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 Property Information Form. Much of the time, the form used is the Law Society’s Property Information Form, sometimes referred to as the 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 answers them. If the seller has been as upfront as possible in response to those questions, the seller cannot normally be held liable for anything else they say.

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

We see a lot of cases where a seller, sometimes unintentionally but sometimes deliberately, misleads a buyer by answering a question on the Seller’s Property Information Form or during negotiations incorrectly – or partly incorrectly so as to create a misleading impression. The buyer then purchases the property and moves in, only to discover that the information provided by the seller 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;
  • stated that the boundaries are in one place or have not moved when in fact they are not or have been changed;
  • suggested that the property does not suffer from damp, when it does;
  • explained something in relation to an existing tenant which is incorrect; and
  • stated that there are no planning or other proposals nearby which could have an effect on the property.

… the list goes on.

In all of these cases, the buyer may very well have a claim for misrepresentation, depending on what the seller said about the position.

If you are interested to read about real cases which have been decided by the Courts, examples can be found in our article Property Misrepresentation in Practice.

Misrepresentation is a false statement of fact that induces a party into a contract causing a financial loss. It does not have to be the sole inducement, but the buyer would have to have relied upon the statement to bring a claim. Read more about reliance in misrepresentation claims here

Depending on whether or not the seller innocently, negligently or fraudulently answered the questions inaccurately 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 to return the property to the seller. This does not happen very often and a Court will normally award only 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. However, in some cases, additional damages can be awarded to cover other expenses incurred.

Diminution in value

To give an example of how diminution in value is calculated, we have acted for insurers in professional negligence claims against surveyors, who have failed to identify that a property suffered from subsidence. The measure of damages was based on diminution in value. 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, meaning that the impact on the value of the property was less.

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 considering it a 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 and because even with the defect, the property represented a good investment.

How can a seller ensure that their buyer will not bring a claim for misrepresentation 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, and how they would react if they bought a house with problems that were not disclosed.

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. 

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?

In some circumstances, a seller is under a continuing obligation to ensure that their replies to enquires are accurate up to the date of exchange of contracts. Therefore if there is a change of circumstances meaning that the original statement is no longer accurate, there is every chance the seller would be obliged to update the buyer.

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?

Have you bought a house with problems which were not disclosed?  Unfortunately, this is unlikely to give rise to a claim for misrepresentation.

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 and ask questions about it which are important to them.

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.

In some cases, a “half-truth” or explanation which is accurate on the face of it but misleading about the true circumstances of the matter can also amount to a misrepresentation.

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, as the buyer may not be prepared to proceed without an answer.

Sometimes a seller will qualify their response, but this in itself is not always enough to prevent a claim. It is important to discuss it with your property solicitor. You can be sued 

If you are interested to read about real cases which have been decided by the Courts, examples can be found in our article “Property Misrepresentation Claims in Practice”.

If you are facing a claim for property misrepresentation or believe that you have a claim yourself, please do feel free to get in touch.

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.

Questions people ask about misrepresentation

As you can see, buying and selling property is not always as simple as you think. We’ve tried to address some common questions below, but if you are still unsure please feel free to contact us for an answer.

> What is property misrepresentation and what are property misrepresentation claims?

There is no specific definition of this but broadly this could be described as a claim which arises by reason of a misrepresentation occurring during a property transaction.

> Can I sue the seller if I bought a house with problems that were not disclosed?

A seller does not have to volunteer information about a property. If a seller stays silent on something, a representation has not been made and a claim for misrepresentation can arise.

> What compensation will I receive in a property misrepresentation claim?

Damages for all types of misrepresentation cases are intended to put the claimant in the position that they would have been in had the misrepresentation not been made.
In property misrepresentation cases, this is normally the difference between what you paid for the property and what it would have been worth, had the truth been told. This is called diminution in value.

> What should a seller disclose when selling their property?

The seller does not have to disclose anything but if they do not, then a buyer might decide not to take the risk of buying the property.
Normally a seller will fill out a property information form. For residential purchases, the Law Society published a standard property information form for this purpose, called a TA6 or a TA7.

> What if the seller lied on the property information form?

If a party to a contract deliberately misrepresented facts relating to the property with the intention of misleading the buyer, a fraudulent misrepresentation can arise. Often, such a representation does not need to be in writing.

> Do I have to declare planning applications, like a neighbour’s extension?

There is case law on this and it will normally depend on whether or not you have received a formal planning notice.
Have a look at our article Property Misrepresentation Claims in Practice for a case on this point.

