416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
Hi, my partner purchased a property over 5 years ago this was sold to him as a 2 bed terraced property. We are now 5 years down the line looking to sell the property to be told it officially is only a 1 bedroom property with a loft conversion due to there being no fire door. There was no door when we originally purchased and can’t see how it was sold to us and went through the survey checks without being picked up as being listed incorrectly. We now run the risk of getting less for our property. We have no clue when the extension was done and am not sure how we would find out this information. Is this misinterpretation or is this is our own fault?
Whilst generally speaking, the fact that the inaccuracy of a representation might be discoverable by the aggrieved party to the contract is not normally a defence, in this matter we suspect that there is unlikely to be any sort of claim here.
The standard conditions of sale normally say that the buyer accepts the property in the condition it is in at the date of exchange of contracts. This would include any breaches of planning, building or other regulations. It is for the buyer to check this and ask the necessary questions if this is something that concerns them.
The fact that there is no fire door does not change the fact that, strictly speaking, the property has two bedrooms. It was not sold to you on the basis that it has two bedrooms and it is unnecessary for there to be a fire door, in which case there may be a claim. Unless the aggrieved party has been actively mislead into believing a state of facts which was untrue or inaccurate, and silence on a particular point would not generally be enough, there is rarely a claim for misrepresentation.
It has come to my attention that the property we completed on in January 2020 is significantly smaller according to the title deeds than what was advertised.
We own the leasehold on a ground floor flat in a London terrace. The sales brochures all designate the garden as being ‘private’ and included in the floor plan. This garden space also includes the extension the previous leaseholders did to the property (amounting to nearly half the liveable space included a bedroom and half the living room). This was all above board with planning permission etc. We are the only flat with access to the garden and no one has claimed otherwise. However our lease title deeds don’t include this, but the freeholders deeds do. So, if I am correct, technically we don’t own half the property we believed we paid for.
Am I misinterpreting this, or is this misrepresentation on the part of the sellers (stating the garden was private)? This is very concerning.
It is difficult to say what the position might be without looking at the lease, title deeds and plans themselves. It would also be necessary to look at the sale contract or transfer. All of these documents, except the contract, can be obtained from the Land Registry, but they should be with your conveyancing file. For a matter like this, an investigation as to the precise situation would have to be the starting point, if only for the fact that there might be a simple solution or simple way to rectify the situation which does not warrant the cost and aggravation of any sort of claim.
The garden would appear on the freehold title plan, even if there was a leasehold title “carved” out of it. You would expect the leasehold title to appear in a Land Registry title plan too, however. We would need to work out why that part of the property in question does not appear on your leasehold title plan, if this is indeed the case. This could be for any number of reasons. You might have a very old lease with an old plan which does not take account of a subsequent sale or lease of the garden, which happened later. There may be more than one land registry title number if this is the case. Errors at the Land Registry do happen and sometimes there can be a failure to register a transfer of land.
Once we know what the situation is, we can determine whether or not what the sellers said was factually inaccurate, which could give rise to a claim for misrepresentation.
If you would like us to look into the position in more detail for you, please do feel free to get in touch.
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.
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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Hi, my partner purchased a property over 5 years ago this was sold to him as a 2 bed terraced property. We are now 5 years down the line looking to sell the property to be told it officially is only a 1 bedroom property with a loft conversion due to there being no fire door. There was no door when we originally purchased and can’t see how it was sold to us and went through the survey checks without being picked up as being listed incorrectly. We now run the risk of getting less for our property.
We have no clue when the extension was done and am not sure how we would find out this information.
Is this misinterpretation or is this is our own fault?
Thank you for your comment Megan.
Whilst generally speaking, the fact that the inaccuracy of a representation might be discoverable by the aggrieved party to the contract is not normally a defence, in this matter we suspect that there is unlikely to be any sort of claim here.
The standard conditions of sale normally say that the buyer accepts the property in the condition it is in at the date of exchange of contracts. This would include any breaches of planning, building or other regulations. It is for the buyer to check this and ask the necessary questions if this is something that concerns them.
The fact that there is no fire door does not change the fact that, strictly speaking, the property has two bedrooms. It was not sold to you on the basis that it has two bedrooms and it is unnecessary for there to be a fire door, in which case there may be a claim. Unless the aggrieved party has been actively mislead into believing a state of facts which was untrue or inaccurate, and silence on a particular point would not generally be enough, there is rarely a claim for misrepresentation.
Hi Mark,
It has come to my attention that the property we completed on in January 2020 is significantly smaller according to the title deeds than what was advertised.
We own the leasehold on a ground floor flat in a London terrace. The sales brochures all designate the garden as being ‘private’ and included in the floor plan. This garden space also includes the extension the previous leaseholders did to the property (amounting to nearly half the liveable space included a bedroom and half the living room). This was all above board with planning permission etc. We are the only flat with access to the garden and no one has claimed otherwise. However our lease title deeds don’t include this, but the freeholders deeds do. So, if I am correct, technically we don’t own half the property we believed we paid for.
Am I misinterpreting this, or is this misrepresentation on the part of the sellers (stating the garden was private)? This is very concerning.
I appreciate your help.
Thanks,
Oscar
Thank you for your comments Oscar.
It is difficult to say what the position might be without looking at the lease, title deeds and plans themselves. It would also be necessary to look at the sale contract or transfer. All of these documents, except the contract, can be obtained from the Land Registry, but they should be with your conveyancing file. For a matter like this, an investigation as to the precise situation would have to be the starting point, if only for the fact that there might be a simple solution or simple way to rectify the situation which does not warrant the cost and aggravation of any sort of claim.
The garden would appear on the freehold title plan, even if there was a leasehold title “carved” out of it. You would expect the leasehold title to appear in a Land Registry title plan too, however. We would need to work out why that part of the property in question does not appear on your leasehold title plan, if this is indeed the case. This could be for any number of reasons. You might have a very old lease with an old plan which does not take account of a subsequent sale or lease of the garden, which happened later. There may be more than one land registry title number if this is the case. Errors at the Land Registry do happen and sometimes there can be a failure to register a transfer of land.
Once we know what the situation is, we can determine whether or not what the sellers said was factually inaccurate, which could give rise to a claim for misrepresentation.
If you would like us to look into the position in more detail for you, please do feel free to get in touch.
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.
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.