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

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

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

The Seller’s Property Information Form

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

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

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

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

We have dealt with cases where a seller has:

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

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

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

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

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

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

Diminution in value

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The moral of the story

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

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

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

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

This article is for information only. It is not a precise statement of the law and should not be relied upon as or for a 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.

 

124 thoughts on “My Seller Lied To Me!”

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

    Do I have a case to reclaim damages?

    Thank you.

    1. Hello Mark,

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

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

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

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

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

      We hope this helps and wish you the best.

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

    2. Good afternoon,
      We purchased a cottage in December 2017, on the property information form where the vendors were asked whether any extensions had been built, they answered no. We queried this as it was obvious that there was at least one extension.
      They then said that they didn’t know when this had been built.
      There are issues with the integrity of this extension and we have since discovered from neighbours that the vendors built this extension themselves .
      Have the vendors been fraudulent in the property information form? Thanks.

      1. Hi Phil

        Thank you for your post.

        Presumably you believe that the sellers built the extension themselves and denied this because they knew that it was not built correctly.

        This is a situation which falls into the much debated area of “half-truths”. If someone is silent on a particular point, then it would be unusual for a misrepresentation claim to arise because the person would have no false statement of fact to rely on when entering into the contract. Likewise, is someone tells the “truth” then it cannot be said that the other party was misled.

        However, the question arises as to what happens when someone says something which is a half-truth; something which might be true (they may very well no recall exactly when the extension was built) but because of what is not said, is in fact misleading.

        There may be some scope here for a claim, however the fundamental issue is going to relate to whether or not it can be said that you were misled about the construction aspects of the extension.

        It also strikes us that if it was discovered that there was an extension, this may very well have put your solicitors on notice that they needed to check for planning permissions and building control certificates. An extension should normally have a building control final certificate, which confirms that it complies with building regulations. There are some important caveats to this. If the seller had lived in the property for many years, then the extension may have been constructed at a time which makes future enforcement action unlikely or some of these requirements may not have been relevant. Also, the question of whether or not any survey was undertaken is something which needs to be considered. Structural defects are normally within the remit of any surveyor appointed to inspect the property. Sometimes these risks can be minimised by purchasing an insurance policy.

        Whilst hesitant to suggest that there is definitely a claim here, we would be happy to look into the position in more detail for you if you would like to get in touch.

    3. We completed on our sale two weeks ago when we got the keys it was clear that in the family room the wood flooring had suffered some pretty bad water damage. I couldn’t see any signs of where the water had come from and presumed it must of been caused be a historic leak, 10 days later it rains for the first time not heavy and water is coming up through the flooring! On the viewing the vendor had a rug in that exact spot with a table over the top so we couldn’t see the damage, on the TA6 form they stated the property had never been flooded. This is clearly a lie, where do I stand? Thanks

      1. Thank you for your comment Sarah.

        Depending on what was said in writing during the transaction, and the most obvious starting point is the property information form or TA6 as you have identified, then there may be a case for misrepresentation.

        However, at the moment, you do not appear to have proof that there was a historical flood. To a certain degree, it is not vital that the seller was aware that there was a historical flood, or deliberately concealed this if there was. What is important is to show that there was a historical flood.

        In all litigious matters it is important to bear in mind that if settlement cannot be achieved, the matter will go before a judge for determination. The judge will approach the case objectively and without taking sides. The burden of proof lies on the claimant to prove a position “on the balance of probabilities”. This means that a claimant must prove that their version of events is more likely to have occurred than the defendants. It is not for the defendant to disprove what the claimant says. You can presumably see the counter arguments that could arise, namely that the staining on the floor and which was covered by the rug was not caused by a flood but by something else. It would be for a claimant to prove, on the balance of probabilities (that is, more likely than not), that a flood did occur. In order to prove this a report from a suitably qualified surveyor or engineer would likely be required, unless there is some other evidence that a historical flood had occurred.

        Approaching an expert for this sort of report can be done in several ways. Firstly, a decision to make an approach individually or jointly with the proposed defendant should be considered. Secondly, if Court proceedings are likely, some thought to obtaining a report which complies with all the requirements of the Civil Procedure Rules (which govern the conduct of litigation in England and Wales) should be considered. This reports are more time consuming and therefore more expensive. Whilst reports which do not comply with the Civil Procedure Rules may be quicker and cheaper to obtain, they are of less probative value should the need to rely on them later arise.

        Do feel free to get in touch if you would like to consider matters further.

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

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

    1. Thank you for your query.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  8. Hi,

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

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

    What action can I take?

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

    1. Thank you for your enquiry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    1. Thank you for your query.

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

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

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

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

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

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

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

    1. Thank you for your post.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    1. Hi Amanda

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

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

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

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

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

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

      1. Hi thank you for your reply, i have only found out you replied this morning I didn’t think the post had posted back then.. can I ask please so if it’s established and is clear fraud (we have since scrutinised the Conveyancing file and there are numerous fraudulent and reckless things in it), if their daughter brought the house they are living in cash, just before our sale, we’ve checked and it’s still in her name but they have spent the proceeds from our sale on extending and renovating that house and are living in it… on judgement can that house become a beneficial asset and become the asset under proceeds of crime and have a charge put on it ? the insurers are ignoring the fact they have had £305,000 cash and have not brought a house, they will not say it’s over 51% chance of recovering the money back but surely it is and the law will not allow this ?

        1. Thank you for your comment Amanda. This isn’t really the forum for us to provide detailed legal advice. We can only really provide general pointers, as every case is different, and these should not be a substitute for specific legal advice.

          It is not illegal for someone to purchase property for someone else, although we do not specialise in criminal law. It is also not illegal to spend money on someone else’s property, although this may sometimes entitle the person spending the money to acquire an interest in the property which is of value. As for an “established fraud”, there is legal definition of this. The concept of fraud relates primarily to the intention of the parties. Whether or not the act in question was fraudulent depends on what the intention was in taking those steps and this can be hard to prove. It sounds as though what could have happened, but without exploring the position in considerable more detail it is impossible to say, is a transaction to defraud creditors. This is when someone deliberately takes steps to put their assets out of the reach of a creditor. The ability to challenge such a transaction would generally accrue to a trustee in bankruptcy, but for this, someone would need to be adjudged bankrupt. In your matter, this would mean obtaining a judgment which is over £5,000 and then petitioning for their bankruptcy.

          It is generally a term of an insurance policy that there must be both a reasonable prospect of success and a reasonable prospect of recovery. Insurers will not cover events which do not provide this. We cannot really provide any input on the terms of your insurance policy without considering this in detail.

  18. My daughter & son in law bought a detached house with a 2 storey side extension, joining it to a detached garage 4 years ago. I think extension was completed approx 12 – 18 yrs ago. Due to a misunderstanding no survey was done. I did not see the property till after purchase & noticed that I could physically feel the rise under my feet where the extension met the original, hairline cracks or protruding plaster (as though wall ties or render had been added then covered) at certain places where joints met extension. A vertical crack (settlement possibly?) In corner of extension. I think the extension is built over the drains. Although I am no expert (although having read so much info since I do feel I am much better informed now) i wished I had viewed before purchase as I would have asked a lot more questions & insisted they had a survey. I didn’t want to alarm them as naive 1st time buyers (but i bet they didn’t ask probing questions or request information). Apart from me no one else seemed to think any of these things were important, plus some relative who said he was a builder said it all looked ok so I put it to the back of my mind. A neighbour said the house had had a thorough redecoration by ‘experts’? Before selling & that they thought the extension had been done by the sellers brother who she later fell out with. I just thought that perhaps it was a DIY extension and not perfect but all would be ok. After all everything had to be signed off, it wasn’t going to fall down was it?! Unfortunately they are now divorcing & she is very depressed & struggling for money. She wanted to keep the house& is having to buy him out based on house having increased in value. We have been helping her to renovate & redecorate. It may be my imagination but I think the corner crack mentioned before may have widened to approx 4mm & looks as though it follows as a hairline crack to ground level. I’m not sure if it has been filled or not by previous owner. My husband insists all of this is fine & I am hugely over reacting. I admit I am panicked but dont want to cause alarm or stress & I am imagining worst case scenario of subsidence, jerry builder, being unable to sell or afford mortgage, house being worthless, no buildings insurance & an expensive & hopeless legal case causing extreme depression & hardship. I feel I cannot get anyone round to investigate or diagnose so am surrupticiously trying to get as much advice as possible myself. The seller of house left no forwarding address & I don’t know her name. How can I trace her, how could we prove she covered up issues, would a legal case be worth it, how can I check all building plans/regs were correct, how can I see plans with drains etc, find out who builder was & if any guarantee, how to get a copy of ta6 & ta10 forms, check solicitor advised fully? If I get surveys would insurance have to be informed? If she sold what on Earth would she put on TA6, she is distracted & oblivious to a lot of this? Could she rent the house out or have a lodger during all this? Could she get any financial help from her husband as currently he is still on the mortgage? I am confused what difference is between chartered/building/structural surveyors or engineers/RICS etc. There also seems to be a lot of home owners complaining these people miss things & caveiats mean they are not accountable. Where do I start?

    1. Thank you for your post.

      Because of the amount of time that has gone by, the prospect of brining any sort of claim seems unlikely. The Limitation Act 1980 imposes deadlines on potential claims to ensure that people are not at risk of a claim forever. The basic limitation period is 6 years for claim based on a contract, like misrepresentation. For cases of fraud, the limitation period is significantly extended but proving fraud is very difficult. After such a long period of time, it is unlikely that you will be able to obtain evidence about what happened and the seller’s state of mind, even if they can be traced.

      The other aspects of what you mention, namely the breakdown of the relationship and sale of the property, relate to family law. We have a Family Law Department who may be able to assist your daughter if you would like to get in touch.

  19. I bought a semi-detached property on 29-Jan-2014. Viewings, searches and exchange of contract was between Nov-Dec 2013. I had some concern about the rear boundary when I viewed the property, as there was no solid fence in place between the two rear gardens BUT there was a couple of wooden fence posts sticking out of overgrown plants. So I asked my solicitor to make sure she pays extra attention to the boundary line and checks if there is any dispute with neighbours. During the purchase process told my solicitor that if there is a dispute with neighbour for anything, especially land and boundary, then I would walk away and look for another property. I arranged to visit the property in the presence of the estate agent to ask the seller about the boundary lines on either side of the property. The seller confirmed to me, in presence of the agent, that there were no dispute of any kind with the neighbour. She also showed me the boundary lines in either side of the property and pointed to the fence posts as the boundary line.