311 thoughts on “My Seller Lied To Me!”

  1. Hi,

    We purchased our first property a month ago. We knew the property needed a majority of it gutting inside as the owners dogs had urinated in most rooms and it was mucky when we went to view. However, The previous owners have left rubbish in the garden, an outbuilding and two garden sheds, as well as chicken runs with chicken manure a couple of cms deep and a rat problem.
    We have so far had to pay for 2 skips to remove solely the rubbish they have left, they confirmed to the estate agent it was not wanted and we are going to need another 1 or 2 skips to finish removing it.
    On the contents and fixtures that they have signed and dated it does say they are responsible for clearing any rubbish including in gardens, shed, outbuildings etc.
    We do not have an address to get in touch with them, can we do anything?

    1. Subject to any agreed terms and conditions in relation to the sale, the general position would be that a representation made during the course of the transaction, made in writing and passing between the parties’ solicitors, to remove rubbish from the property after completion would potentially be actionable, so far as the buyer relied on this when exchanging contracts.

      Normally the basis of damages in a property misrepresentation claim is based on diminution in value. This is the difference between what was paid for the property and what it was worth with the defect complained of. There is some limited scope in case law to claim the cost of rectification, however, so there may very well be scope to claim the additional losses arising.

      In the first instance, you should get advice from your conveyancing solicitors on this, as they will be aware of the relevant contractual position and may be prepared to raise this as an issue with your seller.

  2. We brought a house nearly two years ago now and the only thing on the form about neighbours was a dispute over whose fence was whose but we have had nothing but problems with said neighbour since we moved in, playing loud music, her kids damaging our cars etc. And have just recently found out that the seller moved because of the same issues only worse as the neighbour smashed all sellers car windows and keyed her car.
    If we had known this we would never have gone through with buying property as we have had two years of hell and our kids can’t even sleep in their bedrooms because of the noise, I’m so angry with previous owner as she knew we had young children
    Can we get any help with this matter ?
    Thanks

    1. Thank you for your comment and we are sorry to hear of these issues. We are aware of how horrible it can be to have problem neighbours.

      Whilst we cannot give legal advice on our website, primarily because we are not able to consider all of the evidence involved and every case will be different on its facts, we can set out some general points which might apply to your issue.

      In some cases, a misrepresentation can occur in circumstances where the representation itself is true or accurate but because of what is left unsaid, this representation is misleading. In context, if you were advised that there was a possible dispute over the fence and this was true, but the reality of the situation is that there were other aspects of the relationship with the neighbours which could lead to a dispute and the seller was aware of these, the fact that these other details were not mentioned in response to any specific question could give rise to a claim in misrepresentation.

      This is not as straightforward as a “traditional” misrepresentation claim in this context, as it would also be necessary to prove that the seller was aware that you were proceeding under an incorrect misunderstanding of the facts that the only issue with the neighbour was that relating to the fence. We think it is unlikely that this would be an issue to prove, as if the precedent Property Information Form (TA6) produced by the Law Society was used, this contains a lot of guidance notes to both the seller and buyer about how important it is for the answers provided should be accurate. We think it would be difficult for a seller to argue that they were not aware of this or that a buyer would rely on what was communicated to them. However, if you do have evidence of previous issues, which make the representation given to you about the existing relationship with the neighbours arguably inaccurate, then there may very well be a basis of claim.

      Please do feel free to get in touch if you would like to discuss matters in more detail.

  3. We have recently purchased a flat where the vendor answered ‘no’ on the TA7 form to having received a complaint from a neighbour. They also answered ‘no’ to any disputes with neighbours. We have since learned that there was a complaint made by the downstairs neighbour about their floor and there’s correspondence between them and the neighbour about it. Does this count as misrepresentation? What damages would we be likely to claim for?

    1. Thank you for your comment. While we are unable to give specific advice in this comments section, it is possible generally to bring a claim in misrepresentation where a seller denies when asked that they have had disputes with neighbours about the property or any neighbouring property when in reality the opposite is true. However you would need to show that had you known about this dispute, you would have paid less for the property and as such you would have to show a loss that has come about as a result. If there was a single historical dispute that was subsequently resolved, then that is unlikely to be a source of any loss and damage to you. If, however, the dispute was not resolved or if there are continuing problems emanating from the neighbour, then that is a different matter.

      In terms of damages, this is usually calculated as a function of the diminution in the value of the property as at the date you took up occupation, with the ongoing dispute in place. This usually will require a surveyor’s report to determine.

