416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
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.
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.
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?
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.
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?
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.
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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.
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.
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?
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.
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?
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.