    I did not move in to the property after completing the purchase as it was in desperate need of refurbishment. I also wanted to add a rear extension to improve dining-lounge size and lighting. On completion day I got the keys from the agent; went to the property to check that the property was empty. The next day I gave the keys to my project manager to start the refurbishment and rear extension project. The project started on 09-Feb-2014. Sometimes in Mar-2014 my builders told me that there was some new paintwork, a new fence post, and some chicken wire connecting the new fence post to an old one at the back of my property, where I was planning to build the extension. They had taken a picture of it and sent me to check if they could remove the wires and fence post as they needed to demolish the wall for the extension work. I confirmed that they could remove it as I had no knowledge of such work. I later visited the property to see it for myself. It looked very odd. I didn’t really understand why and who has installed the fence post and wires, and painted the wall a different color than the rest of the house. I asked my project manager and he didn’t have a clue either. The neighbouring property had an old extension. So the new paintwork was on the flank wall of the neighbouring extension AND a part of my rear wall (a stripe about 30 inches but only in the ground floor level!). The extension was built inside my property and up to the paintwork as we had planned to leave a gap with the neighbouring extension to access flank walls for repairs if needed in future.

    I moved to the house in Jun-2014 when the work had completed. Then my neighbour started to complain that I had built my extension on his land and took me to court. An expert surveyor report for the court concluded that although I had built extension in my own land, there was possibility that the foundation might have been up to the boundary line. So the expert concluded that I had trespassed into the neighbouring land and my neighbour was awarded damages and full cost. It cost nearly £75,000 in damages and fees.

    I learned from my neighbour’s witness statement (issued in Apr-2017) for his case against me that he had had been disputing the boundary line at the rear of the property for years and had managed to make the seller to create a boundary line where he wanted it to be, just before completion of sale. So I learned in Apr-2017 the story behind the paintwork, the fence post and chicken that my builders had discovered. According to my neighbour’s statement at the Trial, this had happened just few days before I completed the purchase in Jan-2014. We had exchanged mid-Dec 2013.

    I raised the issue with the property ombudsman as my neighbour had been in touch with the estate agent regarding his boundary dispute with the seller. He has stated in his witness statement that after raising the issue via the estate agent the seller created the new boundary line. The estate agent denied any knowledge and involvement despite my neighbour’s witness statement (which was signed by him and verified by his solicitor and used in court against me). So the property ombudsman closed the case saying the estate agent did not have knowledge!!!

    I talked to a solicitor about the issue as I had came across couple of high profile court cases with sellers not providing truthful information in property information packs (PIP). After spending some money to trace the seller (they refused to give any forwarding address when they sold me the house), my solicitor managed to start a letter of claim but the seller’s solicitor claimed that there is a clause in the purchase agreement that the buyer is not entitled to raise any misrepresentation claims!!! They referred to the clause and I had to trace all the conveyancing work done by my solicitor at the time to find out what the seller solicitor was referring to. It turned out that there was no such clause in any version of the paperwork! The seller referred to a comment on the PIP in section related to boundary lines, which was saying a fence post on *RIGHT* hand side of the property was moved 6 years ago (that would have been sometime in 2006-2007). Their solicitor claimed that comment about the fence post move should have put the buyer on notice with regard to boundary line! After some checks it turned out that there was no fence movement on RIGHT hand side boundary but there was a fence post on the LEFT hand side which my neighbour claimed at the Trial that the fence post was moved against his will! The PIP clearly defined how RIGHT and LEFT should be defined when filling out the PIP; the form clearly states ‘Looking at the property from the road in front of the property…”. I believe the seller deliberately lied to me when I arranged a viewing to ask about boundary line and if there was any dispute. I also believe they provided false information in the PIP to put me in a difficult situation. After almost 1.5 years of back and forth letters my solicitor now agrees with me that I might have a fraudulent misrepresentation but he is not an expert in property law and PIPs. So I want to know what your verdict is and if I have a case, whether you can point me to an exert to issue a letter of claim. I don’t want to ruin anybody’s life the way my neighbour ruined mine but I want the seller to know the consequences of his unlawful actions. I am prepared to settle out of court via ADR but they don’t seem to even accept what they have done to me.

    sorry for long description. I thought i give as much information as possible, so that you can advise better for the next step.

    1. Hi MM

      Thank you for your post.

      Obviously the question about disputes with neighbours is asked in property information forms to avoid this sort of thing from happening and we are sorry that it has happened to you.

      We are sorry to say that we think it is unlikely that you would be able to pursue a misrepresentation claim. The reason for this is that it seems to be more than six years ago that the misrepresentation took place. The Limitation Act 1980 would probably operate to prevent a claim being pursued. Fraud is the exception to this but it is a very high burden of proof to show.

      Whilst we would be happy to go through the paperwork and give you an idea of the possible claims you could pursue, it sounds as though this may be quite a time consuming job after six years of litigation and argument. Because of the time that has gone by and the fact that you may be out of time to bring a claim, you might not want to incur the legal charges in further investigating. However, if you would like us to give you an idea of the sort of cost involved and discuss any preliminary points, please do feel free to get in touch.

  20. We bought a barn conversion in 2018 which was advertised with a one bedroom self contained separate detached annex. Which was a conversion over the double garage. It now transpires that there was no planning permission obtained and we have now been served with a planning enforcement. Since the sales particulars advertised this as such, and neither solicitors acting for the seller and ourselves sort to ascertain check such planning. Do we ave a clear case for misreresentation but who is liable

    1. Hi Christopher

      Thank you for your post and I am sorry to read this.

      This sounds less like a misrepresentation matter and more like a professional negligence issue. For a misrepresentation to occur, you would needed to have been actively mislead about the issue of planning permission. If the seller said nothing about planning permission, or a lack thereof, then it is unlikely that there is a misrepresentation.

      Issues with respect to a lack of planning permission would normally be identified in searches undertaken by solicitors. Whilst solicitors will rely on the results of searches, they are not infallible. The question will be to what extent would this issue have been discoverable and what should have been advised about it. If there is a lack of planning permission, sometimes the issue can be resolved with indemnity insurance. However, this sounds like it is not an option if you have been served with an enforcement notice.

      You would probably be better off giving us a call to discuss the issues in more detail. If there is some scope for a claim, we can give you an indication of the sort of cost involved and what would need to be proved. When calling us, please ask for Mark Taylor.

  21. Bought an apartment in grade II listed mansion house with four leasehold apartments. Seller stated no issues with neighbours. I since found out that they had complained to the management company about him letting out his property to Air bnb. Lease does not allow subletting. I’ve been there seven weeks and have had malicious communications from the other leaseholders trying to demand I cannot have door mats outside my front door in the communal area and I can’t have net curtains in my windows as no becoming of a grade 11 listed building. I also have my own garden and they are demanding that I manicure it so that it doesn’t look bad when they look outside their windows!! Can I claim misrep when these people complained about the previous owner?

    1. Thanks for your post, Amanda.

      We are sorry to hear about this. It isn’t that uncommon that sellers might seek to suppress information about previous disputes with neighbours. Nobody wants to purchase a house where there is an ongoing dispute. Boundary disputes are a regular example of this.

      A failure to mention historical disputes may very well amount to a misrepresentation. However, for any claim to be pursued, there has to be both a causal connection with the false statement of fact and the loss suffered. For example, if you were misled about the condition of the roof, it would not really be open to say that there was a misrepresentation in relation to, for example, the condition of the windows.

      It would not be unusual for a freeholder to complain about the property being sub-let as an Air-bnb. This again is reasonably common. However, I am hesitant to suggest that the failure to disclose this particular issue would be actionable when the disputes which you are now subject to differ, unless what you are saying is that the other neighbours raised the same issues with the seller previously as they are raising with you now.

      Whilst we could provide some advice on your rights and liabilities under the terms of the lease, we are not certain that there would be much more we would be able to assist you with.

      Having said this, we are an approachable firm and you are more than welcome to contact us to discuss the problems and see if we can add some cost effective benefit to the situation for you.

  22. We bought a property in April 2017 which had been built by the seller 4 years previously. The seller stated in the property survey (as part of the single survey in scotland) that no alterations had taken place to the property in the time that they had owned the property. We subsequently sold the property in June 2019 as during conveyancing of our sale the new buyers’ conveyancer picked up on ‘missing consents’ for a permanent staircase from the upstairs of the property to a converted attic space. Long story short but the work was ‘non-compliant’. After lots of back and forth the buyers agreed to a reduction in price and a title indemnity to proceed with the sale. As we had a new build we were about to lose out on we went for this option despite it leaving us £4k out of pocket from the agreed sale price. I also did this on the advice of my conveyancer who advised we would have a claim against the surveyor who carried out the original single survey for our purchase in 2017. Long story short, I have exhausted the complaints procedure with the surveyors and they are not accepting liability (stating that the guidance for the conveyancer was the same in the single survey at the time of our purchase as it was at the time of our sale) therefore, they pointed to professional negligence on the part of my conveyancer. I have now started a process through the formal complaints procedure for the conveyancer to try and recover my material loss of £4k but they in turn are pointing the finger at SELLER MISREPRESENTATION at the time of the original purchase in 2017! All I know is that I’m £4k out of pocket and no-one seems liable – what are my options to go after the seller? I also read that it might be time barred also? Cheers.

    1. Hi Del. Thank you for your post.

      We fully appreciate the frustration. You haven’t done anything wrong but have been stung with a bill of £4,000.

      We would need to have a look at the correspondence to work out exactly what has happened, who said what and who is at fault.

      Surveyors and solicitors are both professionals and the retainer with them and their terms and conditions will be the first thing to consider when deciding whether or not there is a professional negligence claim. Certainly not spotting a lack of a building regulation final certificate would potentially be negligent for a solicitor, but the obvious question which seems to have arisen is whether or not the solicitor had any reason to suspect that this was the case when you purchased. As for misrepresentation, this will turn on precisely what you were told in writing leading up to exchange and completion.

      What we do note from your post is that you mention a single survey. Our understanding of this is that it is something prevalent in Scotland, rather than England and Wales. Scotland has its own legal system and we are only able to advise on the law of England and Wales. If the property isn’t based in England and Wales, it is unlikely we will be able to assist, you would need a lawyer that specialises in Scots law.

      If we don’t hear from you, we wish you every success.

  23. Hello – we purchased a property last year and got the keys in early November 2019, the property form that was filled out contained an awful lot of “not that we are aware of” rather than “yes” or “no” when it came to history sections including any water issues/leaking/damp etc.

    On the day we got the keys, we did the usual walk around the inside of the property and discovered that there was water coming down the inside wall of the box room, this is still leaking as we are struggling to identify how the water is getting in however we have stripped some wall paper back and some of the liner on the ceiling and it is very evident that this has been an ongoing issue that they have put lining paper over and painted. Can we do anything about this?

    Also, when cleaning the en-suite for the first time I realised water was coming through the ceiling into the kitchen, a plumber had to cut a hole in the ceiling and said it had been leaking before/had been cut out before as he could see the special tape they use to put a cut ceiling back in place.

    Along with this, (over time) there was also a small leak in the spare bedroom, a leak by the en suite window, leaks everywhere up the stairs to the roof which have all become apparent over the 4 months we have been in the property and most recently, water coming through either side of the patio doors.

    The whole house had been recently decorated with, it seems, lining paper then paint in most areas and it has led me to think that the sellers really knew about all of this. Do we have any options here?