      However, whether there is a claim here will depend on what exactly the dispute was and whether it is continuing. Please feel free to ring our Litigation department for a confidential discussion.

  4. Hi
    We completed on a property in September last year, we had a home buyer report done which threw up a couple of issues that we were willing to rectify ourselves, as it was nothing major, it did state there were no signs of damp in the property but walls were plasterboard/drylined, the day after completion we walked into the property and there was an overwhelming smell of oil based paint and when we went upstairs the back bedroom wall had been painted in what looked like gloss paint, we rang the estate agent to ask them to contact the seller and ask were there any issues we should be aware of, we were informed by the agents the seller had got back to them and told them there was stains on the wall so he had used an eggshell paint as a stain blocker, turns out all that wall was soaking with damp. We put it down to bad luck and got on with it, but then I started getting strange patches of damp on the party wall at the front of the house which was put down to condensation but a professional damp proffing company as they were only in random patches, anyway on further investigation it turns out the wall is full of damp and the previous owner has hacked off the plaster half way up the wall and covered the damp area with foil backed Plasterboard, but worse than that the damp has caused all the floor joists to rot, there is a 3-4 ft void underneath the floor and he has propped the joists up with fence posts, laid ply over the floor boards and then laminate on top and to be fair unless the surveyor had ripped the house apart as we have the problems were not obvious, it turns out the house was bought and refurbished by a builder, there is no way he didn’t know about these issues and worse still purposely covered them up, I know this as I’ve since found the original advert for the house from when he purchased it, and everywhere we have problems are clearly showing in the original estate agent pictures, I should add that although we dealt with a man “the builder” throughout the sale it turns out the house was bought/sold on his daughters name, but in the legal form it states that no work had been done on the property since he owned it, which obviously he lied about we now know, do I have a case for a misrepresentation claim? as these are just a couple of the issues that we have encountered there are many many more I haven’t mentioned

    1. Thank you for your comment.

      If you were misled by the seller during the course of the transaction, then there may be a claim for misrepresentation. If the seller expressly informed you (and this would normally have to be in writing) that there were no problems with the issues that you are now encountering, then there would likely be a good claim. It would also not be overly relevant whether or not the seller was being truthful or not in the information that they were providing.

      The fact that you obtained a survey which did or did not identify the issues is also not necessarily fatal to the claim; there is some limited case law in relation to a case of damp where the surveyor did identify the issue but not in the place which the seller stated. Whether or not there is also scope to pursue the surveyor on the basis of professional negligence will depend heavily on what the surveyor agreed to do for you (called the “retainer”). Normally, as you identify, a surveyor would limit the scope of their retainer in a way which means that they cannot be held liable for negligence in circumstances where it would not be possible to identify the issue without deeper or invasive investigation.

      In some cases, a misrepresentation claim can arise by reason of what is not said, but these sorts of cases are relatively rare. For example, if the seller was specifically asked to provide details of any damp in the property and the response was an understated one which did not reflect the accurate position (for example, explaining that there were minor issues of damp rather than extensive issues), if the seller allowed you to proceed based on an obvious misunderstanding on your part, then there could be a claim for misrepresentation.

      The basic position in any sort of misrepresentation claim is that the seller would have had to have said something to the buyer which is inaccurate but the buyer relied on this when purchasing the property. Put in the simplest of terms, a buyer cannot hold a seller liable for misrepresentation unless the buyer has been misled about the issue in question by the seller. If the buyer has not been misled, the “buyer beware” principle will apply.

      It sounds as though the basis of your claim would be because the seller expressly stated that no building work had been undertaken on the property when it had been. Had you been advised of any building work, then you would have been able to enquire further into the nature and extent of that and make an informed decision.

      Depending on the works undertaken, there is also an outside chance that there could be a claim pursuant to the Defective Premises Act 1972. However, such a claim would normally be restricted to matters where there has been a conversion of a property and the materials used or workmanship were such as to render the property uninhabitable (although there is some case law which supports the view that if the property in the future become uninhabitable as a result, this would still apply).

      We are unable to provide specific legal advice on our website. This is particularly for cases in potential misrepresentation claims, as the facts of each and every matter will be different. However, if you would like to explore the matter in more detail, please do feel free to get in touch.

