Misrepresentation In Property Sales: the consequences of not telling the truth when selling property

Buying property is a big investment for anyone, so it’s only right that the purchaser should be satisfied with what they are buying.

Likewise, the seller should be entitled to some comfort in knowing that once their property is sold, that is the end of the matter.

The Seller’s Property Information Form

During the conveyancing process, the buyer will ask the seller questions about their property. These are called pre-contract enquiries and requisitions on title. As part of the process of selling a property, the seller will normally complete a standard document called a Seller’s Property Information Form.

The idea behind this process is that the buyer satisfies themselves by asking the seller relevant questions, and the seller confirms that the buyer cannot rely on anything else apart from the answers the seller has given. This way, if the seller has been as upfront as possible in response to those questions, the seller cannot be held liable for anything else they say.

What happens if the seller’s information is not accurate?

Sadly, we see a lot of cases where a seller, sometimes unintentionally but sometimes deliberately, misleads a buyer by answering a question on the Property Information Form incorrectly – or partly incorrectly. The buyer then purchases the property and moves in, only to discover that what the seller’s information was inaccurate.

We have dealt with cases where a seller has:

  • failed to disclose existing disputes with neighbours;
  • suggested that a property does not suffer from a flooding issue when it does;
  • inaccurately maintained that the property does not suffer from Japanese knotweed when it does; and
  • stated that the boundaries are in one place when in fact they are not.

… the list goes on. We have also dealt with cases where a seller has believed that they were answering a question correctly.

In all of these cases, the buyer may very well have a claim for misrepresentation.

Misrepresentation is a false statement of fact which induces a party into a contract. It does not have to be the sole inducement, but the buyer would have to have relied upon it to bring a claim.

Depending on whether or not the seller innocently, negligently or fraudulently answered the questions wrongly in the Property Information Form, the buyer may be entitled to claim damages from the seller. In some cases, the buyer will be entitled to ‘rescind’ the contract. This means that the buyer is entitled to their money back and return the property to the seller. Primarily for practical reasons, this does not happen very often. You can view the Law Society’s specimen Property Information Form here.

What does usually happen is that the buyer is entitled to damages. Normally the measure of damages awarded to a buyer is based on ‘diminution in value‘, or the difference between what a buyer would have paid for the property knowing about the issue and what they actually did pay for it. This may not necessarily reflect the actual cost to the buyer in rectifying the issue.

Diminution in value

To give an example of how diminution in value is calculated, we have acted for insurers in negligence claims against surveyors who failed to identify that a property suffered from subsidence. The measure of damages was based on diminution in value. Sadly, the cost to the buyer in underpinning the property to stop the subsidence was greater than the actual loss suffered. This is because the property was situated in a highly sought after location with a large rental market.

Based on the fact that a hypothetical purchaser would have seen the property as an investment opportunity that could provide a return by renting it to tenants, rather than family home for life, the expert’s opinion was that a hypothetical purchaser would have been more likely to negotiate a smaller reduction in the purchase price than the full cost of the repairs, to make sure that their offer was accepted by the seller.

How can a seller ensure that their buyer will not bring a claim against them?

Sadly there is no way to be 100% certain that a buyer may not make a claim later. All a seller can do is minimise the risk of this as much as possible.

Although completing the Seller’s Property Information Form is not mandatory, it is unlikely that a buyer will proceed with the purchase if their questions are not answered.

Therefore when completing the Seller’s Property Information Form, the seller should answer questions as fully and honestly as possible. We often advise clients to think about what they would want to know about the property if they were buying it.

If a seller is not certain about an answer to a question in the Seller’s Property Information Form, they should think carefully about whether they want to answer it, or perhaps consider qualifying that answer.

What happens if the seller’s replies were accurate at the time they were given to the buyer, but by the time of exchange the information has changed?

Case law is clear that a seller is under a continuing obligation to ensure that their replies to enquires are accurate up to the date of exchange of contracts.

The Seller’s Property Information Form also specifically tells the seller that in the event that something happens which would mean that their replies are no longer accurate, they should notify their solicitor of this, who should in turn notify the buyer’s solicitor. If they don’t do this, the seller risks a potential claim against them for misrepresentation.

What if a seller knows something which is not specifically asked about by the buyer?

The basic position here is ‘caveat emptor’, or ‘buyer beware’. If a buyer does not ask the seller a question, they cannot then look to the seller for compensation if they discover something that they do not like about the property. It is up to the buyer to satisfy themselves that they want to purchase the property.

As the basic position in a property transaction is buyer beware, it follows that if no statement or answer is given by the seller, the buyer cannot be said to have relied on it to enter into the transaction.

Having said this, sometimes (but this is unlikely unless a special or fiduciary relationship exists) a misrepresentation can take place by a failure to mention something material to the transaction.

The moral of the story

Sellers should be upfront about any issues that affect the property and buyers should take all steps they consider appropriate to obtain the information that they want before committing to a purchase.

If a seller doesn’t know – or is unsure of – the answer to a buyer’s question, they should consider not answering the question.

However, by not providing a response the seller could be putting their sale at risk.

Sometimes the seller’s responses are qualified – but before giving a qualified response, it is important to discuss it with your solicitor, as a half-truth can also amount to a misrepresentation and require the services of a Litigation Solicitor.

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 substation 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.

35 thoughts on “My Seller Lied To Me!”

  1. I purchased a maisonette which was advertised as share of freehold. But after spending approximately £850 on search fees, conveyancing fees and valuation, my solicitor was informed by the vendor’s solicitor that there was no share of freehold even though the property was advertised as “share of freehold”. Due to this we had to pull out due to false information given. The property in now back on the market stating “leasehold”.
    I have evidence to prove this.