    Thanks so much

    Lucy

    1. Hello Lucy.

      Thank you for your post. This sounds horrible and you must be so disappointed.

      First and foremost, you should check to see if you are covered by your buildings insurance.

      However, from what you have said, it sounds to us that you do in fact have quite a reasonable claim.

      It sounds as though there has been a deliberate concealment of issues. This in itself would not necessarily give rise to a claim, as it is the buyer’s responsibility to check what they are buying by instructing a surveyor. However, the vast majority of surveyors will include in their terms and conditions caveats which state that they will not open up walls, look behind furniture, under carpets or remove wallpaper and the like. To an extent, this is understandable, a seller would not want to be left with a wall stripped of wallpaper if the transaction did not proceed. However, it is still for the buyer to insist upon whatever checks they want and make a decision to accept the risk or walk away if this request is refused.

      The reason why you probably have a reasonable claim is because of case called William Sindall plc v Cambridgeshire County Council [1993] EWCA Civ 14.

      In this case, the seller stated in the property information form “Not so far as the vendor is aware” in response to the enquiries made. The Court treated this as an implied representation that the seller had taken steps to investigate and answer. In short, the seller should not have answered the question at all if they did not know the answer to it. In fact, the standard TA6 form (this is the property information form) published by the Law Society and used in countless transactions warns the seller to specifically say so if they do not know the answer to a question.

      Please feel free to get in touch and we would be happy to elaborate and provide some options for you.

  24. We purchased a property in May 2015 which had a septic tank which discharged into a water course, we were aware of the septic tank (but not where it discharged) when we purchased the property however we were not aware of the new regulations and legislations regarding the tank and how they must be replaced until 2017 when we applied to extend our property. We have subsequently had to outlay approximately £10,000 installing a new sewage treatment plant but feel like we should have been informed by our solicitors regarding the original tank. Especially seeing as it was law that the system should have been upgraded if sold from 2015… we are now wondering if we have any case against the original conveyancers for failings in how the handled our purchase?

    1. Thank you for your comment, Sasha.

      This is unlikely to be a case of misrepresentation unless, for example, something was mentioned by the seller or their solicitors which was not factually accurate.

      However, there could be scope for a negligence claim depending on what you were advised at the time. It does not sound as though you were advised about the position by your solicitor and we are sure you would have remembered something like this. However, we would certainly recommend you review the correspondence that you received from them, just in case something was set out in writing, which would probably be enough to provide a defence for your solicitor. This information would often appear in what is called a “report on title”.

      On the assumption that no advice was given, it was in January 2015 that the relevant new legislation was introduced. However, that legislation has undergone a number of changes over the years. If at the time there was an existing or impending requirement to upgrade your system, which there may have been, then you probably should have been advised of this and given the opportunity to negotiate the position with the seller and who was going to be responsible for this.

      Clearly you would have insisted that the seller undertake the work. However, in professional negligence claims, the Court will look at what the hypothetical position would have been had the correct advice been given. There is no guarantee that the seller would have agreed to undertake the work or apply a discount to the purchase price (but there is a good possibility of this if they were going to face the same problem with an alternative buyer).

      The loss you have suffered is therefore not necessarily the full cost of undertaking the work. What you have lost is an opportunity, in this case, you have lost the chance to negotiate. The Court will consider the likelihood of the seller having agreed to a discount representing the full cost of the works. If there is a possibility that the full cost might not have been agreed, then it will often apply a loss of an opportunity “discount” to the value of the claim. Put in more simple terms, if the Court considers that there was a 90% chance that the buyer would have agreed to a discount on the sale price or undertaken the works, then it would award 90% of the losses you have suffered. For example, if a property is in a highly desirable area, a purchaser may be more inclined to accept that they would have to undertake work at their own cost in order to secure the purchase and a seller more likely to see if they can find a buyer who is. This is the generally the same way the Court assesses losses for most professional negligence claims, such as claims against surveyors.

      Do feel free to get in touch with us if you would like us to look into the position for you.

  25. Hi I have a question about non disclosure. We purchased our property, exchanging contracts 12/2015. When we moved in 15/01/2016 we found a note pinned to a notice board, telling us about a sub basement room with a pump that removed water on a float switch basis. It is part of the old mill and not visible. This “room” was not mentioned in the sales literature- vendor used on online estate agent. Agent informed me they were unaware of it. It was not brought to our attention when inspecting the property. Access is via a small hatch in the basement. The surveyor was also unaware of it and there is no mention of it in the survey. Do we have any recourse due to non disclosure? Thanks

    1. Thank you for your comment. We think it is unlikely that you have a claim for misrepresentation. There would normally need to be some statement made which actively mislead someone about the facts.

      Also, a constituent part of any claim is “damage”. This is the financial loss that someone has suffered by reason of the conduct complained of. We think that it is unlikely that the presence of a small room would have any significant impact on the value of what you have purchased.

      We may of course be wrong in this respect, but from what you have written, we do think you would struggle to show that you have suffered a loss.

      1. Hi, thanks for your reply. Perhaps I wasn’t clear about the space below the basement. It is not a “small room”, it measures approximately 14×14 ft and about 15ft deep. We were recently flooded and much of the water rose up into the basement from this cavern below, causing a lot of damage to the walls and contents. The issue is one of water ingress and maintenance costs, none of which were apparent. Thanks

        1. Thank you for the clarification Kieran.

          The issue seems to be less to do with the presence of the room but more likely issues regarding the flooding. Presumably, no mention of historical flooding appeared on the property information form. It may be the case that the property has not flooded before but if it has, then there very well may be a case of misrepresentation. You will need to somehow find evidence of historical flooding, if this is the case.

          As for your damages/losses, these are not necessarily the cost of remedial works. The starting point for the measure of damages is what a reasonable person would have paid for the property knowing about the situation, namely that the property had flooded historically. This would require input from a suitably qualified surveyor.

          Do feel free to get in touch if you would like to consider matters further.

  26. Hi. I purchased a property January 2020. Since my daughter moved in (as my tenant) we found numerous problems.
    1) had boiler services as they had no record of when serviced. The gas man said the wiring was totally dangerous, it looked like they installed it themselves. In the sales particulars and prepurchase discussions with the estate agent the vendor stated the boiler was o stalled on 2016
    The property information form (which I have only just received states NO KNOWN regarding when the heating system was last serviced or installed.
    2) due to the concern the gas man raised in addition to noticing a live wire just hanging from a board with load of electrics on it including a fuse box. We got an electrician to do a report.
    He condemned the property electrically. Some one had added sockets and just wired to the nearest one with no usual electric wire direction (critical usually) one wall had sockets but no wiring in it (the wall had been moved) but again no mention onthe property information form. (Albeit we don’t ‘ow when this was done). The electric junction box had been wired in a very dodgy way, not by a competent person. The electrician says the box is only a few years old.
    Again on the property information form, regarding the question about wiring they stated no.
    3) A few days after my daughter moved in, she gotten flee bights all over her. Got pest control in and the whole house was completely invested. Fumigated twice but could. It do any cleaning for 10:days after each time, Yuck.
    4) the bins were left full and overflowing, the carpets and blinds covered in tons of cat hairs. The grills on the top of the radiators filled to the top with cat hairs. Bathroom soap scum everywhere.
    Do I have a case for. Misinterpretation, regarding the electrics and boiler? My electrician will be able to prove if the installation was after 2006.
    Many thanks

    1. Thank you for your comment, Penny.

      A misrepresentation occurs when a false statement of fact is made about something which induces the other person into a contract. Not mentioning something would not ordinarily be enough for a claim. Likewise, an oral representation would also probably not be sufficient, as the standard conditions of sale which most property contracts adopt would operate to exclude verbal representations from being actionable.

      However, from what you have described, there may be scope here for a claim. At a basic level, stating that it is not known when the boiler was installed, when the sellers installed it themselves could be a misrepresentation. Likewise to suggest that there had been no rewiring may also be actionable. However, you will need evidence and this might be difficult to obtain.

      You really should have been supplied with the property information form before you exchanged contracts.

      Pest issues, but more specifically leaving the property in a clean and tidy state is also something which the seller generally promises in the standard documentation

  27. Following our move into the property we purchased endof February we have uncovered major issues with the house. Some of the paperwork we found in the house that the owner left behind revealed that the roots of the trees adjacent the house are causing the house to subside. The owner had written a letter to the owner of the land next door, which I have a copy of, asking him to apply for the the trees to be taken of the Tree Protection Order so they could be fell so to stop the subsidance. The trees are still there. The owner had covered up cracks in the building by placing wooden boards over them. In the garage he used other materials to hide the cracks. In the property information form he never mentioned that he had a dispute with owner of land next door and he covered up the cracks to hide the major damages. The owner has acted in a fraudulent and dishonest way and went against the legal protocols when selling a property.
    This is a very sad situation as we had purchased this property so to look after our elderly parents and now all is in jeopardy.
    What can be done legally from our part?

    1. Thank you for your comment Ben. This must be very distressing.

      Subsidence can be a serious issue and the first thing you need to do is get hold of your buildings insurer if you haven’t already. They will normally appoint a structural engineer to monitor any movement in the property and decide what can be done. You may also have legal cover. You do not always have to appoint your insurer’s panel solicitors, if a claim exists.

      Sometimes the effects of subsidence (and heave) can be historical and there is no further risk of movement as a result of this. If further cracks appear, then this can sometimes be as a result of weather conditions. Houses do also tend to expand and contract in periods of warm and cold weather which can lead to superficial cracks appearing. Sometimes settlement cracks appear in property, depending on its age. Obviously we cannot give you advice in this respect; this is the remit of a suitably qualified structural engineer. Our comments are based on historical cases we have acted on because the cause of the cracking is important to establish.

      If the cracking is as a result of subsidence as a result of desiccation (when the roots draw moisture from soil, causing it to contract), then an arboriculturalist might need to be appointed, to confirm which trees are causing the problems and advise on the best way to deal with the situation. Sometimes, removing the trees completely can do more harm than good, as any roots would quickly rot and this can cause problems. Sometimes lopping the trees over a period of time is more effective and this can gradually reduce the roots. A lot would depend on the species of tree and how pervasive the root structure is. Sometimes concrete root barriers or underpinning is recommended. Again, this is all something for an expert to advise on.

      From a legal point of view, there might be a claim against your neighbour for nuisance and trespass, if the tree roots are encroaching onto your land and causing the damage. This is why experts are required, to prove that there is an encroachment, that it is this causing the damage and the extent of the damage and potential financial loss.

      You may also have a claim for misrepresentation against your seller, if there has been a deliberate concealment of issues. Normally there would have to be some sort of untrue statement of fact. The risk here would be that merely stating that there were no “disputes” with the neighbour might in fact be true or a statement of opinion, depending on how someone defines the word “dispute”. There is no legal definition of this and the Courts will generally apply a test based on what a reasonable layperson would understand from the question. Certainly the letter you have would indicate that a dispute existed and would likely be a good starting point.

