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 transactions are completed, that is the end of the matter.
The Seller’s Property Information Form
During the conveyancing process, the buyer will ask the seller questions about their property. These are called pre-contract enquiries and requisitions on title. As part of the process of selling a property, the seller will normally complete a Property Information Form. Much of the time, the form used is the Law Society’s Property Information Form, sometimes referred to as the Seller’s Property Information Form.
The idea behind this process is that the buyer satisfies themselves by asking the seller relevant questions and the seller answers them. If a seller answers an enquiry inaccurately or incorrectly, it can lead to significant legal implications for both parties. If the seller has been as upfront as possible in response to those questions, the seller cannot normally be held liable for anything else they say.
What happens if the seller’s information is not accurate?
We see a lot of cases where a seller, sometimes unintentionally but sometimes deliberately, misleads a buyer by answering a question on the Seller’s Property Information Form or during negotiations incorrectly – or partly incorrectly – so as to create a misleading impression. Property misrepresentation occurs when sellers provide false or misleading information about their property during a sale. The buyer then purchases the property and moves in, only to discover that the information provided by the seller was inaccurate.
We have dealt with cases where a seller has:
- failed to disclose existing disputes with neighbours;
- suggested that a property does not suffer from a flooding issue when it does;
- inaccurately maintained that the property does not suffer from Japanese knotweed when it does;
- stated that the boundaries are in one place or have not moved when in fact they are not or have been changed;
- suggested that the property does not suffer from damp, when it does;
- explained something in relation to an existing tenant which is incorrect;
- declared that no restrictive covenants apply to a property when they do; and
- stated that there are no planning or other proposals nearby which could have an effect on the property.
… the list goes on.
In all of these cases, the buyer may very well have a claim for misrepresentation, depending on what the seller said about the position.
If you are interested to read about real cases which have been decided by the Courts, examples can be found in our article Property Misrepresentation in Practice.
The importance of reliance
Misrepresentation is a false statement of fact that a party relies on when entering into a contract causing a financial loss. Innocent misrepresentation occurs when a seller provides incorrect information without any intention to deceive, which can still cause issues for the buyer. It does not have to be the sole inducement, but the buyer would have to have relied upon the statement to bring a claim. Read more about reliance in misrepresentation claims here.
Depending on whether or not the seller innocently, negligently or fraudulently answered the questions inaccurately in the Property Information Form, the buyer may be entitled to claim damages from the seller if they relied on the information when going ahead with their purchase.
In some cases, the buyer will be entitled to ‘rescind’ the contract. This means that the buyer is entitled to their money back and to return the property to the seller. This does not happen very often and a Court will normally award only damages.
Normally the measure of damages awarded to a buyer is based on ‘diminution in value‘, or the difference between what a buyer would have paid for the property knowing about the issue, and what they actually did pay for it. This may not necessarily reflect the actual cost to the buyer in rectifying the issue. However, in some cases, additional damages can be awarded to cover other expenses incurred.
Diminution in value
To give an example of how diminution in value is calculated, we have acted for insurers in professional negligence claims against surveyors, who have failed to identify that a property suffered from subsidence. The measure of damages was based on diminution in value. The cost to the buyer in underpinning the property to stop the subsidence was greater than the actual loss suffered. This is because the property was situated in a highly sought-after location with a large rental market, meaning that the impact on the value of the property was less.
Based on the fact that a hypothetical purchaser would have seen the property as an investment opportunity that could provide a return by renting it to tenants, rather than considering it a family home for life, the expert’s opinion was that a hypothetical purchaser would have been more likely to negotiate a smaller reduction in the purchase price than the full cost of the repairs. This would ensure that the seller accepted their offer, and even with the defect, the property represented a good investment.
How can a seller ensure that their buyer will not bring a claim for misrepresentation against them?
Sadly there is no way to be 100% certain that a buyer may not make a claim after a sale. Negligent misrepresentation occurs when a seller or their agent carelessly provides false information about a property, leading to potential legal claims. All a seller can do is minimise the risk as much as possible.
Although completing the Seller’s Property Information Form is not mandatory, it is unlikely that a buyer will proceed with the purchase if their questions are not answered.