    Do I have a case to reclaim damages?

    Thank you.

    1. Hello Mark,

      We are really sorry to hear of the difficulties you have had, which must have been very frustrating.

      The basic position is that a claim for misrepresentation against a seller would only arise once a contract is completed. It is therefore unlikely that there would be a claim here, as you did not rely on what they said and go on to buy the property. It sounds as though your solicitor did what they were supposed to, which is to protect your position before you committed to buy something that you did not intend to buy.

      Sometimes a different sort of claim might exist, based on what is called a negligent misstatement. However, this depends on showing that there was a duty of care between the parties. Unfortunately, there is no general duty of care between a buyer and seller and it is unlikely that you would be able to rely on a claim like this. It is a very rare case indeed where a seller’s solicitor can be held to owe a duty to the buyer, and this is normally limited to circumstances where the seller’s solicitor has failed to check things, such as the right of their client to sell the property.

      We are sorry to say that from a legal point of view, it is quite unlikely you would be able to recover anything.

      A final option is to consider the Consumer Protection from Unfair Trading Regulations 2008. Depending on how the property was described to you, the estate agent may have breached their obligations and misled you. If they are registered as members of the Property Ombudsman Scheme, this could give you an avenue to raise a complaint. This is a free service for consumers and their details can be found here, along with a case study: https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/more-problems-down-below

      We hope this helps and wish you the best.

      (This is general advice only and cannot be relied upon in substitution of proper legal advice)

  2. I bought a flat last year, when making the decision to buy the flat I was told that a concierge would be on site in the management suite. This was also confirmed in all marketing documents. A year after buying the property the management suite has been sold off to a Lettings agency and the residents have been told that there will not be a concierge and if we want one we will have to pay more in service charges, although they originally said this would be inside our charges.

    Unfortunately, I am not the only person to have been told this. I feel that not having the Management suite and Concierge has drastically devalued my property. Would this be deemed as Misrepresentation?

    1. Thank you for your query.

      There may be some issues here to explore but we would be hesitant to say that a claim in misrepresentation exists against the seller. The reality is that most contracts for the sale of property are conducted using an industry standard set of terms. If this was a new build purchase direct from the developer, they may have used their own contracts, however the same point will most likely apply.

      The contract of sale will almost certainly contain what is called a “whole agreement” clause. This is a contractual clause in which the parties agree that unless something is in writing in the contract, in this case that they promise to keep the management suite and concierge on site for a particular period of time or a particular cost, then the other party is promising that they did not rely on any oral representations when entering into the contract. This may seem unfair but the intention behind it is to ensure that there is certainty for the parties moving forward. It means that both of the parties can feel confident that no claim might exist against the other for things said and which are not incorporated into the contract. In short, if this was something that was vital to you as a contracting party, the law would say that it would have expected you to ensure that it was incorporated as a contractual term.

      This matter is a little more complicated insofar as what you are talking about is likely the obligations under the term of the lease for the landlord to supply these services. It would be unusual to have a fixed cost to the provision of specific services, as the cost of providing the services may rise or fall.

      I hope this is of some help, although probably not what you wanted to hear. I would certainly advise reviewing the terms of your lease to see what obligations there may be on the landlord.

      (This is general advice only and cannot be relied upon in substitution of proper legal advice)

  3. I bought a house and was told on the property information form that the house had never suffered flooding which is false. The neighbours have confirmed all the street was flooded. I would probably not have purchased the property if I had known the truth or at least not at the asking price. I would like to know what I can do

    1. We are sorry to hear of the difficulties you have encountered. Failing to disclose historical flooding of properties seems to be a growing problem.

      Every case and every client is different, so in terms of what you can and should do, this does depend on the precise facts of the matter and what you are looking to achieve in terms of an outcome.

      Whilst the obvious answer is normally that a client wants the maximum compensation possible, as “rescinding” the contract is not normally an option (rescission is where the contract is “reversed”), there can often be arguments about the level of that compensation.

      Broadly the loss you have suffered is going to be the difference between what you paid for the property and what a reasonable person would have paid knowing about the defect, in this case, the flooding. Put into context, a property in a high demand area is less likely to suffer a loss of value than one in an area where there is low demand, even if the properties suffer from the same problem. Therefore, some evidence about what the value of the property with the defect disclosed might have been at the time of purchase, factoring in market conditions, might be important to obtain.

      Case law on the subject explains that the Property Information Form is designed for a layperson to answer. As there is no statutory definition of “flooding”, this leaves open the question of what does or does not constitute flooding. Put into context again, some water retention in soil following particularly heavy rainfall could lead to an argument about whether or not this constituted flooding. This is a point which we have dealt with on other cases.

      Having said this, the basic position is that if you relied on the answers when entering into the contract, and those answers were factually untrue, then there is a potential case for misrepresentation.

      If you would like to get in touch with someone in our Litigation Department, please do not hesitate to contact us and we will give you an idea of the sort of work involved in matters like these.

  4. Hi, we have just moved into our new house and on having the cooker installed our electrician has major concerns about recent additions to the electrical system that are unsafe. He has condemned the electrical system and has said it will cost £4k to test and redo. Our buyers stated on the Property Form that there had been no electrical work since 2006 and therefore no certificates. It is clear now that there have been fairly extensive substandard electrical installations carried out right until recently. would we have any recourse, we just would like the electrics done as we hve young children but do not have the money to pay for it?

