191 thoughts on “Property Misrepresentation Claims in Practice”
Hello, The house I bought 4 years ago is showing signs of subsidence. I put a claim in with my insurer and it’s currently going through the process. The loss adjuster has visited and now it’s onto the next stage. I just found out from a neighbor that the brother of the former property owner and seller had previously put a claim in for subsidence, and that there was also an issue with the land bordering my boundary that resulted in a significant number of houses having to be demolished and rebuilt due to unstable foundations resulting in subsidence. It appears that the seller with held this information on the property disclosure documents. I believe the information that has recently come to light to be true, as it came from the brother of the seller (it was actually their mothers house and when she died they sold it to me). The survey did not mention subsidence either, so perhaps this was overlooked at the time. Is this something that I can take to court? My insurance company tells me they can’t disclose previous insurance claims from other claimants due to data protection so I am not sure where I stand? Thanks
Thank you for your comment. Firstly, before instructing solicitors to do anything, you should check the position with your insurers. You may have cover for legal expenses.
As for a claim for misrepresentation, there is no legal requirement for a seller to disclose anything about a property. If they withheld information about subsidence, this does not give rise to a claim. If, however, they provided information about the property either voluntarily or in response to enquiries and this information confirmed that there was no subsidence (or more likely, no insurance claim) then there may be a basis of claim against your seller.
You cannot hold a seller of property liable for anything if they have not provided information. You can only hold a seller of property liable for something if they provided you with misleading information that you relied upon when buying the property.
As for your surveyor, whether or not there is claim for professional negligence here will depend on what the surveyor agreed to do. This is normally called the professional’s “retainer”. If you instructed your surveyor to check for subsidence and they missed this, then there may be a claim if a reasonably competent surveyor would have identified it. The starting point for considering a claim would be the terms and conditions that you and the surveyor agreed in order to identify where the surveyor has breached their duty to you.
In terms of obtaining evidence of previous insurance claims, this is ultimately possible via a court application for disclosure. However, this is contingent on being able to show that there is a case to answer and that the person who has the information or documentation can assist by supplying it.
We purchased a ground floor apartment in Feb 2021 as part of a converted house (5 apartments in total) which is a leasehold.
During conveyancing on the TA6 the seller was asked did they know if any previous flooding at the property to which they answered ‘No’. We have experienced 4 internal floods (water comes up through services in heavy rainfall which has ruined the apartment causing over 10k worth of damage (leasehold building insurance covers this). We have since found out this has happened under the sellers ownership at least 4/5 times with the same flooring instance of water coming up through the services and ruining carpets, woodwork etc like in our case.
Question would be, have we got a case for misrepresentation against the seller for answering No on previous flooding. If they had answered honestly that 4 or 5 previous internal floods had occurred, we wouldn’t have entered into the contract.
We lived on concrete in damp conditions for 3 months and are both asthmatics who had to request additional steroid inhailers.
Thank you for your comment and we are sorry to hear of this.
From what you describe, there possibly would be a case of misrepresentation if you were able to prove the historical flooding. If you have good evidence (or potentially reasonable ground to make an application to the Court to obtain that evidence) that the property did have a history of flooding, then we cannot see why such a claim would not be successful.
However, by their nature, the questions and answers given in the TA6 (Property Information Form) are subjective. This is because they are designed to be answered by people who are not legally qualified. There is not a statutory definition of “flood” and what a “flood” is to one person, is a “leak” to another. We have come across arguments in defence of matters on this basis in the past. It often arises in relation to neighbour disputes, on the basis that people have differing views on what constitutes a dispute. Of course sometimes these things are very obvious; it would be difficult to argue that a foot of standing water in a house was not a flood. However, sometimes it is not so clear cut.
The case of Mc Meeking v Long [2003] involved argument relating to what constituted a neighbour dispute. We refer to it in our blog here…Property Misrepresentation Claims: Example Cases and Advice (cunningtons.co.uk). Whilst every case will turn on its facts, it does give an example of how a Court may approach the question.
