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 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 on our article “Property Misrepresentation in Practice”.

Misrepresentation is a false statement of fact which 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.

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 return the property to the seller. This does not happen very often and normally, a Court will 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.

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.

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.

160 thoughts on “My Seller Lied To Me!”

  1. Hi, I’m selling my house and made noise complaints about my next door neighbour to the council. Mainly for loud music which could be heard throughout my house during lockdown. It is nowhere near as bad now since the council has contacted the neighbour and the case was closed. Does this need to be disclosed on the pif form?

    1. Thank you for your comment.

      There is no statutory definition of what constitutes a “dispute” with neighbours. It is a subjective question and for an example of a case where the Court was asked to consider whether or not a seller misrepresented the existence of a neighbour dispute, you might want to have a look at our Property Misrepresentation Claims in Practice article. A transcript of that case can be found on the internet.

      A seller does not have to disclose anything about the property. However, this is not the same as saying on the property information form or in correspondence that there is or was no dispute in relation to the property. If “no” is answered to either of the questions in section 2 on the property information form, then this will be considered confirmation that there is or was no dispute.

      We appreciate that clients want to know specifically whether or not something constitutes a neighbour dispute and whether or not such a neighbour dispute needs to be disclosed on the property information form. Sadly, because all cases are different and have to be considered on their own individual facts, there is no black and white answer to this subjective question.

      We would generally advise a common sense approach to this issue. The Court has pointed out that the property information form is designed for people without legal qualifications to complete and read when deciding whether or not to purchase a property. If you would consider that a reasonable buyer would consider the facts of the matter a dispute, then the chances are it is something which should be mentioned in full or the questions not mentioned at all. However, with the latter approach, you may find that your buyer presses the point until a satisfactory answer is given. The safe option is always to explain the position in full.

  2. Hi,
    I don’t know if this fits under the misinterpretation but we have just found out that the property that our seller is purchasing has tenants under AST. This puts my daughter’s school place and the job that my fiance’s was offered this week. Is this something that our solicitor should have asked the seller’s solicitor who is acting for the seller on both sale and purchase? We’re waiting to find out if the tenants have been given notice as our sellers offer for the house with the tenants was accepted in mid June and what notice period they are on.

    Is there any safeguard clause we should include or negotiating point we could use to enable my fiance to start his job such as cost of week nights accommodation as the house we’re buying is 3 hours journey. I realise that COVID-19 could also delay things and my fiance cannot give up his current job and take up the offer so it’s quite a mess.

    Many thanks, Angie

    1. Thank you for your comment.

      We regularly advise on aspects of landlord and tenant law in residential and commercial premises. At present, we expect to see long delays in obtaining vacant possession (i.e. a property without anyone occupying it) of properties from tenants who do not leave a property voluntarily, as a result of changes to notice periods and the way in which the Court is presently operating with respect to possession claims.

      Solicitors operate in different ways and whether or not this was information that should have been asked about is open to debate. It probably is not something that would ordinarily be asked about by a buyer’s solicitor before anything else, because there is a specific question in the property information form about whether or not the seller is the occupier, which you should have been supplied with when it was received at the beginning of the transaction. Most estate agent particulars would mention something like this, as it is not in the seller’s interest not to mention it. However, there is no obligation on the buyer to volunteer this or indeed answer the question in the property information form.

      If you have not yet exchanged contracts, this is something to raise with your conveyancing solicitor. Contractual clauses, including the point you suggest regarding accommodation to allow your fiancé to take up his new role are subject entirely to negotiation.

  3. We bought a cottage nearly three years ago and our seller did not disclose on the Property Information Form that the house and grounds had been flooded. The actually wrote in this segment of the form that asked regarding floods ‘Not in our occupancy ‘. Ten months after we moved in Storm Callum flooded the whole of our downstairs to a level of eighteen inches throughout and the insurance claim came to approx. 42K plus we had to spend approx 20K on things that were not covered. After this several neighbours informed us the cottage had flooded during the previous owner occupancy and produced photographs of the grounds to prove it. The previous owners even had purchased flood gates which they took with them. We sought legal advice from a local solicitor who told us it would not be worth pursuing as we could be offered as little as £10 per month as settlement what ever the claim came to.
    Could you let me know if we do have a case and have been misinformed please. Many thanks.