    1. You may have a claim here but for two reasons, you might have some difficulty pursuing it.

      The first reason is one of evidence. Whilst your electrician seems to say that works were carried out recently, some better evidence of this would be required. A misrepresentation does not occur unless what someone says is a “false statement of fact”. If you cannot prove the works were carried out after 2006 (or 2005, as the property information form asks), your claim is unlikely to be successful as the statement made would likely to be found to be factually true.

      The second reason is the fact that you appear to have accepted the risk that there were no installation certificates, irrespective of when any works were carried out. It is possible for claimants to contribute to their own loss by doing or not doing something. Sometimes, a person can cause their own loss entirely, reducing their damages to nothing. Sometimes that act or omission may break what is called “the chain of causation”, effectively meaning that this act or omission was the cause of the loss.

      It is not possible to predict what the outcome of any case would be. We also have to qualify what we say here on the basis that we are unable to give legal advice on this forum and would not be able to provide more conclusive advice to a client without a better idea of the facts of the case. However, from what you have written, we can see a reasonable argument to say that armed with the knowledge that there were no installation certificates (because you believed that there weren’t any, because the works were completed before 2005 when they were not required), it was up to you to decide whether to accept the risk that the works were not compliant with legislation, withdraw from the transaction or seek some sort of agreement with the seller about what to do. It is possible that a Court might ultimately decide that you accepted the risk and proceeded with the transaction in light of this, which cannot be said to be the seller’s “fault”.

      Further, for a claim of misrepresentation to exist, there must be reliance on the false statement of fact. It does not have to be the sole inducement to enter into the contract, but it must have contributed to the decision. The Court will consider whether the true facts and those as represented would have induced a reasonable person into the contract. We see there being a possible argument that you would have proceeded with the purchase anyway, and therefore did not rely on the statement. If the position that the seller adopts is that the statement was substantially correct, in terms of the fact that no installation certificates existed (either because the works pre-dated this requirement or they were not professionally undertaken), this may provide a reasonable defence to the seller, which the seller could use in addition to the points on contributory loss above.

      We are sorry that we cannot provide more positive news, but if you did want to consider your matter in more detail with us, please feel free to get in touch and we can advise you of any fees we will charge to assist further.

  5. We have exchanged contracts and some new information has come to light, property has been converted to two semis from one large property, this has not been signed off by building control, council tax do not have it registered as such, there are no utilities even though seller said they were and just needed to be re connected. There is a dispute between neighbour and seller regarding boundary and no land registry or title deeds after 8 months. Our searches came back to say we are on mains drainage it now looks like we are on a shared septic tank, which the seller has not looked after for a long period of time, new regs for 2020 suggest this could need a complete replacement at a substantial cost. The seller demolished a room of the property without proper consultation with us after exchange leaving a wall with doorway open to the elements which has resulted in water damage. There is still a charge on the property and neighbours have said that on their part was not lifted after their completion, obviously this is extreamly concerning for us.
    This is a total mess.
    Whats our next step?

    1. We are very sorry to hear of these difficulties, which sound very stressful indeed. You have mentioned quite a number of potential issues, some of which should have been addressed prior to exchange. Some of the points you mentioned would not ordinarily give rise to concern, for example the charge you mention would ordinarily be redeemed on completion and the seller’s solicitor would normally provide an undertaking to do this.

      We can really only provide some broad opinion on the position and in short, there may be elements of misrepresentation here. You may also a contractual remedy under the standard conditions of sale if any statement in the contract or negotiations leading to it were inaccurate. If completion has not yet taken place and the error or omission is as a result of fraud or recklessness or you would be obliged to accept a property which differs significantly from what the error or omission led you to believe, then you may be able to rescind the contract. Rescission is effectively a cancellation of the contract of sale. This is a fairly extreme remedy and does not happen in practice very often. A claim for damages is normally the route to be undertaken and it may be the case that some negotiation can take place prior to completion to agree a variation of the contract to reduce the purchase price to settle the potential claims.

      We may be able to assist you but your first port of call is certainly to raise your concerns with your solicitor and obtain advice.

  6. We noticed a small damp patch in a bedroom before we bought a new build house. We raised the issue with the sellers, and asked them dirctly if it was damp. They said it was simply ‘wet paint’ from snagging done earlier that day. Content with their answer, we bought the house. Two weeks later, the patch re-appeared after rainfall, and has now grown much much worse. Turns out there is major structural issues with the roof.
    Even worse, the new build warranty will not cover the cost of the work because there is an exclusion in relation to ‘Prior Knowledge’ which states: ‘Anything which would constitute a valid claim under the policy and about which the policyholder was aware prior to purchasing the Housing Unit’. Because we raised it as a potential issue before purchase, we have no claim.
    Is this a possible case of misrepresentation?

    1. We are sorry to hear about this, which must be extremely frustrating and disappointing.
      From a misrepresentation point of view, this is presently difficult to advise you on. A lot of new build developers use their own terms and conditions or heavily amend the standard conditions of sale. On the assumption that some of the relevant standard contractual clauses were incorporated into your contract, then all representations, unless made in writing, would be contractually excluded from it. This would prevent them becoming contractual terms or amounting to misrepresentations. The reason for this is so that both parties can point to a single document as evidence to what terms were agreed between them. I cannot imagine that the developer would have excluded terms to this effect. If something has been put in writing during the course of negotiations, then there may be better scope to argue misrepresentation.
      The exception to this if the representation was made fraudulently or recklessly. Fraud is very difficult to prove, as it effectively requires proving that there was a deliberate attempt to mislead. As for recklessness, this is not as difficult as fraud to prove but will turn on whether or not the statement made was done so recklessly. To what extent was the person with whom you spoke justified in explaining it was wet paint? It may very well have been a reasonable assessment to make, painting having taken place that day.
      If you had a survey undertaken, you might have some scope to claim that your surveyor was negligent in failing to advise you of any defects. Professional negligence claims against surveyors turn heavily on the scope of their instructions and contractual terms and conditions.
      Have you spoken with your insurers already? If not, we would suggest doing so. Whilst obviously you were aware of a damp patch and were informed that it was just wet paint, whether or not this amounts to a material non-disclosure entitling them to decline cover is another matter. You believed that it was wet paint and had no notice that the cause was a structural defect.
      Even if your insurers decline to cover you, you might still have a claim against the developer. Under the Defective Premises Act 1972, a developer generally owes a duty of care to the purchaser to carry out the construction in a workmanlike/professional manner, using proper materials and ensuring that the property is fit for habitation once completed. You would probably need expert evidence to identify the defect and cost the proposed remedial works to prove a breach of these obligations and the loss you have suffered.
      Whilst only general advice, we hope this is of some assistance. Do feel free to get in touch with us if you would like to explore the position further.

