408 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
Hi Mark, We recently moved property in November 2019 and have been slowly renovating the dated house room by room.
Before buying, we wanted to be clear on all the structural changes that the property had undergone under the ownership of the vendor. We queried a chimney breast removal which hadn’t been highlighted up to this point by the vendor, and we were subsequently supplied with documents that showcased the work in question by a building surveyor/structural engineer.
In short, the documents/calcs show the requirement for an RSJ to be fitted above the removed chimney breast.
Last week, I removed the facade and overlay that presumably covered this RSJ, only to find a lopsided, barely-there concrete lintel, literally put in at a crude angle.
I’m in the process of having a new structural engineer finalise Thier assessment of the work that’s been done and the work that will now be required to make it good.
Does this sound like misrepresentation of some sort to you?
Thanks in advance for any advice or opinion you can provide!
For a misrepresentation to exist, there must be a statement which is untrue and this statement must be relied upon to some degree when entering into the contract.
Structural issues are not normally something which a seller would provide information about but if you have specifically asked something and the response was untrue, then there may be a claim for misrepresentation.
The standard conditions of sale would normally exclude things such as oral discussions. For example, if you questioned the chimney breast during a viewing, to be presented with some documentation at that point to satisfy you, we would be hesitant to say that you were able to pursue a claim. If the standard conditions of sale were included into the contract, you have contractually agreed not to rely on any representations unless these are in writing. This may sound unfair but the point of this clause is to bring some finality to the transaction and ensure that the parties incorporate everything they want to into the contract. However, the standard conditions of sale do not exclude fraudulent or reckless misrepresentation. If the sellers were led to believe that the documentation that they were supplied with represented the work undertaken, then it is doubtful that there would be any claim for fraudulent misrepresentation. As for reckless misrepresentation, we suspect that the matter would turn on whether or not it is reasonable for a seller to provide the documentation without checking that the work contained in the documentation was completed. Unless the sellers knew or were aware of the problem, which might be difficult to prove, we are hesitant to suggest that there is claim for misrepresentation in this respect.
On the other hand, if this was an additional enquiry that you raised via your solicitor and the response was to provide materially incorrect documentation, with or without explanation, then there may be a claim for misrepresentation. It would potentially be for you to pursue the sellers and the sellers to pursue their builders for an indemnity, so far as they are able and depending on the amount of time that has passed.
Normally it is advisable for purchasers to undertake a survey. If you instructed a surveyor, it would be worthwhile considering the scope of their instructions. It may be that your surveyor missed this point and can be considered negligent. However, most surveyors’ terms and conditions for basic surveys will exclude any duty to look being walls and wall coverings.
We also recommend that you check what buildings or other insurance you have in place, as you may be covered for a structural defect.
Whilst we are unable to provide any specific advice on this website which can be relied upon, we hope that the above guidance is of some assistance. Please do feel free to get in touch if you would like to consider the matter further.
My partner and I bought our house in February this year. Having then wanted to do some electrical installation, it came to light that the circuit board was outdated and in fact now condemned. It also came to light that although the seller said there had been no electrical work in the last 10 years – there had obviously been some. My feeling is this should have brought this issue to light – as it seems this is the only question related to electrics that was asked. We are now looking at a bill of £5000 for a full rewire having paid full asking price. Am I clutching at straws? Do I fall under buyer beware as it seems neither the solicitor nor surveyor apparently is obliged to draw our attention to this. Thank you
You are correct that the basic principle is buyer beware or “caveat emptor”. However, if you can prove that there were electrical works undertaken at some point, contrary to what is stated in the property information form, then there may be a claim for misrepresentation. However, most of the time, the measure of damage would be diminution in value. This is the difference in the price paid for the property and what would have been paid had the defect been known about. Therefore, your loss might not be £5,000. It could be less.
You would also need to show that you relied on this statement when entering into the contract. You mention in your post that there had “obviously” been some work. If you knew that work had been undertaken and the seller was not telling the truth in the property information, you arguably did not rely on the statement when entering into the contract; you already knew the truth.
I think it is unlikely that your solicitor could be blamed for not being able to identify defective wiring. A solicitor’s retainer is likely to extend only to undertaking the legal work. Case law on solicitor negligence matters is such that unless there was a risk which was not obvious to a client and only obvious to a solicitor, then there would be a duty to highlight this. Having said this, if the property information form identified issues (such as a lack of certificates) we suspect that there might be some obligation to point out the effect of this.
We are not certain that a claim would lie against your surveyor either. Whether or not your surveyor agreed to look at the circuit board itself is another matter. Surveyors will generally undertake checks of the structure and integrity of the property. What a surveyor is contracted to do depends on the terms of their retainer and whether or not your surveyor could be held liable for not pointing out a defective circuit board . This is the same with any professional negligence matter. The starting point is to look at what the professional has promised to do in their written retainer and decide whether or not there is a breach of any of those duties.