      In addition to this, it might also be worthwhile trying to establish if the sellers have ever made any insurance claims or had underpinning undertaken, as the standard seller’s property information form contains questions on this which, if answered falsely, could also bolster a misrepresentation claim.

      As for your surveyor, whether or not this is something that they should have spotted is also something to consider. This will depend on the scope of their instructions and the extent of the survey they were instructed to undertake.

      Subsidence and heave cases can become technically complex and as a result of this, can be expensive in terms of the legal costs. This is why your insurers should be the first port of call. However, do feel free to get in touch with us if you would like to discuss further.

  28. Thank you Mark for your prompt and detailed reply.
    We have been in touch with our insurers and we were informed that since this was an existing issue they would not be able to help us. I do not know if that protocol is correct?? . Also we are finding out that the previous owner had lied on many other numerous things. We ended up right in middle of it all.

    Best regards

    Ben

    1. Thank you for you further comment, Ben. We have responded to you by email in the interests of maintaining confidentiality.

  29. Hi – I have just recently completed (January) on my purchase only to find out the sellers of my property have not disclosed the following two facts on the seller information form:-

    1 – They had a long running dispute with my neighbour due to him failing to control vermin in his property resulting in vermin in my property (I have had 2 other neighbours confirm that they were in dispute and had disclosed this to the relevant local authority departments during their 5 year ownership of my property on many an occasion).

    2 – They had constructed a rear extension without suitable building regulation approval and again omitted to disclose this also (again a neighbour has confirmed this was constructed within their tenure) stating on the seller information form that they had made no structural alterations to the property at anytime.

    Any help would be gratefully received as I’m finding the whole situation very stressful indeed.

    I would like to know my chances of pursuing a mis-representation claim.

    1. Thank you for your comment John.

      A long running dispute, or indeed any dispute with neighbours, should generally need to be disclosed in the property information form, so there may be a case for misrepresentation here.

      As for the extension, failing to explain that there was building regulation compliance may not amount to misrepresentation. If they suggested in some way (and normally in writing) that the extension did comply with regulations, then this could be a misrepresentation. The existence of an extension would also ordinarily trigger your solicitor to ask for details of the same. If this did not happen, there may be a claim here for professional negligence. We would need to consider the terms of their retainer and what, for example, was disclosed during the transaction, including what was written in any survey undertaken.

      However, it appears here that your sellers suggested that they did not undertake any alterations during their period of ownership but you believe this to be untrue. You will need to obtain evidence of this. A starting point for this could be planning applications, which are publicly available. However, if the extension is within “permitted development”, no application may have been required, so you might be relying on the evidence of neighbours alone.

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

  30. Hello
    I am looking for some general advice please. We bought a house 1 month ago and have quickly noticed a problem with a property on the street. They are smoking drugs and we can smell this in our garden. Speaking to others on the street it seems to be a well known problem and they advised that the previous owners knew. This was never declared on the SPIF. Is there any way to find out of they reported this to the police or council? I have tried to call the local police but they just refer me to the local crime map. Thanks in advance

  31. Hello, I purchased a property in 2017.

    I have been approached by the council for a breach of planning permission during the development of the house.

    Whilst I have been investigating the legitimacy of the council’s argument, it has become apparent that it is highly likely that the seller completed the development of the property not in line with the planning permission granted.

    As my home was new a TA8 was filled out and I have a copy from my solicitor. Within the TA8 the seller has said that there are NO issues about planning permission which is a lie – the TA8 was filled out long after the development had finished and near to the time of exchange/completion.

    Should it be found that the seller never sought planning permission / amended planning permission for the final layout of the land, do I have a case of any sort to hold them responsible and claim damages or any other costs that I may receive?

    Many thanks in advance.

    1. Hi Hannah,

      This is unlikely to be a case of misrepresentation unless the sellers were in dispute with these individuals. Whether or not it is something that would need to be declared on a property information form is highly debatable but on the basis that in one case, an historic murder taking place was not declared and this was held not to amount to a misrepresentation, then we would be hesitant to suggest you have a claim here.

      As for obtaining information from the police or council, unfortunately this is not something that we could advise upon. In the circumstances, it would seem that your best course of action would be to report the matter to the police or council yourself.

    2. This is not as straightforward as might be the case with other misrepresentation claims.

      There is case law to suggest that until a formal notice is received from the council, there is no obligation on a seller to disclose potential planning issues. In this case we refer to, a large development was proposed nearby and the seller had even attended council meetings regarding the matter. However, this was at a time where several sites were being considered by the council and at the time the property was sold, no formal planning notice had been served on the seller to notify them of the nearby development, even though there was a possibility of this occurring. The Court held that failing to mention the prospect of a development nearby did not amount to a misrepresentation, as the seller had not been formally notified of the council’s subsequent decision.

      The position here is not completely analogous to this situation and will turn heavily on what you were told at the time and what the council had in fact said. This would require a little investigation before we would be able to provide you with some more conclusive advice.

      Please do feel free to get in touch. We would be more than happy to have an informal chat with you and explore what scope there is for a claim and the evidence required to pursue it.

  32. I bought a house with a large garden last year. I’m thinking of building a garden room against the rear boundary but realised that my boundary was much further back (circa 6m) than those of the adjoining gardens. I checked the title deeds and it looks like all the gardens should extend the same distance back from the house. The rear part of the garden is fenced, whereas the rest is hedged. I am worried that the ‘extra’ 6m of land does not belong to me but has been sold as part of the property. What should I do?

    1. Thank you for your comment, Marcus. What you can and can’t do generally depends on how long the physical boundary has been there.

      It may be the case that the physical boundary has been there long enough that you have a “claim” for what is called adverse possession. Whilst a simplified explanation of this, it broadly allows someone which has occupied land themselves (or following on from previous owners) and to the exclusion of all others (usually with a physical fence, for example) for long enough to claim that land as their own (normally 10 years). Whilst we cannot give legal advice in this forum, to be successful in such an application would necessary mean not “acknowledging the title” to the land. This means that you should not really be discussing the matter with the actual owner and acknowledging that it does not belong to you. It would be important to find out if your predecessors had done this.

      In terms of misrepresentation, it would be necessary to establish what you paid for the “extra” bit of land in the sale price. It would also be necessary to prove that you were actively led to believe (in writing) that this part of the garden belonged to the property. However, what your loss is will likely depend on your ability to claim adverse possession. If you have an infallible claim to the land, then your loss is likely to be the cost of applying to become the “owner” of it. If you do not have such a claim, then your loss might be the value of that bit of land. We would point out, however, that the inspection of the land is normally the buyer’s responsibility and it would be unusual for a seller to actively “mislead” a buyer into a transaction. This is because Land Registry plans are normally provided during the conveyancing process and the terms of the contract would normally be such that the risk is on the buyer to inspect the property and nothing further is said by the seller on the subject.

      We hope this if of some general assistance. Do feel free to get in touch if you would like to discuss the matter further.

  33. Hi Wondering if you could offer some insight, I recently sold a property and I still keep in touch with my old next door neighbour.
    I’m hearing that from him that the buyer of our previous property is looking into bringing a case against me for misrepresentation on the grounds that I gave inaccurate information regarding boundry agreements.

    Basically, there were no fences separating the properties until 1970 and the owners could effectively access each others gardens. After the fences were erected the properties were bought and sold a number of times and showed the fence lines as the boundary in red on the plan attached the title deeds however, there was no mention of the boundaries either formal or informal on the title deeds and I know believe that the agreement was not ever formalised. I genuinely did not know that agreement was not formal.

    I purchased the property in 2015 and sold 5 years later believing that the boundaries were formal and stated this on the property information form i submitted to the seller. its been 3 months since the sale and i’m worried about what the implications of this ‘honest’ error may be, should I be concerned ? and hypothetically what sort of damages could I be looking at ? I would also add that the house was sold for around £25,000 under the market value and that the fences have been there for the last 50 years

    Many thanks

    1. Thank you for your comment David.

      There are broadly three types of misrepresentation. Fraudulent misrepresentation takes place when a party to a contract makes a false statement that they know is untrue. A reckless or negligent misrepresentation occurs when someone makes a false statement which they do not check is correct or do not care whether or not it is misleading. An innocent misrepresentation occurs when a party to the contract makes a false statement which they believe is true.

      On the face of it, from what you have described, you may have said something which is incorrect but believed it to be true. This could therefore be an innocent misrepresentation but we are unable to say conclusively. Even if there has been a misrepresentation, this is not to say that there would be no defence or basis to mitigate any claim, if a claim is even pursued.

      As we have said in other posts above, we cannot give legal advice in this forum. We are only able to provide general guidance and pointers. This is because the specifics of any case will always differ. In this particular matter what was specifically said and what was understood and relied upon by the buyers will be very important. Non-material representations would carry less weight, particularly if the contractual terms are such that the buyer is deemed to have checked and been satisfied with the extent of the property.

      To provide you with some comfort, unless they have been determined, all Land Registry title plans (the ones with the red lines) show general boundaries. They do not show specifically where the boundary line is. In law, a boundary is a line of “indeterminable width” between to pieces of land. In plain English and put into context, were that red line to be drawn on the physical ground, it would be very wide and would cover a piece of land not owned by anyone. Therefore the lines on the vast majority of Land Registry plans just show the approximate location of the boundary. Perhaps you are being told something second-hand and there is some confusion?

      Historical deeds are often lost to time. They are also of limited value these days for a number of reasons. One exception to this is boundary disputes, where measurements can sometimes be found. A lot of the time, the deeds are silent on the location of the boundary, in which case a surveyor will have to use their best judgment and opinion as to where the boundary line may be. In reality, only a qualified surveyor can tell you where a boundary line is and sometimes, even that is an just an informed opinion.

      Also, the property information form itself is generally aimed in this respect on existing informal arrangements which cannot be discovered by looking at the title deeds by solicitors. For example, if oral permission has been given to a neighbour to walk over the land when they want. There is case law which suggests that the property information form is designed to be answered by lay persons, and therefore the Court will consider whether or not the answer given was a material misrepresentation against this backdrop, to an extent. We cannot imagine that a lay person would be expected to give a detailed legal answer or take the existence of Land Registry lines as anything but formal.

      In terms of damages, the measure of damages would probably be the cost of resolving the matter. If evidence that the fences have been in place for more than 10 years can be provided, then the buyer would potentially be able to “claim” adverse possession. This effectively means that the buyer could apply to the Land Registry to become the owner of any disputed land. This is not usually particularly costly. It might be the case that there is no dispute at all with neighbours about the location of the boundary.

      Whilst we could look into the position for you in more detail, it might be the case that no claim is ever pursued. Whilst we can provide speculative advice, most of the time it is worthwhile waiting for the other side to make contact. They may choose not to pursue a claim at all. If a claim is pursued, a formal letter of claim should be sent first; the Courts expect this step to be taken and for the responding party to be given time to investigate and respond to it.

      We hope this is of some assistance.