    1. We are sorry to hear of this, which must have been very stressful.

      It does sound as though you have a claim if what was said in the property information form is what you stated, nothing else was said or done which might qualify this statement during the transaction and you have categorical evidence that it was not in fact true. The missing flood gates would seem to be particularly helpful evidence, as would the oral evidence of neighbours, who would probably need to confirm when the photographs were taken.

      On the basis that it does sound as though there is a claim, perhaps you have misunderstood the advice from your local solicitor. One of the first steps to take before committing to the cost and risk of any litigation is to consider whether or not the proposed defendant has assets to pay any judgment which you may be awarded by a Court, or any settlement sum agreed. If a Court makes a judgment in your favour (which includes approving a settlement agreement that the parties reach – called a Consent Order or Tomlin Order), this is really just a piece of paper.

      Once a Court makes a judgment order against a defendant, the defendant becomes a judgment debtor and the claimant a judgment creditor. If a judgment debtor does not comply with a judgment or court approved settlement agreement, then enforcement action would need to be taken through the Court. If a judgment debtor does not have any assets or only limited means to pay a judgment debt, then sometimes a judgment debt can be varied by the Court to make it payable by instalments. For judgment debtors that have very little means, this could potentially be as low as you were advised.

      It is always worthwhile taking steps to make sure the proposed defendant is not bankrupt (for individuals) or in liquidation (for companies) or subject to other formal insolvency processes. Registers of such individuals and companies are kept and normally, details are publicly advertised.

      Assuming the proposed defendant appears solvent (there is of course no way to be certain) then identifying property or other assets that they own is worthwhile. Again, public registers exist which can be helpful to consider.

      Various enforcement options exist and which can be applied for through the Courts. These include:-

      · Attachment of Earnings Orders – When the Court orders the debtor’s employer to pay a certain sum direct from their salary to the creditor

      · Charging Orders – When the debt is secured against the debtor’s property or shares

      · Bailiffs of High Court Enforcement Officers – These are individuals empowered by the Court to take items of value from the debtor in discharge of the debt

      · Third Party Debt Orders – This is when the Court orders a third party, which owes the debtor money, to pay such sum to the creditor. This would include banks where the debtor might hold accounts

      · Asking the Court to make an Order forcing the debtor to attend Court and provide information – Whilst not an enforcement option in itself, it can result in information about assets being provided

      · Bankruptcy or Liquidation – Again, not an enforcement method in itself, if a debtor cannot pay a debt, then they may be insolvent

      All of these options have benefits and drawbacks and do not guarantee payment of the judgment debt. Unfortunately it is true to say that “you cannot get blood out of a stone”; if a debtor has no assets at all, the prospect of the judgment debt being paid is low. However, judgment creditors will have a number of years to enforce their judgment, so sometimes waiting for the opportune moment is appropriate.

      As a final point, whilst three years have gone by, the basic position is that you will have six years from the date of completion (but possibly earlier) to bring your claim.

      We would be happy to discuss matters further with you, if you would like to get in touch.

        1. Thank you for your comment. We do have to point out, however, that we cannot give specific advice on this website. We are only able to provide general guidance, which should not be considered a substation for obtaining full legal advice.

  4. We are in the process of selling our house and we will need to complete the TA6/10 forms at some point. I am a little worried and unsure what/how to explain our neighbours behaviours and if it is classed as a dispute or if it is just reasonable. It depends on the person I guess but this is how I see it:
    We are between two neighbours which I have known for years and one in fact was a relative by marriage. We are on talking terms and they are friendly. We do/have had intermittent noise from both sides, one during the day and one during the night. Sometimes it is hardly noticeable, background noise and sometimes you can hear the words and singing. It can lapse into the garden if the weather is nice. I must add I have lived in a village location all my life and I am use to it being very quiet so this may not be a problem for other people.
    The neighbours on the adjoining side have had sporadic music on after 11pm, mostly during lockdown but sometime this is at weekends. It is then hard to get their attention to turn it down. I have previously called the police to try to get them to make contact. Although on talking terms and they are fine face to face we believe this could be backlash from my uncles marriage breakup and therefore personal (we heard my name being shouted).
    The neighbours not adjoining our property have music on during the day but this only came to light during the lockdown as it was hot and the windows were open. We had spoken to her but it didn’t really make much difference so we contacted the council and this has now been resolved. These neighbours are council tenants and don’t take pride in the property so we also trim the hedge top (their border) for them and we have enquired about a new fence between the properties too. We had done some corrective works on some rotten wood as it was an eye saw and we have a two year old and they have a dog, so it could be dangerous (not sure on the dogs nature but they have grandkids around we guess that it should be fine).
    For some people whom are use to quiet they may find this a little too noisy or the neighbours untidy but for others this may be hardly noticeable. What on earth should we disclose and how do you explain this without making it sound horrendous (when it is down to interpretation and you need to be there really) but without landing yourself in hot water by not disclosing enough…is it simply what I have put above?!