  7. We bought a small holding with a holiday let, prior to sale we were not allowed in the holiday let as it was rented out but the surveyor did go in. Anyway after completion we noticed it stank, we opened windows but realised the next day something was wrong. After looking we found mouse poison everywhere in cupboards and called in pest experts who confirmed there was evidence of mice in the loft. Fast forward two months and the entire loft insulatoon has been removed with 15 dead bodies and live ones caught. Also underneath the let are garages and they were in the insulation there, the kitchen was removed as heavily contamined with faeces etc. On the buyers form when asked if the council has ever been contacted the buyer put no, we found out that his prior tenant in 2018 had the council out twice when he complained mice were in the flat, they just laid bait traps. The tenant has offered to stand in court without us even asking. So the buyer knew about this problem and lied on the forms.

    So far this has cost us thousands and the problem is ongoing , we bought this place to get revenue from the let. I was told I should get a surveyor to provide a valuation with this factor known before sending a letter before action so you have a professional view. There is also the issue of how do we let this place out in the future as it’s a converted stable loft area and impossible due to design to fully seal. Bu now we should have been renting it out for two months let alone loss of future revenue. I would rather have the contract rescinded as also there is the problem when we come to sell it ?

    1. Hello. What a disappointment and inconvenience you have suffered and we are sorry to hear about what has happened.

      Firstly, it’s important to understand that rescission is not guaranteed and if completion has taken place, it is considerably more likely that a Court would only award damages. This is primarily because of the impracticalities involved in reversing a contract for the purchase/sale of land when damages would normally be an adequate remedy to compensate you for any loss.

      Case law establishes that the property information form is designed for a layperson to understand and complete. This broadly means that the Court will consider what a reasonable seller would have understood by the questions in the form and consider the answers given in this context. We assume you mean that the seller, in answer to question 3.1 of the property information form, said “no”, no notices or correspondence had been sent to the council, when in fact the seller was aware that correspondence had been sent to the Council (presumably because the tenant raised this with the seller). It may be the case that the Council has issued notices which prove this.

      The other question to check in the property information for is the answer to question 14.4(a), which asks the seller whether or not the property will be left in a clean and tidy condition. Obviously this is a reasonably subjective question, but there may very well be scope to say that leaving a property in a condition where it remains subject to an ongoing infestation of mice is not clean and tidy.

      As for the physical state of the property itself, which seems to make letting it difficult moving forward, this is unlikely to be anything that you would be able to obtain damages for. The standard conditions of sale, which are likely to have applied to your purchase, broadly say that a buyer accepts the property in the physical state it is in. There may be some scope to make a claim against your surveyor, but this would turn heavily on the scope of their instructions and what they were asked to do or advise on. We would be surprised if your surveyor agreed to check for rodent infestation which did not affect the structure of the building or that the property was suitable to be let. Their instructions are normally to advise on the structural integrity of the property and, when instructed by lenders, that the property represents good security for the mortgage provider to lend money against.

      The aim of damages in cases of misrepresentation is to place the aggrieved party in a position they would have been had the misrepresentation not been made. Therefore the measure of damages may not necessarily be the full loss you have suffered, as damages will primarily be based on the difference in value of what you paid for the property and what a reasonable person would have paid had the issue been known about.

      Before you spend any money on an expert, you might want to check that the report, once produced, would comply with Court rules.

      Whilst we cannot give advice, as we do not know exactly what the situation is, we hope that our reply is of broad assistance to you. I you would like to consider the matter in more detail, please do feel free to get in touch with us.

  8. Hi,

    We are in the process of exchanging on a property. Throughout the process the seller and agent has maintained that the loft is demised. Shortly before exchanging contracts I pressed on the subject directly with the freeholder, who advised the loft isn’t demised.

    The seller had cut and paste an excerpt from an email from the freeholder implying the loft was demised, omitting the information that it was to be used for storage only. I have completed on my current property and have to move out at the end of the month. I now believe that the property price is below what was agreed. The estate agents have not covered themselves in glory as the advert does not state the loft is not demised, just that consents are required.

    What action can I take?

  9. Hi. We purchased a property but found that the kitchen had a bad leak and the floor is rotten. The seller stated a repair was done through insurance but guarantee had expired. We now discover that the repair may have been a DIY job by the seller and no professional repair was done. I have made a small claim through MCOL for the leak repair, vermin, rubbish and unsanitary state house was in but if mediation doesn’t succeed I will apply for a non party disclosure to their insurance company. Plus documents they have sent to the court show leak claim was June 2012 and not as stated on PIF as Sept 2013. Would we potentially have a misrepresentation claim? Many thanks

    1. Thank you for your enquiry.

      The first thing to understand is that it would be for you as a Claimant to prove that what was said was a misrepresentation. Expert evidence to prove that the work was not undertaken professionally would probably be important, if this is the thrust of your claim and the basis of the misrepresentation. What is important to show is that there is a link between what you were told and what you relied on when entering into the contract.