  34. Hi, I have purchased a 4 bed detached in March 2020, which was marketed as having allocated parking at the rear, but because of the Covid pandemic,
    the exchange and completion were done simultaneously. The land registry title plan shows that the parking area is within my boundary, however it transpires that the vendor had retained this area of land, and I was then sent an amended title plan. The surveyor who carried out the homebuyers survey
    was also told by the person allowing him access to the property that it came with an allocated parking space. On the property information form, the vendor
    did not answer the question relating to parking but did state that there had been no changes to the boundary in the last 20 years (Clearly a lie if they had retained the parking area for their own use as they also own the property next door.) It is coating me in the region of £10000 to create off-road parking to the property. Do I have a case of property misrepresentation against the vendor?

    1. Thank you for your comment.

      It is probably unlikely that there is a claim for misrepresentation here against the buyer. If they were only intending to retain the parking space, there would have presumably been no changes to the boundary at that point in time. The proposed changes to the boundaries would have been set out in the contract itself. This would likely have been in the form of an offer to sell you just part of the property (i.e. it might not expressly state that the parking space was excluded from the sale). However, there may be some other basis of claim if there was a deliberate attempt to conceal the fact that the parking space was to be retained or lead you to believe that it was part of the sale when it was not. The estate agent’s particulars are unlikely to be overly helpful in this regard. These are more of a marketing tool and the legal detail of what is or is not being sold is contained in the contract.

      If your solicitor has missed or failed to advise you on an obvious point, so far as the retention of the parking space was easy to spot, then there could be scope for a professional negligence claim. It might be the case that the parking space is a separate title (i.e. a piece of land with a different Land Registry number) and sometimes this can lead to confusion. However, it would be unusual for a solicitor not to limit the scope of their retainer, and ask the client to expressly confirm that they understand what it is that they are buying. This is because solicitors are not surveyors and would not undertake a site visit with any plans even if they were qualified to say where boundaries and the like are. They will therefore generally ask the client to check the plans with their surveyor and confirm that this is what they intend to buy.

      As for the surveyor, there may be a negligence case here, but it will again depend on what the surveyor was told, understood and was asked to advise on.

      Whilst we cannot provide legal advice via this website, we also cannot really provide any particularly helpful guidance for you without considering the documentation in detail. From what you have said, there are a lot of potential variables. We would need to see the title documentation (these are the documents that the Land Registry has), the terms of the contract, what you were advised about it and the correspondence between the parties. All of this will be relevant to any potential claim.

      We would be happy to give you a quote for reviewing the matter for you, if you would like to get in touch.

  35. We purchased a house this winter with exchange of contract being late Jan 20 and completion 27th Feb 20.

    I found out this weekend that our next door property had outline planning permission for 5 houses agreed on 21st Feb 20 (application was submitted in March 19) and these house will now replace our countryside views and will directly overlook my property and garden.

    Our sellers marked yes that they were aware of developments but when we sought clarification from them they stated that the planning or developments they were aware of were 3 miles away, i.e not next door. There is also a planning application in for the farm two doors further down which we were not alerted to. I am aware from both parties that the sellers were aware of the plans and I have also obtained the letter they were sent from the planning department informing them of the application and inviting comments.

    Would we have grounds for a claim here? I would not have bought the house if I was aware of the build that will take place and most certainly not from the price we agreed.

    1. Thank you for your comment Sam.

      Nearby planning proposals discovered after completion is always a contentious issue and a disappointment to the buyer. The degree to which a seller needs to disclose such proposals is not “black and white” and every case is different. However, there is a case called Thorp v Abbotts [2015] EWHC 23142 (Ch) which pithily deals with the point to a large extent. In short, if a seller has received actual notice of a planning application, this is generally enough to say that it is something which the seller should disclose. However, if it is merely a possibility that there would be development taking place, this is less likely to trigger that requirement. We can generally find out when notices were sent out from the relevant council, as you appear to have helpfully done.

      If nothing had been said about the position at all, i.e. had no answer on the point been given, then it would be unlikely that there would be a claim for misrepresentation. This is because generally, there has to be an actual statement about some factual circumstances; merely saying nothing is rarely enough and the buyer would be considered to be proceeding at their own risk. Here, it seems that the seller has been selective in the information provided. Even if they had answered honestly, insofar as they were unaware, this might not be overly relevant to any defence of a claim. You are quite right to identify that some development three miles away has been mentioned and that the implication from this is that they have investigated the position and are not aware of any planning next door. This might be considered a “half-truth”, insofar as it might be correct that there are developments proposed some miles away but it is what is left unsaid which is misleading, namely that development next door is also proposed.

      There may very well be grounds for a claim here but we would need to think about when the property information form was completed and when the notice was received. If the notice was received after the property information form was completed, we will also need to consider what duty there would be on the seller to update the information.

      Also, in terms of the value of your claim, this would be something a valuer would need to advise on. This is because the value of your claim, as you allude to, is going to be based on the difference between what you paid and what a reasonable person would have paid for it. An estate agent might be able to give you an indication, but proper valuation evidence is likely to be required. It could be that the development in fact increases the amenity value of your property, but this would normally happen if things such as shops and facilities were proposed nearby, rather than residential housing.

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

      1. Hi Mark

        Thank you for your response.

        The notification of the development next door was sent to the seller on 7th March 2019. The notification of the development three doors down was sent in October 2019. The TA6 and TA10 forms were requested and sent to us in January 2020. The planning information submitted shows the exact positioning of the proposed builds (even the outline planning application had this). This means the seller was aware of the most imposing development 10 months prior to submitting the information to us.

        There are no amenities being added to the development. It is a village location and they are purely taking away from the green land and uninterrupted countryside views rather than adding anything.

        1. Thank you for your further comment.

          This website is not really the forum on which we can provide specific legal advice. Whilst we can provide general advice and guidance based on legal principles, it is not a substitution for proper legal advice, taking into account the nuances of any particular case.

          From what you have said, it may very well be that there is a case here. However, we would need to investigate the matter in a bit more detail before we could provide anything more conclusive. There are other aspects to the matter which also need to be considered, for example, the question of reliance. It is necessary for the aggrieved party to a contract to have relied on the misrepresentation when entering into a contact for a claim to exist. It does not have to be a sole reliance, but it does need to be material. If there is something in the paperwork which suggests or may give rise to a defence that you did not rely on the misrepresentation, this is important to consider.

          There may also be extended searches on the file (but normally, most searches undertaken relate to only the property in question) which might refer to the planning applications in some form. Whilst the ability to discover the truth of the matter is not generally fatal to a claim, the availability of other information might be relevant to any contributory loss.

          In all litigious matters, whether or not a defence to any claim exists is something which needs to be considered from an early stage and throughout as the matter goes on. The strength of any defence is a factor to consider when deciding on the best way to approach the position.

          If you would like to get in touch, we would be happy to discuss the position with you and see if we can assist. Contact details are on our contact page, https://cunningtons.co.uk/contact/

  36. Hi. I have just discovered from my next door neighbour (we live in adjoining semi-detached houses) that my house (purchased in 2016) was subject to extensive underpinning for subsidence in 1994 – a year before the person we bought the house from had purchased tbe property. It is quite clear from what my neighbour (whose house required underpinning in 1996/7 ) has told me that the person we bought the house from was aware of it (and I believe I can get evidence of this), yet this was never disclosed to us prior to us buying the house, despite them presumably being fully aware of the implications, being an architect. Unfortunately the standard pre-purchase questions don’t include “has the house ever been underpinned” and apart from some minor omissions (which however might have led to us discovering this issue) , it appears to have been truthfully completed. Our full structural survey didn’t identify the historic problem. My belief is that the purchase price would have been significantly lower (possibly by 10%+) had a full disclosure about the historic underpinning been made to us and I am wondering whether we may have a viable case against the seller or is it purely caveat emptor? Many thanks.

    1. Thank you for your comment David.

      From what you describe, it does appear that you may be correct in your assumption that “caveat emptor”, or “buyer beware” will apply. Broadly, there must be an actual statement made which is untrue for a claim in misrepresentation to exist. Silence will rarely amount to a misrepresentation.

      You are also correct to identify that underpinning can sometimes have a permanent “blighting” effect on the property, leading to some reduction in value. We would not be able to give you advice as to what this is, as this would fall within the remit of a suitably qualified surveyor, whose advice we would need to take.

      Whilst not all conveyancing firms use the standard Law Society property information form, on the assumption that the standard one was used, there is a section on underpinning guarantees. The answer to this question might be factually incorrect, but it would be necessary to prove this. It could be the case that a copy of the guarantee was supplied to your solicitor, in which case the question arises as to whether or not it was supplied to you or explained sufficiently clearly.

      There is also a section in the standard property information form relating to other things which the seller thinks the buyer should now about. However, we are hesitant to suggest that failing to mention the underpinning in this section would amount to a misrepresentation, in particular, because if the property had been underpinned historically and there had been no problems since, then arguably the seller was correct to assume that it would not be something that a buyer would be overly concerned about even if they did know about it.

      You may want to consider the scope of the instructions in respect of your surveyor that undertook the full structural survey. If it was something that could have been reasonably discovered and something which your surveyor was appointed to consider, then you may have a claim for professional negligence. Your loss in this respect would have been the loss of the opportunity to negotiate the price with the seller.

      We hope that this general guidance is of some assistance.

      1. Hi

        Many thanks.

        Apologies for responding in the wrong place earlier!

        I don’t suppose the fact that the seller lied to their building insurer has any relevance here? Their building insurance renewal documents from a couple of weeks prior to completion (& which we’re given to me) included a home proposal confirmation in which the question “Has the home ever been affected by subsidence or structural movement? “ was answered as “no”.

        1. This is an interesting point. The relevance of what someone says to a third party is likely to be whether or not it was ever intended that the person entering into the contract was going to rely on the response. It could be relevant to whether or not there has been a deliberate concealment of matters, giving rise to a potential claim for fraudulent misrepresentation.

  37. Hello.

    We bought a house in June 2019. We noticed a damp patch on the wall in the dining room. We asked about this several times to the seller. He said it was just the paint drying as he was doing the house. After a month the damp came through on almost all walls. We live on an end terrace. The gable end wall has many random damp patches coming through and the front bedroom was full of mould. I contacted the conveyancer to see why this wasn’t picked up and was told it was a new problem or the seller had hidden it. We now have damp in every room in the house apart from 1 room. We don’t have the funds to fix it but obviously we wouldn’t have paid the price for the house if we knew there were problems. The seller has blocked my number after saying he would come round to “sort it”. What options do I have, if any?

    Kind regards,
    Nathanael.

    1. Thank you for your comment Nathanael.

      In terms of your options, these are either to repair the issue when you can afford it (you may want to contact your buildings insurer on this) or pursue the seller.

      If it can be proved that there was a deliberate concealment of the issue, then there could be scope to claim fraudulent misrepresentation, but this would depend on what other things were said during the transaction. Normally, oral representations (i.e. merely stating that it was the paint drying) would be excluded from being actionable under the terms of the contract. It would also be necessary to consider your surveyor’s report, as this would normally identify the issue of damp.