    1. Many thanks for your comment.

      There is no statutory definition of a “dispute” and you are correct in your assumption that the answer to such a question is quite subjective. This is relevant to any misrepresentation claim and does complicate things as a result. What one person considers to be a dispute may not be to another. With this in mind, there is no right or wrong answer per se. In law, grey areas always exist and it is about balancing risk and benefit.

      We have cited the case of McMeekin v Long [2003] in our blog “Property Misrepresentation Claims in Practice” (https://cunningtons.co.uk/property-misrepresentation-claims/) as an example of a misrepresentation claim which related to whether or not a seller was correct to answer “no” to the questions regarding any pre-existing disputes with neighbours. To the trial judge, it was clear that there was an ongoing dispute and there was therefore a misrepresentation, despite the seller having considered the matter closed.

      Another case relating to neighbour disputes which have not been disclosed in the property information form (noisy neighbours in particular) is Pedro v Thompson [2012]. In this case, it was determined that there had been no misrepresentation as the seller was not aware of the dispute and answered the enquires truthfully.

      These cases show that there is no black and white answer to the question and that each matter will turn on its facts. You should be able to find on the internet transcriptions of these judgments. A read of these may be of assistance in deciding what answers you may wish to give in the property information form and how the Court deals with such subjective answers.

      The only “safe” way to avoid future arguments is to explain the position as a whole, so the buyer knows what they are buying and what the “problem” is. Broadly, it is fair to say that if it is something that an average buyer might want to know about, then it is probably something which should be disclosed. A misrepresentation cannot occur if the statement given is accurate or true.

      The alternative is to say nothing and decline to answer questions on the point. A misrepresentation cannot (or would very rarely) occur if no statement is made at all.

      This may be something that your conveyancing solicitor is prepared to advise on and they would certainly be worth speaking to. We always make time for clients that instruct us to deal with their conveyancing but realistically it may not be possible to give a categorically clear “yes” or “no” answer, as there probably isn’t one. This can, for example, be contrasted with the question in the property information form regarding whether or not the property is in a controlled parking zone; clearly here it either is or it isn’t.

      We hope that this guidance if of some assistance.

  5. We are about to put our house on the market. It has a listed building next door which needs renovation and this is owned by our neighbours. When the neighbours moved in 3 years ago they immediately erected a fence around their property. At the time we queried with the council (anonymously) whether this fence was permitted within the curtilage of the listed property without listed consent as it was an eyesore. The council said they didn’t have a problem with the fence as it didn’t touch the listed building, but our query alerted them to the fact that the listed planning permission on the neighbour’s property had lapsed many years ago so and wasn’t live. They subsequently threatened enforcement action against the neighbour (who had commenced building work) who had to reapply for listed planning permission in order to continue to renovate their house. This took 2 years at considerable expense no doubt, and has just come through. Our neighbours are grumpy and blame us for this (we gather) although we have never actually spoken to them about it, or had any exchange of words for 2 years. Do we have to explain the full series of events on the seller’s property information form? There is no ‘dispute’ as such, we just have grumpy neighbours who we don’t speak to.

    1. Thank you for your comment.

      There is no statutory definition of a “dispute” and case law relating to undisclosed disputes with neighbours highlights the fact that answers given in the property information form on the point are very subjective. What one person considers a dispute is not necessarily something which someone else does and the Court will have regard to the fact that the property information form is designed for lay persons, without legal knowledge, to complete. The question would ordinarily turn on what a reasonable individual would consider to be a dispute.

      Whilst we cannot give specific legal advice on this website, by way of guidance, generally the only correct advice to minimise future risk is either to explain the position in full to the purchaser or not answer the question at all. From what you have written, we would suggest that most people would consider the circumstances as not amounting to a dispute, as there is no difference of opinion or argument between you, but we do not know the full circumstances. It would be up to a client, based on their appetite for risk, to decide whether or not they wanted to answer “no” to the question in the property information form or explain the position in full.

      For an example of a case in which there was a failure to disclose details of an ongoing dispute with neighbours, see our blog post “Property Misrepresentation in Practice”, under the heading “The seller told me that everything with the neighbours was fine”.