      You also mention an application for disclosure against the seller’s insurance company. Whilst we obviously cannot advise anyone on a forum such as this, you may want to consider whether or not this is the right application to make. Normally, the third party would be entitled to their costs of dealing with the application. Before you expose yourself to this risk, some thought should be given to asking the seller what insurance documentation they have. Perhaps an application for specific disclosure would be more appropriate.

      If you do intend on making an application for third party disclosure, it is very much worthwhile being very specific about the documentation you want. There are cases where the Court has awarded very high costs on the basis that the documentation sought was very wide. Constantin Medien AG v Ecclestone [2013] EWHC 2519 (Ch) provides a good overview of the criteria that the Court takes into consideration: https://www.bailii.org/ew/cases/EWHC/Ch/2013/2674.html

      You do not mention whether or not you have your own buildings insurance. It may be worth checking to see if you have legal expenses cover under this, as well as cover for the repairs.

      Mediation is certainly sensible and, if the claim is in the Small Claims Case Management Track (colloquially called the “Small Claims Court”) you might find that making a small financial concession at mediation is a cost-effective outcome.

  10. My partner and I purchased a house 7 months ago. We have had major issues with the next door neighbours and their dogs who jump and bark at us at the fence. Left out all day etc. We tried talking to them about it several times but it devolved into nastiness from their end. I have health issues and this stress lead me to be hospitalised. Apparently they were friends with the people who owned the house. I also found out that the same neighbours (with the dogs) had been having ongoing dispute issues with parking with our other neighbours. The people who sold us this house would have known about this too. They also said the boiler had been serviced and it broke in two weeks and had to be replaced.

    If we had known that these people were obnoxious and had historically annoyed other neighbours we would have never bought the house. We are looking at selling the house, have put in a new boiler, driveway and brand new bathroom. It has raised the base value. However due the issues we are concerned that we won’t get the money back. The estate agents are confident it will sell and it has increased in value.

    Can we go back to the sellers for seller misinterpretation if we can’t sell the property?

    Recently the neighbours have calmed down and started controlling their dogs. I’m hoping this will not be an issue when we sell.

    1. Thank you for contacting us. Whilst we can’t give legal advice on this forum, looking at the situation based solely on your comments, it may be that your seller at the time had no particular issue with the neighbours dogs or with parking, and did not feel it warranted mentioning on any legal documentation. If this is the case it would also be difficult to show any intention to misrepresent the situation to you, and as yet you have not suffered any financial loss.

      However, if you have difficulty selling or do not achieve the desired (realistic) price then you may potentially have a claim but you’d need to consider carefully the cost of pursuing that against any likelihood of success.

  11. I bought a house two months ago. During the viewing process of a property, the underfloor heating system in one of the rooms sprung a leak. I was advised by the estate agent that the seller will have it remedied before the house was sold. When the sale of the property was going through my solicitor requested a warranty for the works and we were supplied with a guarantee for the work undertaken by an Underfloor heating company.
    Although there was a ‘warranty’, It transpires the leak wasn’t fixed, but the underfloor heating system was removed, the floor re-screeded and new floor tiles put down. Sure enough, the company did work to the underfloor heating, but not corrective work. I now have a room with no heating. There isn’t even an option to install a radiator in that room as the rest of the ground floor is underfloor heating. The only way to remedy it is to dig up the floor and re-instate new piping.
    In the Law and property form, the seller claimed that a floor had to be replaced due to leaking an underfloor heating system. He stated this formed part of an insurance claim and that the claim was successful and remedial works completed successfully.
    I’ve emailed the seller and his solicitor and I’m being advised from his solicitor that there is no response from the seller. Do I have a claim?

    1. Thank you for your query. Before we can respond in any detail, it would be best to speak first. After this, we would most likely need to have a better consideration of your conveyancing file to see what was put in writing during the transaction itself and leading up to exchange of contracts.

      If you have purchased something which is not what you contracted for, then there is a potential claim for breach of contract. However, this can be vitiated by the terms of the contract itself, which normally incorporate what are called “the standard conditions of sale” and which say that a buyer purchases a property in the condition it is in as at the date of the contract (i.e. exchange).

      As for misrepresentation or potentially a negligent misstatement, these are also possibilities. A misrepresentation can occur even if the “truth” is told (i.e. that repairs were undertaken) but it is misleading because of what was left unsaid (i.e. that the underfloor heating was no longer working). As for a negligent misstatement, a seller does not normally have a duty of care to a buyer. However, in some cases, a duty of care can be imposed, particularly if there was an assumption of responsibility on the part of the person making the statement. This is unlikely to be the strongest basis upon which to build a claim but it is a point which we can explore in more detail, as it would be very fact specific.

      Please do get in touch with us at https://cunningtons.co.uk/contact/ and we can give you an idea of what steps are likely to be required and the sort of cost involved.

  12. I had my offer accepted over a week ago, and I have instructed my solicitor to complete the sale. I have taken out a re-mortgage loan to pay for this, which has now been released to me. We brought the property based on the fact it had lapsed planning permission to build an additional bungalow in the garden; we paid well over the asking price to ensure our offer was accepted as the estate agent was informing us that we would need to pay higher, as they have received numerous high offers.