      From what you have written, it would appear that you would need expert input on when the damp issue started and that anyone living in the house at that time (i.e. the seller) would have been aware of it. The fact that the seller said that they would “fix” the problem, does lend itself to the possibility that the seller was aware of the position.

      Pursuing a seller in this way would incur expenses by way of legal costs. You may want to consider the cost of rectifying the issue before seeking quotes from solicitors to consider the position and potentially pursue the claim. Whilst it is often difficult to explain to clients, if the potential cost of pursuing a claim when balanced against the cost of rectifying the position would potentially leave the client financially worse off, then this is something to consider carefully before embarking on a litigious process.

  38. Hi there. My fiance and I bought a terraced house midway through December, and moved in in February.
    Recently, building work has started across the road from us, and to our surprise we have been informed by a neighbour that they are building houses where a gym was when we first moved in.
    The seller ticked ‘no’ under the relevant section for ‘any upcoming developments to the house or nearby buildings’ in the property information form, and we took them at their word on that- I would feel like their ticking ‘no’ would rid any dangers of ‘buyer beware’.
    The way they seem to be setting up means that the houses won’t overlook our house- as in they wouldn’t easily be able to see into our windows- but we feel like this is something that should be disclosed nonetheless.
    It would not have stopped us from buying the house, but we feel it would have affected the price.
    I know you can’t provide legal advice on here really, but does it sound like we could have a claim of some form?

    1. Thank you for your comment Alex.

      If the seller had received a formal planning application notice, then potentially this is something that the seller should have disclosed and not ticked “no” in the property information form”. It would not be too difficult to find out from the Council if and when the seller was served with such a notice. If this is the case, then there may be a case for misrepresentation.

      You will need to consider the value of your claim, and this is something that a solicitor can only advise on with expect input from a suitably qualified surveyor/valuer. Before embarking on any litigious process, it is important to consider the value of the claim and balance this against the cost of pursuing it. In this matter, it would be necessary to consider the difference between what you paid for the property and what a reasonable person, knowing about the proposed building, would have paid.

      Do feel free to get in touch if you would like to explore the position further.

  39. Hello.
    I’m in process of buying a new build flat and I noticed that approved drawings or room measurements do not correspond to the actual. Each room is 5-13cm shorter and the total deviation is around 1 sqm. Is the seller legally responsible to correct the drawings? Thanks.

    1. Thank you for your comment Tijana.

      If you have not yet exchanged contracts, this is something you should ask your solicitor to raise with the seller before doing so.

      If you have exchanged contracts but not yet completed, then you will need to consider what the contractual terms say about deviations from the proposed design. Again, this is something to discuss with your solicitor who will be able to advise you. It would not be unusual for developers to allow for minor variations to the contract, provided this does not have a material impact on the value of the property.

  40. I purchased a house a few months ago. When interior redecorating, I’ve noticed the presence of damp seal paint on areas of the plaster on the front wall. This appears to be an attempt to cover up damp patches.
    If the damp seal paint was, in fact, applied to cover over damp patches – do I have grounds for a claim against the seller?
    I note there were no questions about damp on the Property Information Form.

    1. Thank you for your comment.

      It is unlikely that there is any sort of claim here because of the principle of “buyer beware” or “caveat emptor”.

      Failing to volunteer information is not the same as providing misleading information. It is when someone has been actively mislead and this has induced them to enter into a contract that a potential claim for misrepresentation can arise. If you were led to believe that there had never been any issues with damp in the property, the presence of damp seal paint might indicate otherwise. However, without that representation being made, it is unlikely you would have a claim.

      We cannot give anything more than general guidance on this website, as every case is different and always requires a closer examination of the relevant facts. If you are minded to investigate the matter further, please do feel free to get in touch, however from what you have written, we would be hesitant to suggest that there is a case here.

  41. Dear Cunningtons

    I just wanted to say thank you for this very informative ‘blog’ of some very sad events that occur when sellers don’t complete the TA6 honestly.

    Whilst I am not in the market for buying or selling my house at the moment, your website ‘briefs’ any prospective buyer or seller for what to watch out for. And of course how important it is to understand caveat emptor.

    Being aware of all the ‘tricks’ that may be pulled ensures being forewarned to be forearmed!

    So all good wishes for your amazingly interesting log – it is compelling reading! Whilst it is clear you do generate business from it – it is still generous of you to illustrate so professionally what victims could do to resolve – or not – their issues.

    I have put you on my ‘first-port-of-call’ list if ever I need such professional help (heaven forfend!) in the future.

    Thanks again.

    Charlie H

    1. Thank you for your comment.

      Whilst we can’t provide specific advice, as every case is different, we are happy to share general points and information. What we have set out shouldn’t be considered an alternative to obtaining legal advice, but for existing and prospective clients alike, it may provide a helpful base from which they can undertake their own research.

      We undertake a large number of property transactions for clients and do our best to set ourselves apart as a firm by providing helpful, informative advice and supporting clients with all of their requirements and queries throughout. As a result of the number of transactions we undertake, invariably the occasional disputes arises and we draw on our experience in property work to resolve them.

      For existing clients in particular, we are a very approachable firm and are normally able to have a quick chat by telephone to see if we can assist. This is not restricted to property disputes alone.

      If for any reason you do require any assistance, please do feel free to get in touch.

  42. With the property I recently purchased, the seller had declared (in the flooding section on the property information form) that a drain had once been overwhelmed during a very heavy rain. He said, the incident took place while he was away and there was no damage. His neighbour had noticed the build up of water and cleared debris from the drain to help the water flow down.
    After speaking to the neighbour he said that before he cleared the drain, the water had built up high enough for water to enter the subfloor vents and enter into the subfloor.
    I am concerned that this could have damaged the subfloor structure.
    Has the seller committed misrepresentation by saying there was no damage when water got into the subfloor?

    1. Thank you for your comment Matthew.

      Solicitors should always advise their clients to consider the potential cost and risk of pursuing a course of action against the potential benefit of doing so. It would be remiss of any solicitor to advise that a claim exists and should be pursued when the overall benefit to the client is not worth the cost and risk. This is an ongoing process, as often at the outset of a matter, it is not completely clear what the prospects of success are or the likely recoverable damages. Sometimes the best a solicitor can do at the outset of a matter is explain that there is a possible claim but investigation into the evidence and likely loss needs to be considered further.

      With all types of litigation, the colloquialism “it’s about proof, not truth” often rings true. It may very well be the case that no damage was ever caused and without evidence to suggest the contrary, it would be unlikely that any sort of claim would be successful.

      Even if damage had been caused historically, a careful consideration of the loss that this has caused to you would need to be taken into account. A one-off flood, which does happen, might not necessarily have any impact on the value of the property, whereas a systemic and repeated flooding problem likely would.

  43. Advice please. We purchased a residential bungalow dwelling completing on 19/02/20 having sold our former property. We’ve spent £30k to renovate and make good as the dwelling hadn’t been touched since it was built circa 1988. Soon after we exchanged the bungalow next door was put under construction, still is, every day from 8am – 9pm (it’s a one man build). I’ve looked back through the property form and disclosure. The vendor did not reside here as the bungalow was formerly his mother’s home and she had passed away January 2019. The dwelling on the other side of the one under construction was also unoccupied an the occupant was also deceased June 2019. In August 2019 the house in the middle (problem house) of the 2 deceased’s had interest from a purchaser. The plans for developing this 3 bed. 1 story bungalow in a bungalow residential area were submitted to the local authority. There were no objections as the letters were sent to 2 deceased persons re: objections. 16/10/19 the local authority resolved to support the reconstruction application as no parties had offered any objection (how could they, they were deceased). This was the primary factor for the purchaser of the bungalow under construction. When the vendor, the son of the deceased, was asked on the property information form of there were any plans for building in the locality, he stated ‘extension proposed for neighbouring property’. He then failed to complete the supporting information required. This form signed by the vendor of our property was signed on 06/12/19, almost 4 months after he was aware of the proposed huge extension next door. Dishonest. We were made aware very late in the proceedings, about 3 weeks before our exchange date. We were already committed to the move as we had parties purchasing our house . We viewed the plans online however they stated ‘dormer upstairs and extension to the rear. This build is absolutely hideous and huge! It is most definitely NOT in keeping with the surrounding dwellings , I am flabbergasted this build was ever approved but with no one to object, no problem for the purchaser. The owner of the house we purchased WAS aware as when asked by the owner / builder of the next door property, he said he didn’t care about it as he was selling his deceased mother’s house anyway. Our hearts are broken, the noise is causing stress and anxiety, the deceit is hard to take and we are at our wits end. The building is so intrusive, it looks directly into every aspect of our 60 foot garden, even the patio area outside our rear bedrooms. We have zero privacy. Any advice will be appreciated. Thank you.

    1. Thank you for your comment Sharon.

      Just by way of clarification, we can only provide general guidance here and not specific advice. The general guidance should not be relied upon as a substitute for obtaining specific legal advice.

      Obviously it is disappointing and frustrating when a neighbour undertakes construction work. Planning regulations exist to balance the interests of a property owner to build on their own land against the rights of neighbours. It sounds to us that you might want to consider raising your objections with the Council as soon as possible.

      In some cases, a “half-truth” can amount to a misrepresentation. If certain facts were disclosed by a seller but others not, so as to give an false impression, then this can form the basis of a claim. However, from what you have written, whilst supporting information was not provided (although we are unclear what this might be – unless a non-standard property information form was used, there is not a specific question about the details), the fact that a proposed extension was identified by the seller and before exchange of contracts is likely to mean that you do not have a claim for misrepresentation.

      For a claim for misrepresentation to exist, there must be a false statement of fact. Unless you were told the specifics about the proposed extension and relied on this when entering into the contract, only to later discover that this was untrue, then there might be some scope. However, this does not appear to be the case here and it sounds as though the case may be risky primarily because the prospect of the extension was specifically brought to your attention.

  44. My daughter put a deposit on a new build flat in a building previously being used as offices. When we saw the show apartment, the windows in the flat were from floor to ceiling. Nobody mentioned that the flat we placed a deposit on would not have the windows from floor to ceiling and neither on the 2 or 3 times we returned to see the apartment did anyone mention it! On one of the occasions I was even taken to the location where my flat would be before the work started and saw the windows as per the show apartment. Further communication with the developer followed where they advised the windows hadn’t been changed! The developer advised that some flats were planned to not have these windows but it was these that were the wow factor. The contract does not state anything that the apartment we put a deposit on would not have the floor to ceiling windows. We asked for compensation in price reduction as believe the value has fallen from changing the windows but have been refused.

    Of course with the Covid-19 pandemic, the developer has now advised that cannot guarantee meeting contractual dates so it is possible the apartment may not be ready by the agreed completion date although tbh we have been given earlier dates previously only to be let down.