To the extent that the property could be considered unfit for habitation, the Defective Premises Act 1972 might be relevant to consider. Broadly, this imposes duties on builders to construct or convert properties in a workmanlike manner and with appropriate materials.
Do feel free to get in touch if you would like to consider matters further.
We are selling a property in wales. We have had a few disagreements with a neighbour a few house up, this was almost 5 years ago when we first moved in about parking, this resolved and now we have a double drive so hasn’t been an issue for four years. We had some work completed to our property in 2020 such as changing roof and doors where our neighbour complained to building regulations and planning council as they believed this was needed, the property was inspected and this was not required. On our property form I have disclosed “yes” that the neighbour made a complaint to these offices about the required certificates and approvals, this was inspected. There have been no issues with the neighbour since. However just recently, we had a fairly friendly conversation with the neighbour who complained about our guttering, causing puddles in their pathway (they are local authority) tenants in flats and staying that our guttering is overhanging their airspace. However this is not as it’s within our boundary. I explained that I would clear leaves abs debris from the guttering which we have done and have not heard from them since. Surely I do not need to update our buyers in this, as if there was a case of boundary this would be from the landowner, the council and not the tenants. We are considering having a quote to relocate the guttering just to prevent any further issues
Thank you for your comment. We are only able to provide general guidance on our website, which should not be considered an alternative to bespoke legal advice. We are therefore unable to provide you with a specific response.
However, by way of general guidance, you should discuss this with your conveyancing solicitor. If the standard TA6 Property Information Form was used, you will have read the guidance notes accompanying it, in particular those notes which appear on the form itself which read:-
“If you later become aware of any information which would alter any replies you have given, you must inform your solicitor immediately. This is as important as giving the right answers in the first place. Do not change any arrangements concerning the property with anyone (such as a tenant or neighbour) without first consulting your solicitor.”
If events during the course of the transaction arise and because of these, the information regarding that subject which was previously provided has become inaccurate or now gives a different impression of matters, the only “safe” option to avoid a potential argument in the future would be update the information already provided.
Sometimes a misrepresentation can occur when accurate information about something is provided but because of some other important fact which is relevant to this but not mentioned, an inaccurate impression of the factual circumstances is given to the buyer. This is not the same as not mentioning anything at all, in which case no misrepresentation arises.
Reliance is a constituent part of any misrepresentation claim. A buyer must have altered their position and relied on the representation/statement made when choosing to enter into the contract. If nothing is relied upon, because no information about that point has been provided, there can be no misrepresentation. If the representation/statement made is factually accurate on the face of it but because of some critical point which is not mentioned and it would be reasonable to have expected it to be mentioned, then a misrepresentation can still occur.
Put in the simplest of terms, unless the buyer has relied on something that the seller has said to them when choosing to enter into the contract, it cannot be said that the losses that the buyer has suffered were as a result of what the seller said; the buyer would have entered into the contract whether or not the information provided was accurate or not.
Recently won a property on an online auction where it stated the property was tenanted.
However, I managed to speak with neighbours and they mentioned that the property has been vacant for a while. I had also visited the premises and there were signs of it being vacant. Unfurnished when peeking through windows, loads of letters on the floor by the door, and the image of net/curtains on the auction site was exactly the same and had not moved.
As the handover is in process I was just informed by my solicitor that I now need to pay rent arrears which the supposed Tennant hasn’t paid.
A rental agreement was in place for 6 months which expired many months ago. Since then the property was sold to another buyer. And it is this new buyer I purchased from who has been the owner for approximately 2 months.
Thank you for your comment. Unfortunately without having had sight of the contract of sale or the auction terms we cannot say this for certain. However it may be that it is a term of the contract of sale that the buyer pays off any rent arrears. Moreover just that the tenancy is over does not mean that it has not become a statutory periodic tenancy.
If you want us to look into this then feel free to ring the Litigation team at our Braintree office.