  5. We bought a house frome a seller who flips homes in a 55+ community. The house we bought from her was adorable really nice. We had a home inspection. The inspector said there was 5 years left in the roof, air conditioner unit was maintained, plumbing was good . After we moved in we had a leaking roof, plumbing pipes were not connected, air conditioner was going out, windows were crank windows that were screwed shut and cracked with no crank handle, the supposed new wood floors put through the house was put over wet damaged material, shower doors swing and don’t stay in place, when we replaced the refrigerator, behind the refrigerator the whole area had holes in the wall and damaged original materials, we found 3 outlets with no covers, outside outlet was open to weather, the seller bandaid anything and everything she could. We find more problems as we live here. We have only been in the house for 4 whole days. It’s going to cost 12,500.00 to replace the roof, 5,000.00to replace the air conditioner, 5,000. 00 to replace windows, 2,300.00 for plumbing, 12,000.00 to redo floors, 2,100.00 to replace back door, because it doesn’t close all the way, 200.00 for smoke alarms because there were none in the house. We are currently repairing what we can ourselves. We can’t afford to move now. We are so frustrated!!! So is our realtor!! This lady is currently flipping more homes in this community and currently lives in the community. I showed her some of the damage we could see and she said she fired the guy, and that was it. Please help 🙏 😢

    1. Thank you for your comment and we are sorry to hear about this.

      From the language you have used, it sounds as though perhaps this is not a property in England or Wales. We are only able to advise on the law of England and Wales.

      Whether or not you have a claim will depend on what you were told by the seller about the condition of the property. If nothing was said about this, there it would be unlikely that there is a claim.

      If your surveyor/inspector check the property for you but missed the issues you have identified, depending on the scope of the retainer (i.e. what the surveyor agreed to do) there may be a professional negligence claim against them.

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

  6. Hi Mark,
    I am hoping you can help/offer any advise. We purchased a leasehold flat with a garden attached (owned by us). It is a ground floor apartment and part of the garden included a side entrance (we were told by the estate agent that this was ours and we could do what we wanted with the height of the gate). On the same day as we completed we arrived at the property to builders in our back garden taking down our fence and putting it back together closer to our property, therefore reducing the size of our overall garden space. When we finally spoke to our freeholder that day (the first time we ever spoke to them, as it was all done through solicitors) we were informed that this section of garden actually belonged to the neighbouring freeholder, but this freeholder had ‘verbally’ given it to our freeholder and has now ‘decided to take it back’. To add to this complex situation, we were never provided with ground plans by the buyers solicitor and therefore never saw that the area of land in question was drawn on the plans as ‘communal’. Our land registry plan does not give any clarity and we are unsure what we are to do next/who to turn to.
    Many thanks

    1. Thank you for your comment.

      This does sound as though there may have been failures here on the part of those acting for you. It would normally be the case that plans are sent to a solicitor’s client for them to check, either themselves or via their surveyor. The lease itself would normally also include a plan.

      If no plans were supplied, your solicitor should have told you this and highlighted the risk.

      In respect of the seller, in the standard property information form (the TA6) there is a question about informal agreements with neighbours and about boundaries having been moved. Even if the seller was unaware of this issue, if they expressly confirmed that there had been no such agreement or movement of the boundary, there may be an innocent misrepresentation. This is still an actionable misrepresentation.

      We would need to understand the situation in a lot more detail and if you would like to consider the matter further, please do feel free to get in touch.

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

  7. Hello, we completed on our house 2 weeks ago and noticed the downstairs toilet was blocked. After several attempts, we called the water company who cleared the blockage. They returned next day to do a drain survey and told us we must not use the toilet as it is flowing into a rainwater pipe that discharges into a brook. Apparently, the toilet is an addition to the property but was not declared on the sales information form. The downstairs toilet was crucial to our purchase as my husband has mobility issues. To connect the toilet to the mains would involve serious disruption and expense, what can we do?

    1. Thank you for your comment.

      It isn’t clear whether or not this is an issue which should have been identified by a water and drainage search, your surveyor or the seller. There could be a basis of claim against these parties but much would turn on the nature of the issue and whether or not it was discoverable. If the toilet was an addition to the property, requiring planning or building control authorisation or approval, then perhaps this is a point which your solicitor should have identified.

      From a misrepresentation point of view, you would need to show that the seller actively mislead you. This does not have to be deliberate but there would normally need to be some comment or statement of fact made about the toilet. A claim would not exist if there was a mere assumption that everything was in working order without some sort of statement by the seller, express or implied.

      This isn’t really something that we can offer any real guidance on here. We would need to review the transactional documentation with a view to identifying whether or not this was an issue which could have been identified and if so, who is at fault. Whether or not there are any statements made by the seller, for example, in the property information form, which could amount to a representation would also need to be considered.

      Do feel free to get in touch if you would like to consider the matter in more detail.