  6. My partner and I have recently completed on a 3 bedroom mid terrace property, prior to making an offer on the property we asked all the routine questions you would normally ask, structural integrity, neighbours etc. We also asked how long ago the property had been rewired, we have in writing from the estate agent that the house was rewired 12 years ago, who presumably got this information from the sellers. Not long after moving in we started decorating and removed a plug socket and light switch in one of the bedrooms and saw wiring that was definitely not up to current regulations (some of the wires didn’t even have a sheath on them) so we called an electrician who has told us the whole house needs rewiring and that in fact a lot of the wiring upstairs is pre 70’s and very unsafe.

    Rewiring the whole house is going to cost us in the region of £5000. This is obviously a very unexpected cost for us and something we would have factored into our offer when purchasing the house. We feel we have been directly misled by either the seller or the estate agent and are wandering whether we have any legal leg to stand on or if we could try and seek some recompense for this massive cost that we are now going to have to pay out for. It isn’t even just the rewiring, the house was built in 1867 so the chance of there being any conduit in the walls is extraordinarily low which will mean all the walls for light switches and plug sockets will have to be channeled out in every single room. We are having the upstairs done as quickly as possible because it’s in far worse condition and we are so worried when we go to sleep we turn all the electrical outlets to the upstairs off.

    This is obviously a very stressful situation and one we didn’t anticipate being in, we just don’t know how best to proceed now and whether we do have any grounds to seek compensation.

    1. Thank you for your comment, Damien.

      Unfortunately, we are unable to provide you with much in the way of input at this point. Whether or not this will amount to a property misrepresentation claim will turn on exactly what was asked and exactly what the response was. The Law Society standard conditions of sale, which are normally incorporated into a contract, would generally exclude oral representations and representation made by any party apart from those made in writing by the other party or their solicitor. Therefore what the estate agent told you may not be capable of forming an actionable misrepresentation unless the statement was made fraudulently or recklessly. This can sometimes be difficult to prove.

      Property misrepresentation claims can sometimes be straightforward. Sometimes they can be very complex, as the matter will turn on the subjective understanding of the party responding to questions asked and identifying evidence. It may very well be the case that the property was rewired in 12 years ago but was done so defectively, using outdated or existing wiring. At the moment, you have (which is probably right) the opinion of another electrician but this would probably not be enough without further input.

      If the property was rewired 12 years ago (so 2008), there should have been an electrical safety certificate. Information regarding the electrical installations would normally appear in question 12 of the property information form. Many solicitors will use the standard Law Society Property Information Form (TA6) which was updated in February this year (4th edition). It can be found here for ease of reference… https://www.lawsociety.org.uk/topics/property/updated-property-information-form-ta6-and-guidance-notes-published. Whether or not your solicitor should have pointed this out to you is also a point you may want to consider.

      You are correct to identify the fact that your loss is the opportunity to negotiate on the sale price. You may not have had enough information to know what the overall cost of the works would be at that point and the seller may have decided not to negotiate on the point anyway. Therefore your loss is going to be the difference in value for what you paid for the property and what someone would pay for it knowing about the problem.

      If you would like to consider the matter in more detail, please do get in touch with us.

  7. Hi

    I recently purchased a house in central london and have since discovered that the lower ground floor is suffering from rising damp in many areas. The Homebuyers Survey I commissioned did state that there were high levels of damp in the property and I asked for information from the sellers.

    The sellers stated that when they purchased the house a few years ago, they were told that it did register damp but it was normal for that age property. They also stated that they had a contractor round during renovations that said it didnt need damp proofing and there was nothing unusual for that age of house. They discloused that when they moved in tbey needed to repair some flooring in the bay that had been damaged due to damp from the old wooden windows. These had been replaced by new windows. They also stated that the bathroom registered high levels of damp but they had an extractor fans fitted and insulated the walls to overcome the problem. They stated in writting that although they are not disagreeing with the levels of damp noted by my homebuyers report – they have never seen signs of damp such as mould, water marks or flaking paint. They property was well maintained and well decorated throughout.

    They seemed very open and I continued with the purchase without getting a more detailed survey. However, the damp problem soon became evident a few months after moving it and there is some flaking of paint. I cant tell but it looks like they have also used damp seal paint.

    There were no questions about damp on the property information form from the solicitors and I didnt ask specific questions regarding damp, I simply asked for more information based on the homebuyers surbey report. In my opinion, although it seems they have been very open I believe I have been mislead.

