.

    In this case, who’s at fault here? Is it the seller who had wooden flooring illegally, and didn’t tell me when they sold the flat? Or is it the management company, who hadn’t noticed this and only now have decided to enforce me to do it or is it me for not checking this?

    It’s very frustrating and just wanted to know whether there is anything I can do to claim some kind of compensation.

    Thanks!

    1. Thank you for your comment.

      It is very unlikely that you would have any basis of claim against the seller. You purchased the flat in the condition that you viewed it in and it was not down to the seller to identify any possible breaches of the lease. If the seller expressly stated that there were no subsiding breaches, then there may be a basis of claim, but ultimately it is down to a buyer and their solicitor to decide whether or not there are any breaches by a seller which need to be remedied before proceeding with a purchase. This is likely what you are discovering at this time.

      If you purchased a flat which was in breach of the applicable leasehold terms, and floor coverings is a fairly usual term to appear in a residential lease, then you are liable for rectifying the issue.

  4. In April 2022 we made an offer on a property which was accepted. One of the key factors in the decision to offer was the annual service charge for the property. We were informed by the agent twice verbally and once in email that the service charge ~£2000 per year. In July 2022 the report on title and supporting documentation was provided by the conveyancer, which showed the actual service charge to be 2 x the amount that had been quoted, resulting a significant, unbudgetted additional cost. We decided to proceed rather than pull out of the sale for a number of reasons, principally the interest rate increases that have taken place since the initial mortgage in principle was provided, which would have resulted in an even higher additional outlay. We have now exchanged contracts on that basis and will complete in late August. I consider that I have a claim for either innocent or negligent misrepresentation against the estate agent. Grateful for your thoughts. Thanks

    1. Thank you for your comment.

      From what you have stated, it is very unlikely that you have a claim for misrepresentation. Reliance is a key element to any misrepresentation claim. A buyer cannot hold a seller liable if the seller has not misled the buyer and caused the buyer’s loss. Our blog on this can be found here… Reliance: A Necessary Ingredient in Misrepresentation Claims.

      In short, you did not rely on the seller’s inaccurate statement of fact regarding the service charges, whether made by the seller or the seller’s agent. You knew that this statement was inaccurate and decided to proceed for other reasons.

      1. I have a very similar issue to the above poster, but have not yet completed as I am still wanting clarity. If I were to not complete, would I be able to make a misrepresentation claim for my costs incurred so far?

  5. We purchased our property in January 2021 and both the waste water company and the seller confirmed that the property was connected to mains drainage. In April 2021, the manhole cover overcharged and we reported a blockage to the waste water company. The following morning, their contractor attended and confirmed we were discharging into a cess pit and we had no mains drainage connection.
    I took this up with the waste water company and exhausted all their complaint process and enlisted the assistance of the Consumer Council for Water. They said they confirmed on the basis that a water bill had been paid on the property as far back as their records existed (to 2006). In correspondence they did confirm an enquiry had been made for a mains connection in 2016.
    We understand the sellers had purchased the property around 2008 and only lived in it periodically with older relatives being the main residents.
    The connection to mains drainage was a material fact in our decision to make an offer of the full asking price. Had we known about the drainage situation we would definitely have made a reduced offer as we are not happy with cess pit drainage and would have factored in the cost of connection into our finances as we were using all of the proceeds of our sale to purchase and did not intend to take out a mortgage to buy the property.
    We cannot afford to pay to make the connection so we haven’t made a “loss” and would use any damages from a claim towards the connection. Having a cess pit is a constraint on value compared to the property on mains drainage. What are our options?

    1. Thank you for your comment.

      If you were informed that the property was connected to the mains by both the seller and the relevant water authority, when it was not, there would be a basis of claim in misrepresentation against the seller. Also, check your water searches as if these were not accurate, the search provider may have insurance which can be claimed against. There will be a question on whose representation you relied on. We suspect that ultimately, liability would likely be shared between them in some way.

      As you have identified, your loss is the fact that you would have negotiated the purchase price if you had known. Your loss is therefore the difference between what you paid or the property and what a reasonable person would have paid for it knowing about the cess pit. This is called diminution in value. There is also some limited scope for the cost of claiming remedial works in a misrepresentation claim.

  6. We recently purchased a house about 5.5 km from an RAF base and we asked the seller if this caused noise issues, and were assured via Text Message it didn’t, however having been here now a week it is very clear to us noise is an issue, and flying takes place several hours a day every week day, but, not at weekends. Would this be deemed miss representation as the main thing we were looking for was peace and quiet.

    1. Thank you for your comment.

      Anything said which is factually inaccurate and that a buyer has relied on when entering into the contract is a potential misrepresentation.

      However, it would be necessary to prove that you relied on the misrepresentation when entering into the contract. Put another way, you would likely have to convince a judge that you reasonably believed that there would be no noise issues from a nearby RAF base.

      More fundamentally, and likely problematic, would be the fact that a noise nuisance to one person may not be a noise nuisance to another. There is an element of subjectivity with matters such as this and there is a difference between a seller expressing an opinion on whether or not the noise was a problem for them or whether they were saying, as a matter of fact, that no one would have any issues with noise. A statement of someone’s opinion is not actionable because someone else disagrees with that opinion. Only a statement of fact which is not accurate is actionable.