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

  8. I have recently purchased a house and it appears that one of two chimney breasts has been removed from the ground floor and the First floor. I requested clarification on any works and the seller has suggested that she has not done any work and has lived at the property since 1989,

    She also failed to mention that she had done work that was subject to building regulations and parity wall documentation of which no documentation exists. On arrival, I have noticed that the upper chimney is not properly supported and it is clear from the materials that are used that this was done far more recently than in 1989 and the brickwork for the chimney is coming apart in the loft.

    1. Thank you for your comment. Matters relating to the structure of any property are normally the remit of a purchaser’s surveyor.

      However, if the seller has made a factual statement that no work has been undertaken and there is evidence that this was not accurate, then if you relied on that confirmation when entering into the contract to purchase the property, you may have a claim for misrepresentation.

      If your aim is to recover the cost of any remedial works necessary, then this may not be possible, however. Whilst there is some legal authority that the cost of rectification can be claimed, the normal measure of damages that a court would award is based on diminution in value.

      Diminution in value is broadly the difference between what was paid for the property and what it was worth with the defect. This may not be the same as the cost of fixing the problem.

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

  9. I have recently bought a property for the first time. I have done further research into the property since buying and have discovered that it is in fact in a different (more expensive) council tax band than the band indicated on the Property Information Form in the Home Report. Would this be classed as misrepresentation, regardless of whether it was intentional or not?

    1. In theory, this would possibly amount to a misrepresentation. The seller has made a statement of fact which was untrue, namely that the property was in a particular council tax band which it isn’t. It is not generally relevant whether or not this was deliberate or not but this will depend on the contractual terms agreed.

      However, this statement about council tax bands might also amount to a statement of law. Only a statement of “fact” gives rise to an actionable claim for misrepresentation. Someone’s opinion of something does not and neither does a statement about the legal position of something. Having said this, there are some legal authorities which blur this distinction. However, we suspect that there would be an element of risk in what you have set out that the Court considered that the statement related to the legal banding of the property.

      There is also a question of reliance. A claimant must show that they relied on the statement made by the defendant when entering into the contract. If the claimant would have proceeded in any event and did not rely on what was said, then no misrepresentation claim will arise as it cannot be said that the loss was caused by the defendant. If the buyer would have proceeded to purchase the property irrespective, it cannot be said that this decision was influenced by the seller’s statement.

  10. I read today of an article in The Times about an Italian couple who had experienced loud plumbing noises from their neighbours, I commented on the article thus:

    “I have this problem, next doors bathroom is next to my bedroom, with their toilet I can hear the flush and hear the guys peeing, despite having two false walls installed. It’s the same downstairs, unless my TV is on, I hear the same things with the addition of bodily noises. I have offered to pay for silent flush toilets for them, but they say they have them already. When I viewed the house the folk next door were out at work, I would never have entertained buying the house had I known about the noise. It is a building fault, nothing to do with the neighbours, yet being a semi my plumbing is on the opposite side to theirs, they say they never hear me.”
    Someone replied to me and said that the previous owners should have disclosed this info, any views on this please?

    1. Thank you for your comment.

      We do not agree that the previous owners were under an obligation to disclose this issue.

      The basic position with respect to the sale of anything, including property and land, is “caveat emptor” or “buyer beware”. This means that it is down to the buyer to make whatever enquiries they deem necessary to enable them to make a decision about entering into the contract or not. In respect of some contracts, the law will impose requirements on a prospective seller to provide information to the buyer (for example, consumer contracts for the sale of goods or services) but there is no such applicable law to the sale of property or land.

      This means that there is no obligation on a seller to disclose anything about a property if they do not want to. However, if a seller does provide information, that information should be accurate or they may face a later liability to the buyer for misrepresentation if the buyer relies on what was said when entering into the contract and suffers a loss as a result.

      In practice, at the start of any conveyancing transaction, the seller will often provide basic information about the property that most buyers will want to know. This is normally in the form of a Property Information Form (TA6). However, it is up to the buyer to ask further questions before committing to the purchase. These further questions are normally called “additional enquiries”. A seller does not have to answer any enquiries at all if they do not want to, however the practical effect of this is that the buyer may not want to proceed. If the seller does not answer questions, or they provide answers which are not satisfactory or warrant further investigation, then it is up to the buyer to decide whether or not to accept the risk in proceeding at that point, ask more questions to satisfy themselves, or not enter into the contract at all.