We hope that this general guidance is of some help.
Hi Mark, me and my partner purchased our first property in May2019. It is next to a brook and on the Environmental survey report it states that the area would have a 1 in 75 year chance of flooding. And the main issue is on the Property Inspection Form that we were provided the seller did not tick this ‘river’ flooding box. Or any in matter of fact. Since we have moved in the garden has been flooded 5 times and we have also had sewer flooding due to Severn Trent on most of these occasions (but they are looking into this).
After speaking to the neighbour he has said that the garden is always liable to flooding. We feel that regularity of our flooding indicates that we have been given incorrect information. Is there anything we can do about this?
We are sorry to hear about this but it is not an uncommon issue. There may be a case to answer here if it can be proved that the garden was liable to flooding and had flooded in previous years during the seller’s ownership; it is not generally a defence to say that the buyer could have discovered the truth. The basic position is that a buyer is entitled to rely on what the seller says I the property information form, which is not obligatory for the seller to complete.
However, from what you have written, it seems that the seller did tick the relevant boxes in the property information form to say that flooding had occurred, but was not specific about the source of the flooding, to say it was the river. If this is the case, it might make the case more difficult. It would likely be necessary to prove that the source of the historical flooding was as a result of the river, which might be difficult.
Also, the fact that an environmental report identified the issue, albeit to a significantly less extent than you may have been led to believe, might be relevant to the question of whether or not you contributed to your own loss by not undertaking further enquiries and whether or not it can be said that you were entitled to rely exclusively on the seller’s representations. For a misrepresentation to occur, there normally needs to be a specific statement of fact by the seller, which the buyer relied on when entering into the contract and which is not correct.
We hope that this general guidance is of some assistance. If you would like to explore the matter in more detail with us, please feel free to get in touch.
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.
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
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.
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
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.
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?
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.
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.
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.
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.
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.
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?
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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?
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.
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?
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.
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.
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.
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”.
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.
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.
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.
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.
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/
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?
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.
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
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.
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?
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.
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?
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.
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.
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
Let’s face it – the raising of the need for a “prenup” or prenuptial agreement within a loving relationship can be difficult to contemplate. An engagement and the planning of a wedding is an exciting time however it may be that some uncomfortable conversations are necessary relating to the parties’ assets acquired before their relationship. […]
Dealing with sellers’ non-disclosure: Introducing our fixed-fee property misrepresentation assessment You’ve just moved into your new home, excited to begin a new chapter in your life. But as you settle in, you discover issues the seller conveniently ‘forgot’ to mention. Suddenly, your perfect new home feels more like a house of cards. Sound familiar? The […]
Hi Mark,
We recently moved property in November 2019 and have been slowly renovating the dated house room by room.
Before buying, we wanted to be clear on all the structural changes that the property had undergone under the ownership of the vendor. We queried a chimney breast removal which hadn’t been highlighted up to this point by the vendor, and we were subsequently supplied with documents that showcased the work in question by a building surveyor/structural engineer.
In short, the documents/calcs show the requirement for an RSJ to be fitted above the removed chimney breast.
Last week, I removed the facade and overlay that presumably covered this RSJ, only to find a lopsided, barely-there concrete lintel, literally put in at a crude angle.
I’m in the process of having a new structural engineer finalise Thier assessment of the work that’s been done and the work that will now be required to make it good.
Does this sound like misrepresentation of some sort to you?
Thanks in advance for any advice or opinion you can provide!
Thank you for your comment.
For a misrepresentation to exist, there must be a statement which is untrue and this statement must be relied upon to some degree when entering into the contract.
Structural issues are not normally something which a seller would provide information about but if you have specifically asked something and the response was untrue, then there may be a claim for misrepresentation.
The standard conditions of sale would normally exclude things such as oral discussions. For example, if you questioned the chimney breast during a viewing, to be presented with some documentation at that point to satisfy you, we would be hesitant to say that you were able to pursue a claim. If the standard conditions of sale were included into the contract, you have contractually agreed not to rely on any representations unless these are in writing. This may sound unfair but the point of this clause is to bring some finality to the transaction and ensure that the parties incorporate everything they want to into the contract. However, the standard conditions of sale do not exclude fraudulent or reckless misrepresentation. If the sellers were led to believe that the documentation that they were supplied with represented the work undertaken, then it is doubtful that there would be any claim for fraudulent misrepresentation. As for reckless misrepresentation, we suspect that the matter would turn on whether or not it is reasonable for a seller to provide the documentation without checking that the work contained in the documentation was completed. Unless the sellers knew or were aware of the problem, which might be difficult to prove, we are hesitant to suggest that there is claim for misrepresentation in this respect.