      Your matter would likely turn on what the text message, given its ordinary meaning, would mean to a reasonable person reading it.

  7. Hi
    Please I would like some advice on a property purchase I made at a time I was going through a lot of stress in my personal life that I did not bother reading any of the paper work . I relied on the seller’s oral information about the age of the property. When I asked when the property was built she said 1959 I thought that was okay as long as it was less than a hundred years old . So I proceeded on the basis that the property was not that old and therefore the level of repair would not be significant. However I later found out that the property age is actually 1930 to 1949 which means the property is way older than I had been made to believe by the seller. Since moving in , the amount of repair I have done and still doing is causing me a lot of financial and emotional stress , the roof tiles are so brittle and has been falling down the driveway so I am asking people to avoid standing in the drive way to prevent being hit by the falling tiles so far I have spent over 3000 pounds on repairing the roof and I have now decided it is better to replace the entire roof to avoid spending more on repairs . 2 Quotes obtained for roof replacement is around 10000 pounds per quote . The seller also lied that they intend to build a timber house far behind my property, she pointed her finger inside the bushes far in to indicate where they intend to build a home , this led me to believe that it was far inside but only to find out the building garage is so close to our boundary and it’s giving me a shade in the mornings. Had I been given the right information I would not have made the offer so high . I believe I had paid too much considering the amount of repairs I have had to do . I have also replaced the driveway completely because it was so damaged and constituted a hazard which cost almost 5 thousand pounds . When I came to view the property they covered the driveway with several cars it was impossible to see the level of damage .
    I would appreciate your advice . I am really stressed out about the extent of repairs and it’s very clear that I paid too much . I have been deceived .

    1. Thank you for your comment. We cannot give specific advice on our website, just general guidance which should not be considered a substitution for informed legal advice.

      For a misrepresentation claim to exist, the buyer must have relied on the false statement of fact made by the seller.

      Whilst we would need to review matters in much more detail to form a proper view, from what you have written we think it is unlikely that you would have a claim. There are several possible risk factors here but the main reason for this is that it cannot realistically be said that you relied on what the seller told you.

      You have said that you were only prepared to purchase a property that was less than 100 years old, because you had formed a view that maintaining it would be less burdensome than a property older than this. If the property was built in 1930, it is still less than 100 years old and would still have met your criteria.

      In determining reliance, the Courts will consider whether or not the person bringing the claim has “changed their position”, as this is a primary indication of reliance. Put another way, unless the buyer can prove that they would not otherwise have purchased the property or would otherwise have behaved differently, it cannot be said that they have “changed their position” based on what the seller has said to them. As you would still have purchased the property because it is less than 100 years old, we think it is unlikely that you would be able to successfully prove that you relied on the misrepresentation about the age of it; you would have proceeded to purchase the property even if you were told it was built between 1930 and 1949, as it would still be less than 100 years old.

      If your surveyor was instructed to investigate and report back on the issues that you are now experiencing but failed to identify any possible problems, then you may have a professional negligence claim against your surveyor.

      As for the location of the subsequent build by the seller, there may be a basis of claim in misrepresentation. However, we suspect that you would have some serious evidential issues. You would have to prove that the seller had pointed to a specific location and also convince the Court that your reliance on this was not an unreasonable interpretation of the “statement” that the seller had made. Put another way, it is a general principle of law that “he who alleges must prove”. The burden of proof, or threshold, is “on the balance of probabilities”. In plain English, this means that you would have to prove that there is more than a 50% possibility where the seller indicated the build would be and that it was not an unreasonable interpretation of the statement. Unless the seller admits this, we think you would struggle to discharge the burden of proof.

  8. Hi, we purchased a new build property from a small-scale local developer last year and found out that the property was not connected to the public sewer as had been stated in the TA6 property information form and the Water and Drainage search. Following investigations from the water board, and an admission by the developer that that this is their responsibility to fix, the developer has been instructed to address the issue under the Water Industry Act 1991. Whilst this is good news, this feels like a misrepresentation case, potentially based on negligence and has caused us a great deal of stress and inconvenience. I’d be interested to know your thoughts about this – thank you.

    1. Thank you for your comment.

      Before considering any claim, thought must be given to the loss that has been suffered. With the exception of a few types of cases, if there has been no loss or damage, there will be no claim. Trespass for example, is what is called ‘actionable per sale’, meaning that there need not be a loss to take action to stop it.

      If the developer has agreed to rectify matters, there is a potential argument that there has been no loss. Whilst diminution in value, namely the difference between what was paid for the property and what it was worth with the defect, would ordinarily be the measure of damages the Court would apply, the Court does have discretion and can sometimes award the cost of repairs. If the repairs or rectification solves the issue, then it would probably not be in your interests to pursue a claim.

      Compensation, damages, would not generally be available for stress and inconvenience alone. The exception to this is normally when a contract is entered into for enjoyment. For example, if a package holiday was poor, then damages for loss of enjoyment would be a head of loss.