  11. I am in the process of buying a leasehold flat. The estate agent provided a floorplan which included a loft, and the square footage quoted also included the loft. We put in an offer which was accepted. The Homebuyer survey was undertaken and they included the loft, which then influenced the mortgage valuation. We have now learnt that the loft is not included in the purchase/deeds, and as the only access is through this flat, we have been advised that the landlord can make use of this loft space and require access at any time. We have already paid over £1,500 in fees. We verbally questioned whether the loft was included during the viewing and at no point were we told by the estate agents that it wasn’t. We may now decide not to carry on with the purchase but will have lost money.

    1. Dear Megan,

      Thank you for your comment. While we are unable to give specific advice in these comments, there will only be a claim here if exchange of contracts has taken place, and just because there is an offer and acceptance this does not necessarily mean a binding contract has arisen as those offers and acceptances will be subject to contract.

      If exchange has taken place, it does sound like there may have been a misrepresentation by the seller which potentially may found a legal action. However this depends on exactly what was said to you in the documents relating to the property; a verbal enquiry by the estate agent may not be enough because often the contracts of sale have exclusion clauses for all verbal representations. Please feel free to telephone our Litigation team at the Braintree office for a confidential discussion.

      If there has not been exchange of contracts, then there is unlikely to be a claim. A complaint to the ombudsman for the estate agent may be possible but this may not get you any redress or the recovery of your already incurred costs.

  12. Hi Mark

    Our seller stated on the Property Information Form that the house had “a drive and parking for several cars”. However there is no dropped kerb across the footway which separates us from the road, and it looks as if the permissions and works needed to correct this would cost several £000s. My understanding is that without these we have no legal right to drive cars across the footway.
    I suspect this was an honest mistake as the hardstanding in front of the house has clearly been used by cars for many years. But given the inaccurate statement on the PIF, can we claim the cost of the works from the sellers? Or our surveyor (RICS house buyer report) who missed this problem whilst referring to a “drive” in his report?

    Many thanks

    David

    1. Thank you for your comment. We are not certain whether or not there is a claim here. It may very well be the case that the driveway can accommodate several cars, but what is left unsaid is whether or not the driveway can physically or legally be used in this way. This is arguably misleading and could give rise to a claim, however we suspect that the matter would turn on “reliance”, which is a constituent element of a misrepresentation claim.

      Unless a buyer can say that they relied on what they were told when entering into the contract to purchase the property, they cannot blame the seller if what was said was inaccurate. Put another way and in the simplest of terms, if you specify to a seller of a car that you want a red car and they supply a white car, there would be a potential claim. If you did not specify the colour of the car, there would be no claim if the car you brought was not the desired red colour.

      We suspect that you inspected the property before committing to the purchase. Arguably, this could have an impact on the outcome of any claim if a court found that you did not rely on what was said to you because the “truth” regarding the dropped curb had already been discovered by your inspection. Having said this, it is generally not a defence to a misrepresentation claim if the aggrieved party could have discovered the truth if they had looked.

      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 that the driveway could be used, then there may be a claim if a reasonably competent surveyor would have identified that the dropped curb would have prevented this. Even if it is not specifically agreed in the retainer, if the work is reasonably incidental to what you asked the surveyor to do and a reasonably competent surveyor would have identified the issue, then there may also be a claim.

      As for the damages/compensation, this is rarely the cost of undertaking any necessary works. There is some case law which supports claim for damages like this, but the basic position is that the loss will be based on diminution in value, or the difference in what you paid for the property and what it was worth at the time with the problem. This may not be the same as the cost of any works, which is logical to a large degree as the parties may not have known what the cost would be and if, for example, the property would still represent a good investment for someone, that person may be willing to incur the cost of those works themselves to secure the property, rather than seek to negotiate a discount on the purchase price.

  13. We purchased a cottage that was owned by a life time mortgage company. The lady who lived in the cottage had died and so no information was available. We paid for searches to be done and were told it was on mains water with a water meter and mains sewage. I also phoned the water authority to check regarding water and was told the same information as the searches. The house had been empty for approx 2 years and the water/heating system had been drained down so we could not try the system when we were shown round by the state agent. After moving in we discovered there was no mains water and no mains sewerage. The water authority denied responsibility because they said we should have checked which we thought was the point of searches???? We later discovered there was a bore hole which had been installed some years before. After living in the house for a few days we discovered a cess pit in the garden which we were also not informed about. Should the life time mortgage company, as the legal owners have informed us? And are the water authority at fault for giving us false information in the searches?

    1. Thank you for your comment.

      A water and drainage search would ordinarily reveal if a property was not connected to mains water and drainage. If this is not the case, then it may very well be that there is a basis to bring a claim against the search company.