On the other hand, if this was an additional enquiry that you raised via your solicitor and the response was to provide materially incorrect documentation, with or without explanation, then there may be a claim for misrepresentation. It would potentially be for you to pursue the sellers and the sellers to pursue their builders for an indemnity, so far as they are able and depending on the amount of time that has passed.
Normally it is advisable for purchasers to undertake a survey. If you instructed a surveyor, it would be worthwhile considering the scope of their instructions. It may be that your surveyor missed this point and can be considered negligent. However, most surveyors’ terms and conditions for basic surveys will exclude any duty to look being walls and wall coverings.
We also recommend that you check what buildings or other insurance you have in place, as you may be covered for a structural defect.
Whilst we are unable to provide any specific advice on this website which can be relied upon, we hope that the above guidance is of some assistance. Please do feel free to get in touch if you would like to consider the matter further.
My partner and I bought our house in February this year.
Having then wanted to do some electrical installation, it came to light that the circuit board was outdated and in fact now condemned.
It also came to light that although the seller said there had been no electrical work in the last 10 years – there had obviously been some.
My feeling is this should have brought this issue to light – as it seems this is the only question related to electrics that was asked.
We are now looking at a bill of £5000 for a full rewire having paid full asking price.
Am I clutching at straws? Do I fall under buyer beware as it seems neither the solicitor nor surveyor apparently is obliged to draw our attention to this.
Thank you
Thank you for your comment.
You are correct that the basic principle is buyer beware or “caveat emptor”. However, if you can prove that there were electrical works undertaken at some point, contrary to what is stated in the property information form, then there may be a claim for misrepresentation. However, most of the time, the measure of damage would be diminution in value. This is the difference in the price paid for the property and what would have been paid had the defect been known about. Therefore, your loss might not be £5,000. It could be less.
You would also need to show that you relied on this statement when entering into the contract. You mention in your post that there had “obviously” been some work. If you knew that work had been undertaken and the seller was not telling the truth in the property information, you arguably did not rely on the statement when entering into the contract; you already knew the truth.
I think it is unlikely that your solicitor could be blamed for not being able to identify defective wiring. A solicitor’s retainer is likely to extend only to undertaking the legal work. Case law on solicitor negligence matters is such that unless there was a risk which was not obvious to a client and only obvious to a solicitor, then there would be a duty to highlight this. Having said this, if the property information form identified issues (such as a lack of certificates) we suspect that there might be some obligation to point out the effect of this.
We are not certain that a claim would lie against your surveyor either. Whether or not your surveyor agreed to look at the circuit board itself is another matter. Surveyors will generally undertake checks of the structure and integrity of the property. What a surveyor is contracted to do depends on the terms of their retainer and whether or not your surveyor could be held liable for not pointing out a defective circuit board . This is the same with any professional negligence matter. The starting point is to look at what the professional has promised to do in their written retainer and decide whether or not there is a breach of any of those duties.
We hope that this general guidance is of some help.
Hi Mark, me and my partner purchased our first property in May2019. It is next to a brook and on the Environmental survey report it states that the area would have a 1 in 75 year chance of flooding. And the main issue is on the Property Inspection Form that we were provided the seller did not tick this ‘river’ flooding box. Or any in matter of fact. Since we have moved in the garden has been flooded 5 times and we have also had sewer flooding due to Severn Trent on most of these occasions (but they are looking into this).
After speaking to the neighbour he has said that the garden is always liable to flooding. We feel that regularity of our flooding indicates that we have been given incorrect information. Is there anything we can do about this?
Thank you for your comment Adam.
We are sorry to hear about this but it is not an uncommon issue. There may be a case to answer here if it can be proved that the garden was liable to flooding and had flooded in previous years during the seller’s ownership; it is not generally a defence to say that the buyer could have discovered the truth. The basic position is that a buyer is entitled to rely on what the seller says I the property information form, which is not obligatory for the seller to complete.
However, from what you have written, it seems that the seller did tick the relevant boxes in the property information form to say that flooding had occurred, but was not specific about the source of the flooding, to say it was the river. If this is the case, it might make the case more difficult. It would likely be necessary to prove that the source of the historical flooding was as a result of the river, which might be difficult.
Also, the fact that an environmental report identified the issue, albeit to a significantly less extent than you may have been led to believe, might be relevant to the question of whether or not you contributed to your own loss by not undertaking further enquiries and whether or not it can be said that you were entitled to rely exclusively on the seller’s representations. For a misrepresentation to occur, there normally needs to be a specific statement of fact by the seller, which the buyer relied on when entering into the contract and which is not correct.
We hope that this general guidance is of some assistance. If you would like to explore the matter in more detail with us, please feel free to get in touch.
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.
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
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.
Thanks Mark. Much appreciated.
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
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.
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?
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.
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
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.
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.
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.
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
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.
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.
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.
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?
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.
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
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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”.
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.
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.
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.
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.
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/
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?
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.
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
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.
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?
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.
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.
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.
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.
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