Therefore when completing the Seller’s Property Information Form, the seller should answer questions as fully and honestly as possible. We often advise clients to think about what they would want to know about the property if they were buying it, and how they would react if they bought a house with problems that were not disclosed.
If a seller is not certain about an answer to a question in the Seller’s Property Information Form, they should think carefully about whether they want to answer it.
What happens if the seller’s replies were accurate at the time they were given to the buyer, but by the time of exchange the information has changed?
In some circumstances, a seller is under a continuing obligation to ensure that their replies to enquiries are accurate up to the date of exchange of contracts. Therefore if there is a change of circumstances meaning that the original statement is no longer accurate, there is every chance the seller would be obliged to update the buyer.
The Seller’s Property Information Form also specifically tells the seller that if something happens which would mean that their replies are no longer accurate, they should notify their solicitor of this, who should in turn notify the buyer’s solicitor.
If they don’t do this, the seller risks a potential claim against them for misrepresentation.
What if a seller knows something which is not specifically asked about by the buyer?
Have you bought a house with problems which were not disclosed? Unfortunately, this is unlikely to give rise to a claim for misrepresentation.
The basic position here is ‘caveat emptor’, or ‘buyer beware’. If a buyer does not ask the seller a question, they cannot then look to the seller for compensation if they discover something that they do not like about the property. It is up to the buyer to satisfy themselves that they want to purchase the property and ask questions about it which are important to them.
As the basic position in a property transaction is buyer beware, it follows that if no statement or answer is given by the seller, the buyer cannot be said to have relied on it to enter into the transaction.
Having said this, sometimes (but this is unlikely unless a special or fiduciary relationship exists) a misrepresentation can take place by a failure to mention something material to the transaction.
In some cases, a “half-truth” or explanation which is accurate on the face of it but misleading about the true circumstances of the matter can also amount to a misrepresentation.
The moral of the story
Sellers should be upfront about any issues that affect their property and buyers should take all steps they consider appropriate to obtain the information they want before committing to a purchase.
If a seller doesn’t know – or is unsure of – the answer to a buyer’s question, they should consider not answering the question. However, by not providing a response the seller could be putting their sale at risk, as the buyer may not be prepared to proceed without an answer.
Sometimes a seller will qualify their response, but this in itself is not always enough to prevent a claim. It is important to discuss it with your property solicitor, and to make sure the solicitor who is carrying out conveyancing on your property transaction has undertaken the correct conveyancing searches.
If you would like to read about real cases which have been decided by the Courts, examples can be found in our article “Property Misrepresentation Claims in Practice”.
If you are facing a claim for property misrepresentation or believe that you have a claim yourself, please do feel free to get in touch with us.
And if you are looking for a property solicitor to make sure your sale goes well from the outset, contact one of our specialist property solicitors in Braintree, Brighton, Chelmsford, Croydon, Hornchurch or Wickford.
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.
Try our new Property Misrepresentation Assessment service
If you think your seller withheld information about your property, you may be able to claim against them.
We now offer a fixed-fee service so that we can assess your claim. Have a look at Assess My Claim and see if we can help.
Questions people ask about misrepresentation
As you can see, buying and selling property is not always as simple as you think. Understanding your legal position is crucial when faced with potential misrepresentation in property transactions, and we’ve tried to address some common questions below.
However, if you are still unsure please feel free to contact us for an answer.
What is property misrepresentation and what are property misrepresentation claims?
There is no specific definition of this but broadly this could be described as a claim which arises by reason of a misrepresentation occurring during a property transaction.
Can I sue the seller if I bought a house with problems that were not disclosed?
Before you can issue a claim against the seller that you purchased your property from, you will need to identify a “cause of action”. A cause of action is a legal basis of a claim. This might be for breach of contract, depending on what was contractually agreed, or for misrepresentation, if the seller actively misled you about something. Also, it is important to understand that issuing a claim is expected to be an option of last resort. The Courts expect the parties to negotiate and follow sensible and sometimes prescribed pre-action conduct. If you feel that you might have a claim, you should always take legal advice before committing to litigation.
What compensation will I receive in a property misrepresentation claim?
Damages for all types of misrepresentation cases are intended to put the claimant in the position that they would have been in had the misrepresentation not been made.
In property misrepresentation cases, this is normally the difference between what you paid for the property and what it would have been worth, had the truth been told. This is called diminution in value.