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Hello,
The house I bought 4 years ago is showing signs of subsidence. I put a claim in with my insurer and it’s currently going through the process. The loss adjuster has visited and now it’s onto the next stage. I just found out from a neighbor that the brother of the former property owner and seller had previously put a claim in for subsidence, and that there was also an issue with the land bordering my boundary that resulted in a significant number of houses having to be demolished and rebuilt due to unstable foundations resulting in subsidence. It appears that the seller with held this information on the property disclosure documents. I believe the information that has recently come to light to be true, as it came from the brother of the seller (it was actually their mothers house and when she died they sold it to me).
The survey did not mention subsidence either, so perhaps this was overlooked at the time. Is this something that I can take to court? My insurance company tells me they can’t disclose previous insurance claims from other claimants due to data protection so I am not sure where I stand?
Thanks
Thank you for your comment. Firstly, before instructing solicitors to do anything, you should check the position with your insurers. You may have cover for legal expenses.
As for a claim for misrepresentation, there is no legal requirement for a seller to disclose anything about a property. If they withheld information about subsidence, this does not give rise to a claim. If, however, they provided information about the property either voluntarily or in response to enquiries and this information confirmed that there was no subsidence (or more likely, no insurance claim) then there may be a basis of claim against your seller.
You cannot hold a seller of property liable for anything if they have not provided information. You can only hold a seller of property liable for something if they provided you with misleading information that you relied upon when buying the property.
As for your surveyor, whether or not there is claim for professional negligence here will depend on what the surveyor agreed to do. This is normally called the professional’s “retainer”. If you instructed your surveyor to check for subsidence and they missed this, then there may be a claim if a reasonably competent surveyor would have identified it. The starting point for considering a claim would be the terms and conditions that you and the surveyor agreed in order to identify where the surveyor has breached their duty to you.
In terms of obtaining evidence of previous insurance claims, this is ultimately possible via a court application for disclosure. However, this is contingent on being able to show that there is a case to answer and that the person who has the information or documentation can assist by supplying it.
Thank you for taking the time to reply in such detail. Your information is extremely useful and is greatly appreciated. Regards, Merl
We purchased a ground floor apartment in Feb 2021 as part of a converted house (5 apartments in total) which is a leasehold.
During conveyancing on the TA6 the seller was asked did they know if any previous flooding at the property to which they answered ‘No’. We have experienced 4 internal floods (water comes up through services in heavy rainfall which has ruined the apartment causing over 10k worth of damage (leasehold building insurance covers this). We have since found out this has happened under the sellers ownership at least 4/5 times with the same flooring instance of water coming up through the services and ruining carpets, woodwork etc like in our case.
Question would be, have we got a case for misrepresentation against the seller for answering No on previous flooding. If they had answered honestly that 4 or 5 previous internal floods had occurred, we wouldn’t have entered into the contract.
We lived on concrete in damp conditions for 3 months and are both asthmatics who had to request additional steroid inhailers.
Thank you for your comment and we are sorry to hear of this.
From what you describe, there possibly would be a case of misrepresentation if you were able to prove the historical flooding. If you have good evidence (or potentially reasonable ground to make an application to the Court to obtain that evidence) that the property did have a history of flooding, then we cannot see why such a claim would not be successful.
However, by their nature, the questions and answers given in the TA6 (Property Information Form) are subjective. This is because they are designed to be answered by people who are not legally qualified. There is not a statutory definition of “flood” and what a “flood” is to one person, is a “leak” to another. We have come across arguments in defence of matters on this basis in the past. It often arises in relation to neighbour disputes, on the basis that people have differing views on what constitutes a dispute. Of course sometimes these things are very obvious; it would be difficult to argue that a foot of standing water in a house was not a flood. However, sometimes it is not so clear cut.
The case of Mc Meeking v Long [2003] involved argument relating to what constituted a neighbour dispute. We refer to it in our blog here…Property Misrepresentation Claims: Example Cases and Advice (cunningtons.co.uk). Whilst every case will turn on its facts, it does give an example of how a Court may approach the question.