      Much of the time, searches are backed with an insurance policy in case incorrect information appears in them. We have acted in the past for an individual in exactly the same circumstances, namely that the search result inaccurately stated that the property was connected to mains drainage when it was not. The insurers agreed to indemnify our client for the cost of the necessary rectification works.

      We would recommend that you check to see whether or not the searches included an insurance policy in the first instance and consider making a claim against that policy. You will need evidence that the search results were inaccurate, so you may need to obtain a report from a suitably qualified individual confirming that, as at the date the search was issued, there was no connection to the mains.

      As for any sort of claim against the seller, from what you have written, this appears unlikely. There is no obligation on a seller to provide information regarding a property at all, if they do not want to. However, if information is volunteered, it should be accurately provided. If there are inaccuracies in what has been said, then a potential misrepresentation claim may arise.

      It would be uncommon for a seller not to provide a TA6 or similar property information form, even though there is no obligation on a seller to provide it to a buyer. If this was provided, the answers to question 12.4 should be considered. This is the section where the seller is asked to confirm whether or not the property is, to the seller’s knowledge, connected to the mains and surface water drainage.

  14. I purchased a house and exchanged contracts less than a month ago. Our surveyor had highlighted a damp patch in the hallway. The owner had disclosed on the contract they had made an insurance claim to rectify a leak from the upstairs bathroom. After moving in I believe this leak hasn’t been rectified and the details of an insurance claim are false leading to a costly repair, does this count as misrepresentation? Thanks

    1. Thank you for your comment. A misrepresentation is normally any statement which is false and on which you rely and are entitled to rely, and as a result of your reliance on this have suffered a loss or damage. However it is not uncommon for property transactions to limit reliance or include entire agreement clauses which may limit your rights to claim for misrepresentation. As such we would have to see the contract before being able to advise upon this.

      If this is something mentioned in the contract, then a failure by them to have rectified the leak may also be a breach of contract on their part, but once again we would need to see the contract in full before we could properly advise you in respect of this. On the other hand, depending on how it is worded it may be that they were only obliged to, or acknowledging that, they have claimed on the insurance to go towards this; it will depend on the exact wording used.

      Please feel free to telephone our Litigation team at the Braintree office to discuss this further if you wish.

  15. Hello. We have just bought a property at auction. We have since found out that the property has previously flooded due to rain water flowing off adjacent land. The seller answered No to the question re: history of flooding in the TA6 form. However, through my subsequent investigations I have collated a body of evidence that shows the seller did know, including a formal report from the the local council flood team relating to a previous occurrence. This has put us in a difficult position with both insurance and mortgage. Do we have potential to make a claim?

    1. Thank you for your comment. From what you have described, there probably is a potential misrepresentation claim here. If the seller has expressly stated that the property has not flooded but you have evidence that that statement was untrue, there is likely to be a loss to you. That loss would normally be based on what is called diminution in value, being the difference in the value of the property with and without the defect complained of. However, case law is developing to the extent that sometimes the cost of repairs can be considered the appropriate measure of damages.

      Do feel free to get in touch if you would like to progress this matter in more detail.

  16. Seller gives floor plan and room measurements are not accurate. We asked EA and he told us that this approximant measurement. But one room measurement is more than 6 inches smaller. One or two inches difference is understandable but 6 inches is too much. Please guide us, what to do.

    1. Thank you for your comment. Unfortunately we cannot provide you with any specific guidance on our website. We can, however, provide you with some general guidance.

      If you have relied on something a seller has told you during the course of the transaction, then if that turns out not to be true, there could be a claim for misrepresentation. However, the basic measure of damages is what is called “diminution in value”. This is the difference between the value of the property with and without the defect complained of. We would not be able to advise you on the value of your claim and how a 6 inch difference in measurement would impact on the value of the property. For this we would have to appoint a suitably qualified surveyor to provide this information.

      If it is determined that the difference in size is of no material impact on the value of the property, then the prospects of their being any loss or damage and therefore any claim to pursue, may be quite low.

  17. Hi.

    I received this email from our solicitors regarding an LPE1 for that was filled out incorrectly by the management company of the flat I sold:

    “Morning Rebecca,

    Further to your sale of the above property the buyer’s solicitor has been in touch with regards to the service charge.

    We received an LPE1 from the management company who advised that the service charge was paid up to March 2022 when it was actually paid monthly by yourself. This means that when we worked out the apportionments on completion for the service charge it was incorrect and the buyer has effectively ‘paid you back’ for the service charge up to March but has now received a payment demand from the management company from August. The total for the amount to be paid back to the buyer is £636.39.