  9. Hello,
    We have just concluded missives on our new build. We were informed that there was a plot of vacant land next to the property which would house stays which support two wooden pylons. We were informed that the pylons would be moved further back and that only the stays would remain on the property next to us.

    As we were not permitted to access the building site we got a view of the site weeks later with drone footage. We noticed that the wooden pylons had not been moved and we questioned this via email. The response was that it had not been done but that power company would be moving them.

    We sent a follow up email just prior to missives. The sales person moved to a new site and was replaced. It has now come to light that the site manager and building director are advising that the pylons are not going to be moved.

    The pylons are literally a few feet off the right side of our fence and we may actually have power cables running over our garden. The property was bought on the premise that these would be moved further back. During the initial review of the plans prior to us paying a reservation deposit it was expressly explained that they would be moved.

    Besides being an eyesore and possibly a safety issue. We believe that it may also affect the property value as well. We entered into this purchase being informed about f pylons being moved.
    Would this constitute misrepresentation and as we have concluded missives are there avenues that we could follow to achieve some sort of compensation or having the seller stick to moving the pylons?

  10. We started to purchase a property in Feb2020, just before the 1st lockdown and completed in July 2020. There were things we were not told on the TA6. One of which was the question that asks whether the Seller owns or owned property/land adjacent to the property. He said no, when indeed he did and he was already in the process of selling it to a friend in the village with a 40% net profit overage and full control with a timeline based on getting planning approval and/or development. Before we purchased the property we tried everything we could in lockdown to find out more about it but information was not forthcoming as councils and land registry were mainly on furlough. We asked the Seller and the Estate Agent about the land surrounding the property and the Seller said that it was all owned by the local Farmer and there is no way it would be built on, followed up by telling us that he was a man of honour and he does not break his word. Stupidly we believed him. The Land to rear of us has subsequently got planning, dubiously for a large Agricultural storage and lambing shed, widening of the access apron on a blind bend and a large driveway. This is basically stage 1 of an in-depth long TA1 set of overidges on the land, which is clear both the Seller and his Friend are looking to develop the land further. Do we have a case against the Seller or do we just have to accept that Cheats really do prosper?

    1. Thank you for this. While we cannot give definitive advice without having seen all the items in question, whether there is a case there will very much depend upon the contents of the Property Information Form and on the contract. It should be noted that it is not normally a misrepresentation for the seller to fail to volunteer information. It is, however, a misrepresentation if they make a statement that is false and which you rely upon and are entitled to rely upon, and as a result of which you have suffered loss or damage.

      The concerns I have here are whether the false statement he made, if indeed it was false, would have engendered you undergoing any loss. If he does own land adjacent to the property, then whether he gets planning permission for it or not is a matter for him. Yes, if he did not disclose when asked that he did own that land, then that is a misrepresentation. However, I cannot see that any loss you have suffered would flow directly from this, unless I am missing something here.

      As regards verbal misrepresentations that he would not build on this land and that he is a man of his word, I am afraid that is unlikely to be a cause of action. It is usually a term of the contract of sale that no party may rely upon any representation made to the other except those in writing. Obviously, your contract may differ but that is the usual wording included in it, so I do not think that in and of itself would form a course of action.

  11. Hi! We purchased a house 18 months ago which was advertised to us as a 5 bedroom property. Recently the council contacted us to say that we owe 18 months of council tax on the basement flat. Obviously this is distressing as we were not informed we were purchasing two rateable properties and on the TA6 form it referred only to a single council tax rate. I have contacted the seller’s estate agent and they have confirmed in writing that they were never made aware of this fact. The seller’s estate agent contacted the seller to try to get to the bottom of it, and the seller said that because she removed the cooker from the basement, that council tax was not applicable (we never saw it in there and were not told that the basement had eve been used as a separate flat with kitchen, though there is a shower in the basement). I have contacted the council and they have said that is simply not true and they would never give that advice in any case. They have also confirmed that rates have been payable on the basement since the 1980s. And has been paid separately. We since found out that she had been renting the basement to several persons over the years. Obviously, we are now paying two council taxes potentially in perpetuity. We would not have bought the property if that was the case, and our mortgage specifically prohibits renting out any part of the property in any case. It is clear that the seller was aware of the council tax in the second property as she had been renting it out but never disclosed this to either the estate agent nor on the TA6 form which we relied on when deciding to purchase. She has since refused to communicate with us and we now feel that a legal avenue is the only way to resolve the issue. Do you think we have a case to make a claim against the seller in this instance?

    1. Thank you for your comment.

      This is an unusual situation, but then this blog has thrown up a number of novel points in the past.

      In short, there may be a claim for misrepresentation but it will depend a great deal on what you were told. If you were expressly told that there would only be one council tax bill to pay, then this would likely be actionable.

      It sounds as though perhaps the seller was aware of this issue and allowed you to proceed on under a misunderstanding. This is not a straightforward point legally. A misrepresentation can occur by reason of what is left unsaid. However, in the simplest of terms, this would involve showing that the seller allowed you to proceed under a misapprehension without correcting you.

      Do get in touch if you would like to consider this in more detail.

      Note: This is general guidance only and should not be relied on as a substitution for properly considered legal advice.

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