    I have found out today; over a week into the sale, that the lapsed plans never even existed, this surely would mean that the property is worth much less than the offer was accepted for.
    It was advertised on the particulars, the board outside the house as well as on right move that it was a property with lapsed planning. It stated on all of these that there was great potential to build a bungalow on the land.

    Is there anything I can do as I have now taken out a re-mortgage that is now sitting in my bank and will be having to pay monthly for this. As well as having to pay the solicitor for their time spent.

    1. Thank you for your query.

      It sounds as though you may have been misled but have not entered into a contract to purchase the property. From what you describe, your solicitor has undertaken some preliminary enquiries in respect of the property and discovered that it did not have the planning permission you were led to believe.

      If you have not exchanged contracts, then you will not have been “induced” into that contract, as no contract to purchase the property exists. A misrepresentation claim cannot exist unless a contract is entered into based on something that the other party says which is not true.

      If contracts have not been exchanged, we would be very hesitant to suggest that there is any sort of claim. Further, if you do exchange contracts, you would be very unlikely to have a later claim for misrepresentation, as you will not have relied on what was said about the planning permission when entering into the contract, as you know the truth of the matter. Further, if you have not exchanged contracts, then you have the option to make a decision about whether or not you want to proceed or re-negotiate the purchase price.

      If you have exchanged contracts but have not completed, then there may be some scope here for you to rescind the contract, depending on what was said leading up to exchange. You should certainly discuss your options with your solicitor.

      A final point to note is that in order to claim any loss, that loss must be “reasonably foreseeable”. This means that at the time the contract was entered into, the seller knew or ought to have known that the property was being funded by way of a remortgage.

      We are sorry to say that it is unlikely that there is a claim.

  13. Dear all,
    I would really appreciate if you could give me an advice.
    We moved 2 months ago in new maisonette. When we bought it, we asked seller about noise from upstairs, like steps or voice. Seller said that it’s quiet property. It was very important for me, because we used to live before in flat with poor insulation.
    When we moved we recognized, that there is no insulation at all! I can hear everything, even my neighbors conversation. It’s ok in day time, but their steps at night waking me up. And my neighbor can speak very loud at night, and I couldn’t sleep. Even my baby is waking up. This neighbor upstairs is sellers cousin. Seller of course didn’t mention it, and I think he asked neighbor be quiet when someone came to see the flat.
    Can I do something with that?

    1. Thank you for your post.

      In terms of what can be done, asking the neighbours upstairs to be more considerate may be a starting point. Whilst a solicitor could potentially write to them, good neighbourly relations may be prejudiced if a solicitor is instructed right away. A dispute with a neighbour is something you would have to declare when it comes to selling your property. This is more of a practical than legal consideration. You should also consider the terms of your lease, as there may be a mechanism within the lease to deal with this situation.

      As for a claim against the seller, this will depend very much on what correspondence regarding the point took place leading up to exchange and completion. Short of asking for details of any disputes with a neighbour or details of any complaints the seller has made against or received from the landlord or another other neighbour (and it may be the case that there was no dispute or complaint), the Property Information Form (TA6) and Leasehold Information Form (TA7) which are normally used in transactions do not specifically ask any questions about noise. Even then, what does or does not constitute noise nuisance is to an extent a matter of opinion.

      A misrepresentation claim can generally only exist if there is a false statement of fact. Therefore we would be hesitant to suggest that there is potential recourse for a claim against the seller.

  14. We bought our first house this year. In the TA6 form, the seller ticked”to follow” for the guarantees for “windows, roof lights, roof windows or glazed doors”and for “electrical work”. He never sent these guarantees to us, and has failed to respond to numerous emails from us and our solicitor. After moving in we have had to get the RCD changed and the electrician said the house would need a full rewire. Also the windows have been installed incorrectly and lack insulation around them.
    In addition, while the seller didn’t tick the roof guarantee box in the TA6 form he did send us a written email prior to completion saying that he would forward the guarantee for the flat roof on the extension behind the house. Now we have started noticing damp patches coming through the ceiling.

    Do you think we have recourse for any of these issues? Thank you

    1. Hello Dave, your message has been passed on to our litigation partner Mark Taylor and he will reply when he has a gap in his schedule.

      Let’s hope he can help you find a way forward with your property issue.

    2. We are sorry to hear about this. It must have come as a disappointment to move into your first home and discover these issues.

      There could be a claim for misrepresentation here but it might be vitiated to a degree depending on what was done to chase up these guarantees before exchange and completion and what the guarantees in fact cover.

      Certainly there is scope here to say that you relied on these representations that they would be supplied and it is arguably implicit that the guarantees existed. If no guarantees in fact exist, then the representations were obviously false. However, if you proceeded to exchange and complete without having seen the guarantees, this may lend itself to the counter argument that you did not rely on them being adequate to cover the remedial works required, that they remained valid (as most guarantees will expire eventually) or even existing at all.

      Whether or not the guarantees exist and what they cover is going to be important for any claim. If they do exist, then there is probably little scope for any sort of claim if they are subsequently provided, even if the guarantees are out of date or do not cover the remedial works required. Guarantees do not state what the condition of the property is in, this is what a surveyor’s report is generally for. Further, the standard conditions of sale that normally apply in residential conveyancing expressly state that it is for the buyer to satisfy themselves as to the condition of the property they are purchasing.

      If the guarantees do not exist, then there may be better scope for a claim. Why would someone suggest that guarantees existed when they did not, other than to lure a person into a sense of security before entering into a contract. In theory, there could be a claim based on what a “normal” guarantee would cover and that, so far as any of the remedial works required now would have been covered by such a “normal” guarantee, this is a loss that you have suffered. It is possible that you would need to obtain some evidence of what a guarantee would normally cover, and this might be by way of input from a suitably qualified expert.