    I’ve attached a copy of our client account details for payment to be made, please ensure you call the office and check these prior to making any payments.”

    Not once did I mention that service charge was paid up until March 22 I have always stated I paid monthly. This error was created by the management company. I’ve never even seen this LPE1 form.

    Where do I stand on this issue. Can I refuse to pay?

    Thanks in advance

    1. Thank you for your comment. The basic position is that a lessee will be liable for all of the charges arising during their period of occupation of a property pursuant to a lease. If it can be said that you have received something over and above that which you were entitled to by reason of someone else’s mistake, there may be a claim for unjust enrichment, unless your position has changed significantly.

  18. I offered on a flat that the estate agent told me was being sold share of freehold. This affected our decision to offer on the flat rather than another property we had seen and increased our offer. Through the conveyancing process we discovered that the flat was not share of freehold after all. When we questioned the estate agent we were told that the freeholder had changed their mind about selling the freehold.

    If we decide not to go through with the purchase is the estate agent liable for our fees as they told us the property was share of freehold and did not notify us of the change?

    1. We would think it unlikely that there would be any basis of claim. The freeholder may very well have changed their mind as any seller would be entitled to do before exchange of contracts.

      If you do consider that the marketing or advertisement of the property was in some way misleading, you could consider making a complaint to any relevant redress scheme that the estate agent belongs to.

  19. I’d like advice on stopcocks please. On 2nd viewing, after our offer had been accepted, we found a leak in the property which is a top floor flat. We looked for the stopcock in the flat to turn off the water but couldn’t find it. Seller had indicated stopcock (and water meter) were in the hall cupboard. We flagged the leak to the solicitor and said we could not find the stopcock. The water meter was actually outside, in the road. We got the reply that the leak had been fixed and the stopcock was in the cupboard. Date for completion has now been agreed. Our solicitor suggested we do a final check on the leak. This time the water had been turned off. Still no sign of the stopcock so we asked a neighbour who said there were no internal ones, only ones out under covers on the road. We can’t now check to see if any of the pipes are leaking as obviously don’t have access. Water co said it is strongly advisable for flats to have internal stopcocks, and that’s what we were expecting. It seems so minor but I don’t want to move in and find a ton of problems with leaky pipes. Seller just seems to be wasting our time over this. They also have the key to the garage which they said they would drop off to the agent. The agent doesn’t have it and the seller has now gone to an amber country. He doesn’t know when they’ll be back. Originally the seller didn’t even know the garage was part of the property – only when we got the deeds we could see it. We haven’t even been able to see in it as nobody has the key and with quarantine the seller won’t make it back before the completion date. Am now wondering if the cooker and washing machine will be working, let alone the heating, as the sellers seem so unreliable! The flat has been tenanted for a long time but even so…Is any of this misrepresentation?

    1. Thank you for your comment. A misrepresentation occurs when someone says something that the other party relies on when entering into the contract and that statement is not accurate, causing a loss to the other party.

      You should discuss the position with your solicitor. In particular, if you are unsure of the contractual position, you might want to discuss the point that clause 3 of the standard conditions of sale (which are normally incorporated into the contract) state that the buyer accepts the property in the physical condition that it is in on exchange.

  20. I purchased a house the beginning of the year, when we looked around the property we specifically asked the Estate agent if there were any issue with neighbours etc. we were told not at all its a lovely neighbourhood.
    We then decided to proceed with the purchase, and on the forms the sellers stated that they did not have any issues with neighbouring properties.
    However since moving in, this was obviously not the case and we have since learned that the sellers had issues with the neighbour and that was the reason that they wanted to move.
    Since moving in we have had endless issues with the same neighbour relating to drugs, loud music and general anti social behaviour. We have two small children who as scared in there own homes so this is a real problem.
    Do we have any grounds for claims against the sellers?

    1. We are sorry to hear of this and sadly, it is not uncommon. There are examples of cases where sellers have been ordered to pay damages to buyers because they have suggested that there are no disputes with neighbours and this turns out to be untrue.

      Whether or not there is any sort of misrepresentation claim here will depend a great deal on the written correspondence and documentation, specifically the property information form. What you have been told orally is less likely to be relevant because the standard conditions of sale normally incorporated into a contract of sale exclude these as being actionable. An exception to this would be in cases of fraud.

      Please do feel free to get in touch if you would like to consider the matter in more detail with us.

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