To the extent that the property could be considered unfit for habitation, the Defective Premises Act 1972 might be relevant to consider. Broadly, this imposes duties on builders to construct or convert properties in a workmanlike manner and with appropriate materials.
Do feel free to get in touch if you would like to consider matters further.
We are selling a property in wales. We have had a few disagreements with a neighbour a few house up, this was almost 5 years ago when we first moved in about parking, this resolved and now we have a double drive so hasn’t been an issue for four years.
We had some work completed to our property in 2020 such as changing roof and doors where our neighbour complained to building regulations and planning council as they believed this was needed, the property was inspected and this was not required.
On our property form I have disclosed “yes” that the neighbour made a complaint to these offices about the required certificates and approvals, this was inspected. There have been no issues with the neighbour since. However just recently, we had a fairly friendly conversation with the neighbour who complained about our guttering, causing puddles in their pathway (they are local authority) tenants in flats and staying that our guttering is overhanging their airspace. However this is not as it’s within our boundary. I explained that I would clear leaves abs debris from the guttering which we have done and have not heard from them since.
Surely I do not need to update our buyers in this, as if there was a case of boundary this would be from the landowner, the council and not the tenants. We are considering having a quote to relocate the guttering just to prevent any further issues
Thank you for your comment. We are only able to provide general guidance on our website, which should not be considered an alternative to bespoke legal advice. We are therefore unable to provide you with a specific response.
However, by way of general guidance, you should discuss this with your conveyancing solicitor. If the standard TA6 Property Information Form was used, you will have read the guidance notes accompanying it, in particular those notes which appear on the form itself which read:-
“If you later become aware of any information which would alter any replies you have given, you must inform your solicitor immediately. This is as important as giving the right answers in the first place. Do not change any arrangements concerning the property with anyone (such as a tenant or neighbour) without first consulting your solicitor.”
If events during the course of the transaction arise and because of these, the information regarding that subject which was previously provided has become inaccurate or now gives a different impression of matters, the only “safe” option to avoid a potential argument in the future would be update the information already provided.
Sometimes a misrepresentation can occur when accurate information about something is provided but because of some other important fact which is relevant to this but not mentioned, an inaccurate impression of the factual circumstances is given to the buyer. This is not the same as not mentioning anything at all, in which case no misrepresentation arises.
Reliance is a constituent part of any misrepresentation claim. A buyer must have altered their position and relied on the representation/statement made when choosing to enter into the contract. If nothing is relied upon, because no information about that point has been provided, there can be no misrepresentation. If the representation/statement made is factually accurate on the face of it but because of some critical point which is not mentioned and it would be reasonable to have expected it to be mentioned, then a misrepresentation can still occur.
Put in the simplest of terms, unless the buyer has relied on something that the seller has said to them when choosing to enter into the contract, it cannot be said that the losses that the buyer has suffered were as a result of what the seller said; the buyer would have entered into the contract whether or not the information provided was accurate or not.
Recently won a property on an online auction where it stated the property was tenanted.
However, I managed to speak with neighbours and they mentioned that the property has been vacant for a while. I had also visited the premises and there were signs of it being vacant. Unfurnished when peeking through windows, loads of letters on the floor by the door, and the image of net/curtains on the auction site was exactly the same and had not moved.
As the handover is in process I was just informed by my solicitor that I now need to pay rent arrears which the supposed Tennant hasn’t paid.
A rental agreement was in place for 6 months which expired many months ago. Since then the property was sold to another buyer. And it is this new buyer I purchased from who has been the owner for approximately 2 months.
Any general advice would be appreciated.
Thank you for your comment. Unfortunately without having had sight of the contract of sale or the auction terms we cannot say this for certain. However it may be that it is a term of the contract of sale that the buyer pays off any rent arrears. Moreover just that the tenancy is over does not mean that it has not become a statutory periodic tenancy.
If you want us to look into this then feel free to ring the Litigation team at our Braintree office.