    In your opinion do I have a legal option to seek compensation?

    1. Thank you for your comment.

      We are unable to provide specific legal advice which can be relied on in this blog. We would need to consider your case in much more detail and look at all of the relevant documents and correspondence before we could provide an informed opinion.

      However, we can provide some general guidance and from what you have described, we are not sure that you would have a claim.

      It sounds as though you effectively asked whether or not the property suffered from damp and you have been told that it did. Even if the issue was more specific, namely whether or not the sellers experienced any issues with damp and were informed not, then you would need to identify evidence that this statement was untrue. We suspect that this would be difficult to do.

      Whilst we would be happy to consider the position with you in more detail, we are hesitant about whether or not there could be a claim here.

  8. We purchased our flat last year. The flat is in a block of 100+ new built properties and we bought it directly from the builder. The builder showed us our parking lot when we were buying the property and it was indeed the best parking lot available. Since then, we found out that the builder has assigned and sold the same parking lot to another flat owner in our building. When raising the dispute, we are told that the other party will keep the parking lot. The builder suggested they will find a new parking lot for us and allocate that to us. They are taking too long and I would prefer to keep the same slot.

    Do I have a case of misrepresentation?

    1. Thank you for your comment and we are sorry to hear about this. Clearly the lack of a parking space would have a reasonably detrimental impact on any property. However, valuation evidence of the extent of this would be required.

      In respect of misrepresentation, this does depend on the terms of the contract of sale, including whether or not the Law Society Standard Conditions of sale applied. Normally, oral representations are expressly excluded from being actionable. This is to ensure that there can be no dispute later on about what was agreed, which should all be in writing. Often developers will have bespoke contractual terms.

      However, what you have written does sound strange. If you purchased a flat with the benefit of a parking space, then it is yours to own. We cannot see how the subsequent purchaser of the parking space would obtain what is called “good title”. It was not the developer’s to sell, as they had already done so. It may seem obvious but in law and put simply, it is not possible to sell something that does not belong to you. If this is what has happened, we are struggling to see how the buyer of the parking space would be able to register themselves as the legal owner. If you own the parking space, you would need to have signed a transfer to the new buyer.

      We would need to look at the contractual documentation carefully and also consider the terms of the lease before we could provide any advice. The terms of the lease will set out the rights and obligations of the parties and would need careful scrutiny. Sometimes, leasehold flats have parking spaces included in the same Land Registry title number. Sometimes, the parking space may be a separate title number or even have a separate lease. It would be necessary to work out exactly what the contractual position was.

      If you would like to look into the position in more detail with us, please do feel free to get in touch.

      1. Thanks for your quick response Mark!
        I have already bought the property and the parking space is clearly written in the agreement

        Just to clarify a few things if that helps
        – the parking space is noted in the deed
        – the same space is mentioned in the deed of another flat owner, they bought the flat and hence parking space before me. Hence they are the rightful owner I suppose.
        – builder is proposing to give us a new parking space instead of the original one. However I’m concerned because
        A) they are taking too long to find out which spot they want to allocate. It’s causing a lot of hassle for me
        B) the space I was originally allocated was quite convenient

        1. Thank you for your further comment.

          We are unable to provide specific advice which can be relied upon on this website. This is primarily for the fact that we have not considered your documentation and correspondence which would be relevant to matters.

          However, from what you have written, it appears that you have paid for something that you did not receive.

          We do not believe that you can compel the developer to give you another parking space, which would effectively be property belonging to them. The possible exception to this was whether or not it can be said that another contract had been entered into. For example, if you have agreed a settlement, which is just another form of contract (i.e. that you would not pursue a claim in exchange for a different parking space) then this may be capable of being enforced by the Courts. However, this is questionable on the basis that the terms agreed appear reasonably uncertain. A contract can be void at law for uncertainty.

          It is more likely that your claim lies in damages. This would be to compensate you for the loss of value to the property, which may be significant depending on the availability of alternative parking arrangements. This is something that a valuer should be asked to provide input on.

          You will also probably need to consider amendments to the lease and Land Registry title. A buyer may be unwilling to purchase a property which is not accurately reflected in these formal documents. This is not necessarily difficult to do but of course would require work.

          Please do feel free to get in touch if you would like to explore the matter further.