      You might want to also consider asking your solicitor why they did not follow up on this. You might also want to look at any surveyor’s report undertaken, as this might have failed to disclose issues or defects which have now become apparent.

      We would be happy to look into the position for you in a bit more detail. Please feel free to get in touch.

  15. I recently bought an auction property last month. The buyers pack says house is being sold vacant. However i asked asked my solicitor to confirm house is vacant before closing, she said it was confirmed that house is vacant. After conmpletion, i went to get keys from agent. When i got to the house only to find the keys cant open front door. Then proceeded to the back door found the lock broken as i entered the kitchen was greeted with a bed . Then found out there are several others living in the house. Met one guy who said he was renting from a guy. I ask to have a look at his lease, he has none. Agency i purchase from said they had no idea. Seller did not disclose that info. What should i do at this point. I am so disappointed and stressed out.

    1. You should get in touch with your solicitor immediately to provide you with advice regarding evicting trespassers. It is likely that the police should also be contacted to see what, if anything, they are able to do. In some circumstances “squatting”, this is taking up occupation of a residential property without permission, is a criminal offence.

      We cannot be sure of the position, namely whether or not the occupants are there pursuant to an existing or expired agreement with the seller of the property or, for example, if they broke into the property to take up occupation. This is a point which must be established as soon as possible so a decision can be made regarding what needs to happen and the options available. Whether or not an agreement ever was or is in place (such an agreement does not have to be in writing) will affect the rights you have and procedures you need to follow, which could range from changing the locks whilst the trespasser is out or starting court proceedings. All action carries with it risk and we cannot advise you on the options available without investigating the position in full.

      We would never recommend to a client attempting to remove squatters themselves. Aside from the obvious risk to personal safety, physically removing anyone from residential property can be a criminal offence. Likewise, if it is not clear whether or not the previous owner’s permission was ever given, taking self-help measures like changing the locks could lead to claims of unlawful eviction. In all matters such as these, the safest option to safeguard against potential claims which can be made against the property owner is to start the appropriate court proceedings.

      If the occupiers are there pursuant to an agreement with the seller, then the auction pack might very well contain a false statement of fact, leading to a misrepresentation claim against the seller. However, auctions are very risky for any purchasers and a careful consideration of the pack and the auction terms is required. A “normal” possession claim would be the means by which to evict an occupier who is there pursuant to the existing or expired permission of a property owner. This is normally something this firm can offer on a fixed fee basis.

      If the occupiers are not there with the permission of the previous owner, then they are likely to be trespassers. As mentioned, there are certain ways in which trespassers can be dealt with but the safest option is to make a possession claim against trespassers or, subject to the time which has passed since you became aware of the issue, apply to the Court for what is called an Interim Possession Order.

      Do feel free to get in touch with us if you would like assistance.

  16. We have just moved into a new home. The house was a tip when we arrived. It took 4 of us a day to just empty the shed of rubbish. We’ve done about 8 trips to the tip so far. I used up 3 days annual leave just to clear the place. It was very upsetting. On the fixtures form the seller stated that various items were included/existed. She has taken everything, the light fittings, the tv aerial, the burglar alarm (although that might not even existed but we were excited to see the answer was yes on the form). We asked our solicitor to include a list of these items in the contract. Do we have a claim for breach of contract or misrepresentation or both?!

    1. Thank you for your query and we are sorry to hear about this. Moving into a new home only to be greeted by a property which is left in a terrible state would be upsetting.

      If items are included in a sale but not left, then there may very well be a claim for breach of contract. Saying that items exist but not including them in the sale would probably not amount to a misrepresentation or breach of contract unless they could be considered fixtures and integral to the building itself.

      As for the state that the property was left in, question 14 of the Property Information Form asks the seller to confirm whether or not they would remove rubbish from the property and leave it a clean and tidy condition. If they have not done this then there may be a claim for misrepresentation.

      The value of your claim sounds as though it could be below £10,000. This broadly means that even if a claim was issued, you would not be able to recover your legal costs. As we undertake a large number of transactions for our clients, we do assist them when this sort of thing occurs and we can normally agree a fixed fee for advising and assisting with any initial letter before action.

      Do feel free to get in touch with us if you would like us to assist you.

  17. Hi, we are desperate for some advice and don’t know what to do, any advice would be greatly appreciated please

    We viewed a house in September 2018, put in an offer for £10,000 over as we loved the property so much. We only put our house on the market for this one.

    The local search report flagged moderate to high risk of subsidence so we had a mortgage valuation survey done in the October which we paid £550 for, we sent our mortgage advisor the local search and asked his advice, he said to see what that said and when it came back it stated no signs of structural movement and it said didn’t warrant further looking at so we relied on that and did not instruct a further survey.

    He also said the house was mortgageable and was worth £305,000

    The mortgage company lent us £125,000 on this basis for the property which was purchased for £305,000

    The house is a 4 bed semi detached, with a rear extension, conservatory, side extension of bath room built in 2008 and a side storey extension built in 2014 and a porch.

    We finally moved into the property in March 2019 and In September 2019 we noticed cracks in the ceiling in the right hand side extension, outside the house and on further investigation there were more cracks showing inside that have got worse over the last 4 months

    We contacted the builder who did the 2014 extension and building control, who came out to see us he wanted to stitch the bricks and see what happens. After that we found that the planning permission was for a 2 storey extension including the garage extension (we also found that the foundations were recommended to be to the chapter 4 building near trees and 2.4 mtrs minimum depth), the building control certificate was only for the bedroom and ensuite not the garage so that has no certificate

    We obtained the building control logs and it showed there was an original garage raft from 1996 a rebuild due to subsided drain, and that the builder could notget the raft out so questioned if it would take the increased load – he was advised to get a structural report (he told us this took 6 weeks – we have no details of who), however building control signed off the foundations within a week.