    I would like to rescind the contract and wondering if we have a strong case to do that based on the windows and/or should they complete after the agreed contracted date?

    Appreciate your advice on this.

    Thanks

    1. Thank you for your comment.

      Purchasing off-plan property can represent a risk, and often in the contract there will be a clause which allows a developer to change specifications provided it does not materially affect the value of the property.

      Whether or not it is possible to rescind the contract will largely depend on the terms of the contract and whether or not the representations made in relation to the windows were relied upon. There might be some scope here for a claim based on conduct, namely that the developer showed you what your property would look like once finished, however, we would envisage some difficulties here.

      Unfortunately without a better review of the contractual documents, it is difficult to say whether or not there is a claim here.

  45. Mark
    We bought a property a few months ago and the seller said there had been one flood many years ago in the basement. In fact the basement floods almost continuously (though was dry when we viewed). The neighbours have told me independently that the previously owner had had ongoing flooding for 20 years and gave considerably detail (though not in writing). Do you think there is a case here?

    1. Thank you for your comment Clare.

      What you have described, assuming that there is a systemic flooding problem with the property, is potentially a “half-truth”. This is a representation which on the face of it is true, and therefore is not actionable. However, by virtue of what goes unsaid, it gives a false impression of the facts of the matter. To suggest that there was a flood many years ago may in fact be true. However, if there was also a flood more recently, then of course what has been said to you might be considered inaccurate.

      Most residential property sales incorporate the standard conditions of sale. These have the effect of excluding oral representations. Therefore what is said about the position in writing during the transaction is important and the starting point is the TA6 or property information form.

      It might also be necessary to obtain expert opinion on the cause of the flood and whether or not this had occurred more than once. Assuming the correct surveyor or engineer is instructed, the dual purpose of such a report would be to consider the cost of rectifying the position, which would be important to factor into the cost/benefit analysis to pursue the matter against the seller. In short, if the cost of rectifying the position is likely to be nominal and the cost of pursuing a claim high, then thought would need to be given as to whether it was cost effective to do so.

      The evidence from the neighbour will also be important. However, from what you describe, the evidence that the neighbour could give is likely to be “hearsay” evidence. This is evidence which is “second hand” and is given less weight by a Court. Put more succinctly, unless the neighbour has viewed or otherwise seen the extent of the flooding issue, then all the neighbour could provide in terms of evidence is confirmation that the seller had explained to the neighbour that there had been historical flooding issues.

      If you would like to explore the matter further, please feel free to get in touch.

  46. We bought a house recently. The property information form stated that the central heating system was in good working condition. As the boiler had not been serviced for a considerable time, we asked if the vendor would get it serviced before exchange and they agreed. No issues were identified on the service schedule. Upon collection of the keys, we had no hot water. An emergency plumber came out and found a rag wrapped around the pipework inside the boiler stopping numerous leaks. They also found a number of others issues with the boiler which they advised should of been picked up on the service the month before as they were historic issues such as limescale build up. We subsequently spoke to the plumber who serviced it for the vendors who advised that he was not permitted entry to the house and as such was only able to service the parts on the outside. The vendor has denied this is the case and insists he had a full service. However, the vendor has now admitted that he had issues with hot water pressure in summer 2019 and had called out the same engineer as he did for the service, who recommended that he have a new heat exchanger. He also admits that the did not have this fixed, deciding to live with the issue he was experiencing.This I the first time he has disclosed this to us. To me, if he knew that he had a part which needed changing in the boiler and was suffering with a hot water problem in Summer 2019, he should have declared this on his property information form or at some point during the conveyancing process, particularly as he did not get it resolved. In addition, had he had the full service he claims to have had, this would have been noted at that point also particularly a he used the same engineer who was already aware of the issue. Do we have a claim for misrepresentation?

    1. Thank you for your comment.

      Failing to disclose something in the property information form is not the same as stating something expressly. In some circumstances, a “half-truth” can give rise to a misrepresentation, if what is left unsaid makes the statement inaccurate. For example, stating that the boiler was in good working order and had recently been serviced would suggest that there was nothing wrong with it. It would probably not lead a person to understand that it was only working because of homemade repairs.

      Likewise, depending on what was asked of the seller and what they agreed to do in respect of the service, this might also be relevant. You clearly relied on the promise that a full service would take place of the heating system. If this did not occur as requested this might also give rise to a claim.

      Please do feel free to get in touch with us if you would like to explore matters further.

  47. Dear Mark,

    thank you for the thorough article it made for some interesting reading.
    My wife & I bought a new build property in 2016, a 4 bedroom townhouse. One of the bedrooms, a basement room, did not have a window, at the time that was not an issue to us, however now as we’re trying to sell the property we have been advised that this bedroom is not able to be sold as a bedroom.
    On the floorplans we have from when we purchased the property it has that room detailed with no window, however we have obtained the original plans from the council and these plans show the room has a skylight to provide natural light.
    We’re trying to get this skylight installed but now are running into issues as its a leasehold property!

    We feel we’ve been misled when purchasing the property, and now are stuck with the nightmare to deal with it and most likely lose out on what we can sell the property for.

    1. Thank you for your comment and we are pleased that this general guidance has been of some assistance.

      We are sorry to say that from what you have described, it is unlikely that there is any sort of claim here against the developer. Firstly, it does appear that you were aware that the room had no window at the time of purchase. The original plans sent to the Council were not made known to you, so you would not have been able to rely on these as a representation. A claimant must rely on the representation when entering into the contract for a claim for misrepresentation to exist.

      Even if those plans had been available, the case law on whether or not you would have been entitled to rely on them anyway would likely mean that a Court would determine no. Whether or not a document prepared for someone other than the claimant can be relied upon to form the basis of a misrepresentation claim will depend on the nature of the document and its intended reader. Here, these documents were presumably prepared for the purposes of the application for planning permission. We feel that it is unlikely that they were intended for potential purchasers to consider, particularly as a new plan was provided with the sales pack.

      As for obtaining permission from your landlord for the installation of the skylight, whether or not this will be possible will depend on the terms of the lease. It would not be unusual for a landlord to retain the exterior parts of the property and they may be within their rights to refuse to allow cutting for the purposes of an aperture to be installed. This may be something that we can assist with and advise upon if you would like to get in touch.

  48. A house I purchased has problems with the shower. It was poorly installed and has multiple leaks, I am facing expensive repairs. The property info form said the bathroom had undergone a like for like refit a few years ago. It turns out it looks like the shower and toilet were swapped around as part of the refit – can that be deemed like for like? Also, there is no building control approval for the changes (they wouldn’t be needed for like for like changes).

    Do I have the basis for a claim here?

    1. Thank you for your comment but we are hesitant to suggest that there is a potential claim for misrepresentation here.

      If the truth about the shower was made known, namely that there was a refit several years prior to your purchase, this would probably indicate that some degree of maintenance might be required in the future. This is not the same, for example, as saying that a brand new bathroom was fitted and it is in good working order, which would suggest that maintenance in the immediate future might not be required.

      As for the building control approval, whether or not there was a claim here depends on what was said about the availability of a certificate.

      We are sorry to say that it is unlikely that there is a claim here but we can explore the position with you in more detail if you wish, as we cannot conclusively say this without some further investigation.

  49. Hi Mark,
    I bought my house from the builder (who resided there for 10 years) 4 years ago & was told on the property information form that the house had never suffered flooding which is false (evidence from neighbours & subsequent discovery of re-tanking of basement which indicated the original tanking had failed). I would probably not have purchased the property if I had known the truth or at least not at the asking price. Do I have a claim for (i) misrepresentation and (ii) the cost of re-tanking of basement?
    many thanks

    1. Thank you for your comment Tim.

      You may have a claim for misrepresentation if evidence exists that there was historical flooding at the property.

      Your neighbour’s evidence will be important. The tanking of the basement does not necessarily mean that flooding occurred, but obviously this would suggest that there was some water ingress.

      In terms of any damages, this is normally based on “diminution in value”. This is the difference between what you paid for the property and what the property was worth with the defect. This might not reflect the cost of any rectification works. For example, a property in a highly desirable area might suffer less diminution in value, because there would be more potential buyers willing to put up with the defect or undertake the work at something of a loss because the property represented a good investment. This is why proper valuation evidence on the value of a particular claim is worthwhile.

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

  50. Hi Mark

    My Wife and I purchased a home last September.
    We discovered a leak after 2 – 3 weeks of moving in to the house where water was entering into the ‘Hobby Room/Office’, (as marketed by estate agents, which is an area at the back of the garage divided by a stud wall), and instructed work to be carried out to replace the existing felt roof. Whilst carrying out the work on the roof last week, the contractors have found that the problem is being caused due to the way the ”Conservatory”, (or, Family Room and Play Room as marketed by estate agents) roof has been installed.

    Upon further investigation we have come across more and more problems of concern with the “conservatory” and after consulting further opinion and expertise from an experienced builder and a surveyor, we have been advised that the structure is potentially unsafe and not fit for purpose.

    We are waiting for the full report from the surveyor, which should be with us very shortly. However, some initial findings are that the “conservatory” has been built on insufficient footings and the windows at the side of the “conservatory” are being ‘pushed’ out on a tilt by the apex roof. The same roof which has also caused damage to the existing garage roof. The surveyor has concerns that the “conservatory” is not in fact a conservatory at all and points to a lack of building regulations that the previous owners did not seek at any point during the build.

    Our Solicitor queried building regulations during the conveyancing process (due to a lack of transparent/ translucent roof) and advised us to take out an indemnity policy regarding planning permission, which we did. This was because the previous owners were adamant that the extension was built under permitted development as a “conservatory”. At this point I can draw your attention to aspects of the ‘property information form’ which the vendors filled out which stated:

    4.1 Have any of the following changes been made to the whole or any part of the property (including the garden)?
    (a) Building works. They answered ‘no’
    (d) Addition of conservatory. They answered ‘yes, 2019’

    4.2 they stated on (b) “conservatory built under permitted development rights”.

    However, we have gone back to the ‘conservatory enquiries form’ , that was signed by the previous owners and have concerns that the information given in the form is untrue and the build in fact does not constitute as a conservatory and building regulations should have been sought. This has been further validated by the surveyor and builders who have now seen the property and have advised us that the build does not constitute as a conservatory.

    On the conservatory enquiry form it states:

    (b) The roof is completely transparent, the previous owners ticked yes, for true.
    (g) Any heating provided is independently controlled, the previous owners ticked yes, for true.
    (k) The conservatory is not built over any sewer, the previous owners ticked yes, for true.

    We believe that all of the above parts of the statements are in fact, untrue.
    The roof is not at all transparent or translucent, it has a ceiling with LED spotlights in.
    We have discovered that the “conservatory” is in fact built over a public sewer.
    Also the heating for the “conservatory” has no separate controls, it is supplied by a single radiator that is plumbed onto the back of another radiator situated in the lounge.