  9. Hello,

    We purchased a 3 bed semi-detached house in May 2020. The seller who stated he had been there since 1984 answered ‘no’ on point 4.1a on the TA5 form ((Have any of the following changes been made to the whole or any part of the property? Building works (eg. extensions, loft or garage conversion, removal of internal walls)).

    Our survey noted that some internal walls had been removed/altered and that it should have been carried out with building regulation approval and recommended to enquire with our legal advisers. We enquired with our solicitor and the seller said: “There has never been any walls removed don’t no why the surveyor put that on the report.”.

    We’ve now been in the house for a couple of months and experienced 3 different leaks. All the leaks have been a result of the shower which looks to have been the area our surveyor had noted regarding having building work done (internal wall removed). Upon having a builder and plumbing come and look at the shower and repair the leaks they have confirmed that it wasn’t part of the original bathroom and had been added (different spotlights vs the rest of the bathroom, ceiling texture is different where the wall originally was, new joists going the opposite way etc). We’ve also removed wallpaper that has revealed calculations and markings for the addition around the new walls. The addition to the bathroom is a shower which extends over the bottom of the stairs that would’ve included new pipework and drainage. We’ve spoken to our neighbours whose house is connected to ours and was built at the same time and they have shown us their bathroom which doesn’t include a shower over the top of the stairs and only has a bath (ours doesn’t have a bath).

    We’re looking to modernise our bathroom which will include the shower but we are hesitant to do any work on it now in case the new flooring/structure isn’t strong enough and will support what we want to do. Would we be in a position to make a claim for misrepresentation under the ground a new addition has been added to the bathroom without building regulations approvals and the seller has state that no work had been carried out at all?

    1. Thank you for your comment Jack.

      The fundamental point here is whether or not what has been said in the property information form and normally in writing between your solicitors and the seller’s solicitors is factually untrue. If it is, then there may be a claim for misrepresentation.

      However, we would be hesitant with a matter like this, as the value of the claim may not be as high as some clients often imagine. The basic position is that the loss someone suffers as a result of a misrepresentation is the difference between what was paid for the property and what someone would have paid for it knowing the truth. This is called diminution in value. The cost of repairing the situation is not necessarily the correct or standard measure of damages. We appreciate that this is an inconvenience and a worry, but whether or not this would have a material impact on the value of the property is questionable. This is something that would be worthwhile considering with a valuer.

      Putting diminution in value into context, we have acted in the past for a client who required substantial underpinning to their property. The cost of these works was in the region of £70,000. However, the property was in a highly sought after area, meaning that the impact on the value of the property itself was not as much as this. Put another way, a potential purchaser may be prepared to put up with some defects or bear the cost of some repairs themselves because the property represents a good investment.

      Having said this, it is conceivable that if presented with the correct information, your solicitor may have advised you and you may have obtained lack of building regulations approval insurance, which may have covered the cost of any rectification. The aim of any award of damages in misrepresentation cases is to put the aggrieved party in the position it would have been in had the misrepresentation not been made. It would be fairly standard practice for a solicitor to advise their client to consider insurance in the event of works being undertaken to a property which required building consent but this was not provided or obtained by the seller. Damages are intended cover the amount that the aggrieved party is out of pocket by. It may therefore be possible to argue that the cost of any rectification works should be met by the seller.

      However, every case is very fact specific. What facts in any particular case lend themselves to particular legal principles established in previous case law will differ.

      Do feel to get in touch with us if you would like to explore the matter in more detail.

  10. My partner and I purchased our house a couple of years ago and on the property information form the sellers said that they had not undertaken any structural works, and ticked no to any windows or glazed doors being installed during the time they owned the house. We have now started our own extension on the rear of the property only to find the left side of the house was just proper up by a jack and no lintel had ever been installed, similarly on the right hand side where there were patio doors (which neighbours have confirmed they watched the previous owner install) there is no supporting lintel above them either, leaving the whole rear of the house vulnerable, obviously this was not picked up in our survey as it is all encased in the plasterboard, would we have a case that we were mislead?

    1. Thank you for your comment.

      It does sound as though there is the prospect of a misrepresentation claim here. You have lost the opportunity to ask for building certificates and the like and as a result, have purchased a property which may be suffering from some structural defects.

      However, at the moment, you appear to only have the neighbour’s word that the seller installed the patio doors. We suspect some more investigation and evidence gathering would be required to be able to prove that works were undertaken during their period of ownership and not before this.

      If you would like to get in touch to discuss the position further, please feel free to contact us.

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