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