    Furthermore the “conservatory” was never referred to as a conservatory in the information provided by the Estate Agents marketing pack, it was portrayed as a ‘family room and a play room’ which we feel misrepresents the sale and adds to the confusion of what the building actually comes under.

    We are being advised to demolish the existing structure as it is not fit for purpose, this is not what we envisioned when buying the property! This has huge financial and stressful implications for us going forward, which has all come to light over the last week, off the back of replacing a leaking roof to the ‘Hobby Room’, which is essentially the back of the garage.

    Your thoughts and comments would be most welcome…

    1. Thank you for your comment.

      First and foremost, it sounds as though your conveyancing solicitor was eminently sensible to advise you to obtain an indemnity policy. We would certainly recommend exploring this and any buildings insurance cover you have before incurring any legal costs to see if you are covered for the current circumstances.

      It is clearly very frustrating and stressful to discover that building work is required on a property after purchasing it, particularly work which is as extensive as you describe. It is easy to overlook a fundamental aspect of any litigious matter. This is the financial aspect of the potential claim. Whilst obvious annoyance can arise when someone is dishonest or mistaken, it is recognised in law that the consequence of that dishonesty or error is important to consider. For example, the fact that there is a sewer running under the conservatory does not necessarily strike us as something which is of any real significance. We may of course be wrong, as we are not surveyors or qualified to say what impact this would have on the value of the property, which is the normal measure for calculating damages; solicitors would generally need some expert input in this regard. However, causation is a key element to every claim and unless, for example, the sewer is in some way to blame for the requirement to demolish and rebuild, it may not be something which is overly relevant.

      From what you have written, this particular point seems to be ancillary to the main issue. It appears that the issue is that the construction of the room/conservatory took place prior to your vender’s period of ownership and the historical property information form seems to give an idea of its state of construction at that time. However, as it differs to the current state of construction, it appears to follow that the vendors have made alterations to it which are of a poor construction and have damaged the garage flat roof. If this is the case, and building/conversion work was undertaken but it was expressly said during the transaction that this was not the case, then there may be a claim for misrepresentation.

      If you instructed a surveyor to undertake a full structural survey of the property, then there may also be a question here as to whether or not your surveyor undertook their instructions with reasonable skill and care. If not, a concurrent claim for professional negligence may exist against your surveyor.

      If you would like to explore the issue in more detail, please feel free to get in touch.

  51. Hi I recently purchased a property on a retirement complex and the seller ticked that there had been no complaints or disputes at the property since moving in I have found out that the owner put in complaints to the management company about health and safety issues on the site during Covid 19.

    Can I claim damages.

    Jo

    1. Thank you for your comment Jo.

      Whilst this may amount to a misrepresentation, insofar as something was said which appears factually untrue, an important question to consider is what your loss is. If you have not suffered a financial loss then pursuing a claim is unlikely to be possible. As proving the damage caused is a constituent part of any claim, be that a claim for misrepresentation, professional negligence, breach of contract or otherwise, without any damage having occurred, then it is unlikely that a claim exists.

      In misrepresentation cases involving property, normally the measure of damages is the difference in value of what was paid for a property and what it was worth, had the true facts been known. This is called diminution in value. Whilst we are not qualified to advise on what that figure is, only a surveyor or perhaps estate agent would be able to do this, we are hesitant to suggest that what you describe would have a material impact on the value of the property. However, we may of course be incorrect but would require input from an expert on this point.

  52. My recently purchased property has a leak somewhere in the central heating system causing a gradual loss of pressure. The leak could be in the boiler or it could be in the radiator pipework.
    On the property information form, the seller ticked ‘yes’ to the question ‘is the heating system in good working order?’
    Do I have the basis for a claim for misrepresentation due to the heating system having a leak?

    1. Thank you for your comment, Steve.

      There may be a claim here but without considering the situation in more detail, it is difficult to say. The system may genuinely have been in good working order but developed a fault after completion.

      If the standard Law Society Property Information Form was used, the section in relation to the central heating system is more extensive than just the question of whether or not the system is in good working order or not. There are parts relating to the age and maintenance of the system. For example, if it was explained that a brand new, recently serviced system was in good working order, then a leak would not be expected. If on the other hand the system is antiquated and has not been serviced for some time, then a leak following completion would not necessarily come as a surprise. What is answered here may very well be relevant to the situation.

      A leak and loss of pressure of course is extremely annoying, particularly if you were led to believe that the heating system was in good working order. You have not explained the extent of the leak or whether or not this has caused any damage. No solicitor should advise a client to embark on a course of action without considering whether or not it is financially worthwhile for the client. If this is a minor issue which is capable of being fixed at a low cost, then it is always sensible to consider whether the financial and emotional cost of a claim is worthwhile. If on the other hand this leak has caused substantial damage and inconvenience, then committing to a claim may be more worthwhile.

      If there has been some damage, we would certainly recommend discussing this with your buildings insurer.

  53. Hello I am hoping you might be able to provide some advice. We purchased our first house a year ago & began renovating the garden. We quickly realised that there was a considerable amount of water rising up from the corner of a patio & flooding around a ⅓ of the garden. This flooding is frequent during the summer months & constant for the rest of the year. Fortunately the house is on a raised platform & the water flows away from the house.
    I have had this investigated by the local water company who have advised that the rising water is natural ground water. When asking if this has been historically investigated I was advised that no previous owners of my house has ever had investigations. However they were able to confirm that neighbours had had investigations with the water company concluding that ground water was running down the hill from higher level gardens (my garden).
    On the TA6 the sellers ticked no for Q7.1 that no part of the property had flooded but added a caveat that “there has not been any flooding but occasional water retention on surface of lower rear garden – verified by [water company] as being rain water”. They went on to tick “no” to all points on Q7.2 what types of flooding occured adding occasional in brackets next to surface water.
    Do you believe there are grounds for misrepresentation here as we feel the sellers have failed to disclose the extent of the water problem (and certainly played it down considerably), have falsely claimed that the local water company investigated the problem & claimed the water to be surface rainwater rather than groundwater. Any advice would be hugely appreciated

    1. Thank you for your comment and we are sorry to hear of the difficulty you are having.

      We do need to point out that we can only set out general guidance, ideas and basic principles. This should not be relied upon as an alternative to obtaining bespoke legal advice after the matter has been considered in detail.

      Case law broadly sets out that the Property Information Form (TA6) is designed for laypeople to answer and understand. With this in mind, the question of whether or not “water retention” amounts to “flooding”, to the extent that it can be considered a “half-truth” capable of forming a claim for misrepresentation, is open to debate. We are not aware of a specific case which assists in this interpretation.

      We are hesitant to suggest that there is definitely a claim here, as the issue was brought to your attention. However, if the extent of the problem is that there is permanent surface water when the answer given to you was that this was “occasional”, then this might form the basis of a claim.

      Please do feel free to get in touch if you would like to explore the issue in more detail.

    2. Hi I have exchanged contracts on a new build house. I received actual measurements from the sales office for the front garden and rear garden. Because if COVID-19 it’s been so difficult to have access. So I turned up at the site/house to my horror my front garden is half the size of the measurements provided. I called sales director immediately and expressed my shock. He called me back and said the rear garden measurements are correct as per my email. I’m not that clued up on these thing so I gone back to original solicitors drawings 1:5000 scales and have now calculated the back garden is also about 6ft shorter! What can I do? I have it in writing from them the measurements

      1. Thank you for your comment.

        Your solicitors should advise you on your position.

        In short, it will be necessary to consider the contract. If you have exchanged, you are bound to complete the transaction. However, if the contract does not represent that which you intended to purchase, then you may have grounds to rescind the contract and recover your deposit. You might find that it is possible to renegotiate the purchase price.

        Most developers will include a contractual term allowing minor variations to the property, provided that they do not have a material impact on the value of the property. For example, if the garden is already large, then the loss of 6ft might not have any material impact on its value. If the garden is already small, then clearly this loss is likely to have a greater impact on the value.

        A review of the contractual terms is the starting point and your solicitor should advise you on these terms.

  54. Hi
    We purchased a home that was advertised as a new build in 2016. We recently accepted an offer to sell and we found out that the house had some original elements and the tax and county records have it listed as a 1967 build. The potential buyers are now not sure if they want to buy even though the house is impeccable and looks like a brand new home. What legal actions do I have with the sellers agent as they listed it as a 2016 build and obviously misrepresented the property. Feel like we were dooped and I am curious what actions legally as well as financially do we have. Also if the buyers still want to purchase the home what should we have in the purchase agreement so this does not come back to bite us in the future. Thank you.

    1. Thank you for your comment. This is an unusual situation and not one which we have come across before.

      We are not certain that you would have recourse to the seller’s agent. There was no direct contract with the agent. Also, normally it is the principal that is liable for the agent’s actions. Normally, a client is better advised to pursue a contractual claim against the principal and allow the principal to pursue a contractual claim against the agent in turn. It is therefore more likely that your claim lies against the seller, who can then join the agent to the claim for an indemnity if the agent has caused the seller a loss.

      We are not aware of a statutory definition of a “new build” and whether or not retaining some original features and stating that the property was “built” in 2016 would amount to a misrepresentation. It probably depends on the extent to which the property was rebuilt and how many of the original features were retained as to whether or not the property in its current form could be considered “built” in 2016.

      If the standard conditions of sale were used, then it is unlikely that there would be a claim for misrepresentation. Firstly, these seek to exclude anything said about the property apart from written communications between the parties, which normally has the effect of excluding agent’s particulars. Secondly, there is a standard condition of sale which normally has the effect of obliging the buyer to accept the property in the physical state that it is in which is in, which presumably would include its age.

      There is also normally a contractual clause which states that if something affecting the property is discoverable on inspection, then the property is sold subject to this. Normally if a survey is undertaken of the property, it will give an approximate age of the property, based on its location and method of construction. However, this clause is normally relevant to things such as rights of way or other rights, rather than the age of the property.

      We are also unsure of what your loss would be. In short, the normal basis of calculating loss is based on diminution in value. This is what was paid for the property and what the property was worth, knowing that it was built in 1967 and not 2016. There may be no material difference here, particularly if the house is in impeccable condition.

      In terms of avoiding liability yourself, a contractual clause can be incorporated into the contract of sale which has the effect of preventing a future claim. However, there is no general obligation on a seller to volunteer information about a property. Obviously if a seller chooses not to answer a prospective buyer’s question, this might lead to the buyer deciding not to proceed, however, for a misrepresentation to arise, it is normally the case that something which is factually incorrect has to actually be said. If nothing is mentioned, then the buyer cannot be said to have relied on the statement and reliance is a necessary part of the claim. There are some instances where silence can amount to a misrepresentation, particularly if the silent party knows and allows the other party to proceed under an obvious false impression or there are other things said or done which lend to a situation where a reasonable assumption and reliance by the other party can occur, but it is not often that this occurs.

      Every case is different, which is why we are only able to respond in general terms. We hope this is of some use, even though it is not a situation we have specifically come across before, but if you would like to explore the matter further, please feel free to get in touch.

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