    We contacted our house insurance, legal and general who had surveys and bore holes done and confirmed that it was bad workmanship and the foundations should have been 2.4mtrs deep and were 500/800 and 500mm on the 3 sets of extension foundations on the right hand side of the house and there’s hawthorn roots from the trees In the quarry nature reserve next to us that go down 2mtrs (the insurance have declined to deal with it as they are saying bad workmanship, we have years of continuous cover)

    On further investigation we discovered that in the conveyancing documents the people we brought off said there was a garage and extension in their legal documents TA6, then only supplied the building control certificate for the bedroom and ensuite, then when asked about the garage extension, they said it was there when they moved in in 2006. On google earth from 2009 and 2012 and the online estate agent brochure from when they brought it, it clearly shows it is not the same garage.

    Building control logs confirm this and so do the neighbours and photographic evidence. The vendor also stated they were unaware of any planning breaches.

    There are cracks everywhere now even in the main house, you can clearly see where there has been previous filler from subsidence cracks around the windows, along the ceiling etc and outside, the extension is pulling from the main house. The insurance company surveyor said if the problem isn’t fixed in 6 months this is what happens and said he could clearly see the filler etc was pre purchase..

    Also we found when looking into this further, that in the estate agents brochure from before we viewed the house, there is a subsidence crack on the right hand side garage pillar. We have a picture taken before we completed showing fresh pointing up which our mortgage surveyor missed and we only noticed this when we discovered the cracks last September and stated investigating.

    Also the vendor had things stacked down the side of the house when we viewed and in the estate agents photos – we now know this covers previous bore holes and a lintel and the old garage raft. The estate agents had a 4K video done of the house to sell it and you can see and they commented, it was like a show house when we brought it it was beautiful

    We have found wood and metal paint in the shed which is for the ensuite and you can clearly see where they have filled cracks the filler is falling off the walls and the wallpaper has come away.There is foam filler in a 25mm dip in the front room in the main house and only the previous owners could have done this as they had the front room extended

    The rear extension is also affected and also the conservatory had water run down the walls in September in heavy rain, the neighbours have advised us that the foundations there are only 500mm and they remember our sellers having this problem also – this currently has a temporary drain on it

    The seller also stated the porch didn’t need planning and was under 3mtrs – its is 3.2mtrs
    Her brother lives down the road and he saw me the other month and asked if we had had building work done or any structural work to the house.

    We were lead to believe that the new house they were buying that is next to their daughter in Cheadle was in their names, land registry says the house is in her daughters name and we know they have had 2 large extensions built on both houses and both houses are in her daughters name
    Surely this is fraud, we had legal cover through coplus and they have just declined the claim due to our sellers not having chargable assets but we are pretty sure that they have been spending and getting rid of our money and 100% knew about the problems with the house and lied to us to buy it

    Please do you know how can this be right?? how can someone take someones money fraudulently and get rid of it like this? this is everything we have worked for we are absolutely devastated and do not know here to turn next

    1. Hi Amanda

      Thank you for your post. We can’t give any specific advice on this blog. We can give some general guidance but it is not a substitute for instructing a solicitor to look into the position in detail.

      We are sorry to hear about this. It must be an extremely stressful situation. You have identified a few points which would need further investigation. Firstly, the scope of the survey and whether or not the surveyor complied with their contractual and common law duty of care is worthwhile considering. Surveyors will have insurance in place in the event that they breach their statutory or common law duty of care to a client. However, it does seem that the survey was undertaken for the benefit of the lender and probably contains a statement to the effect that it should not be relied on by anyone else, which might cause problems. Normally a purchaser would be well advised to undertake a full structural survey for themselves, particularly if the searches reveal a risk of subsidence.

      As for a misrepresentation claim, from what you have described it does seem that there could be a deliberate concealment of facts relating to historical movement in the property, specifically what seems to be a newly constructed garage, due to subsidence, possibly caused by the hawthorn roots but possibly by structural defects or a combination of both. The basic position is that it is “buyer beware”. If questions were not specifically asked of the seller, then no responses would have been given which would constitute misrepresentation. The suggestion that the garage was there, which is why there was not a building control certificate, may be your best prospect of bringing a claim.

      It would not be unusual for your legal expenses insurer to decline or withdraw cover in respect of this claim. Whilst this must be frustrating, there would normally be a clause in the insurance policy that says when there is less than a 50% prospect of recovering damages, for example, if the other side does not have sufficient assets to pay, they are entitled to withdraw cover. Whilst you believe that the properties are in effect owned by your sellers but in someone else’s name is not conclusive of the point. The Court always approaches matters objectively and there could be a legitimate reason for this.

      If the sellers have no assets in their name because they have transferred them to someone else, then there may be a way to challenge these transfers. However, this would be risky and costly and would probably involve pursuing a claim, obtaining a judgment which is greater than £5,000 and then petitioning for their bankruptcy. Depending on the time that these transfers took place and the nature of them, they may be capable of being challenged by a trustee in bankruptcy. However, such a challenge would be for the benefit of all the creditors. If a bankrupt has a lot of creditors, then their assets are pro-rated according to the value of the debt, with secured creditors being paid first and unsecured creditors last, if there is anything left.

      We may be able to assist you but it would be remiss of us to suggest that it would be a straightforward, quick or low risk claim to pursue. However, please do feel free to contact us.

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