What should a seller disclose when selling their property?
The seller does not have to disclose anything but if they do not, then a buyer might decide not to take the risk of buying the property.
Normally a seller will fill out a property information form. For residential purchases, the Law Society published a standard property information form for this purpose, called a TA6 or a TA7.
What if the seller lied on the property information form?
If a party to a contract deliberately misrepresented facts relating to the property with the intention of misleading the buyer, a fraudulent misrepresentation can arise. Often, such a representation does not need to be in writing.
Do I have to declare planning applications, like a neighbour’s extension?
There is case law on this and it will normally depend on whether or not you have received a formal planning notice.
Have a look at our article u003ca href=u0022https://cunningtons.co.uk/property-misrepresentation-claims/u0022u003eProperty Misrepresentation Claims in Practice for a case on this point.
Can a home buyer sue the seller?
If you have purchased a property from someone, and believe that they have not complied with the terms of the contract or have misled you about something when deciding whether or not to proceed, there may be a claim. It is, however, important to consider the basis of that claim before issuing it (i.e. suing the seller). Suing someone is considered by the Courts to be the option of last resort, and certain pre-action steps should be observed before committing to litigation. A solicitor will be able to consider the basis of your claim, the evidence in relation to it and advise you as to what you need to do.
My seller lied about flooding – what can I do?
In our experience, this is fairly common. In short, what can be done about this depends on the terms of the contract agreed with the seller and the extent to which the information that they provided to you was misleading and caused you to enter into the contract by reason of your reliance on it. If a seller has expressly stated “no”, the property has never flooded and it transpires that it has (and evidence of this would be important to locate), then there could be a claim against the seller.
Should my seller have disclosed an insurance claim?
A seller is not obliged to volunteer information about historical insurance claims to a buyer. However, much of the time, standard property information forms are used which ask the seller this question. There might be a claim for misrepresentation if an insurance claim was made historically by the seller has answered “no” to any question asked of them by the buyer which was aimed at understanding whether or not such insurance claims had been made. However, as most of the time, the measure of damages (this is the “compensation” that the Court would award) would be based on diminution in value, it is worth thinking carefully about whether or not it is financially worth a claim against your seller. For example, an insurance claim in relation to a fence that blew down in a storm is probably not going to have a major impact on the value of the property when compared to a claim for significant subsidence.
My seller didn’t disclose plumbing issues.
A seller is not obliged to volunteer information about issues with the plumbing to a buyer. There are some questions in standard property information forms which ask about things such as whether or not the boiler is in working order and whether or not the property or surrounding area has ever flooded. If there is evidence that the plumbing issue in question existed during the period of the seller’s ownership, and the seller has actively mislead the buyer by suggesting that such an issue did not exist (which is not the same as staying silent on the point), then there could be a misrepresentation claim.
Do you have to disclose mice when selling your house?
A seller is not obliged to volunteer information about vermin or other pest issues with a property. The basic position is that it is for the buyer (normally via their surveyor), to satisfy themselves that they want to purchase a property. If something in particular is important to a buyer, they should ask about this. If a seller is asked about any issues, they should provide an honest answer, or they could face a misrepresentation claim later.
How long are you liable after selling a house?
It depends on the basis of claim. For example, in a breach of contract claim, the basic deadline to pursue a claim would be six years from the date of the breach of contract (so normally, six years from completion). If the claim is based on misrepresentation, then the deadline would normally be (taking a conservative approach) six years from the date the contract was entered intro in reliance on the misrepresentations (so normally six years from exchange of contracts). There might also be other considerations to take account of. For example, fraud and deliberate concealment can have the effect of extending any deadlines to bring a claim. The Limitation Act 1980 sets out a number of “deadlines” to pursue certain types of claims and sometimes entire disputes turn on whether or not it can be said that the limitation period has expired or not.
Can you be sued after selling a house?
It depends on who is asking. If the question is can a seller be sued by a buyer, the answer is “yes”, a buyer can sue a seller of a property. Depending on the type of claim, there will be time limits to consider, however. Sometimes a seller can even remain liable to neighbours for breaches of restrictive covenants and other requirements they haver agreed to observe, but this is a complicated issue and does not arise that often.
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
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.
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?
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)
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.
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)
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.
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.
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
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.