416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
We bought a cottage nearly three years ago and our seller did not disclose on the Property Information Form that the house and grounds had been flooded. The actually wrote in this segment of the form that asked regarding floods ‘Not in our occupancy ‘. Ten months after we moved in Storm Callum flooded the whole of our downstairs to a level of eighteen inches throughout and the insurance claim came to approx. 42K plus we had to spend approx 20K on things that were not covered. After this several neighbours informed us the cottage had flooded during the previous owner occupancy and produced photographs of the grounds to prove it. The previous owners even had purchased flood gates which they took with them. We sought legal advice from a local solicitor who told us it would not be worth pursuing as we could be offered as little as £10 per month as settlement what ever the claim came to. Could you let me know if we do have a case and have been misinformed please. Many thanks.
We are sorry to hear of this, which must have been very stressful.
It does sound as though you have a claim if what was said in the property information form is what you stated, nothing else was said or done which might qualify this statement during the transaction and you have categorical evidence that it was not in fact true. The missing flood gates would seem to be particularly helpful evidence, as would the oral evidence of neighbours, who would probably need to confirm when the photographs were taken.
On the basis that it does sound as though there is a claim, perhaps you have misunderstood the advice from your local solicitor. One of the first steps to take before committing to the cost and risk of any litigation is to consider whether or not the proposed defendant has assets to pay any judgment which you may be awarded by a Court, or any settlement sum agreed. If a Court makes a judgment in your favour (which includes approving a settlement agreement that the parties reach – called a Consent Order or Tomlin Order), this is really just a piece of paper.
Once a Court makes a judgment order against a defendant, the defendant becomes a judgment debtor and the claimant a judgment creditor. If a judgment debtor does not comply with a judgment or court approved settlement agreement, then enforcement action would need to be taken through the Court. If a judgment debtor does not have any assets or only limited means to pay a judgment debt, then sometimes a judgment debt can be varied by the Court to make it payable by instalments. For judgment debtors that have very little means, this could potentially be as low as you were advised.
It is always worthwhile taking steps to make sure the proposed defendant is not bankrupt (for individuals) or in liquidation (for companies) or subject to other formal insolvency processes. Registers of such individuals and companies are kept and normally, details are publicly advertised.
Assuming the proposed defendant appears solvent (there is of course no way to be certain) then identifying property or other assets that they own is worthwhile. Again, public registers exist which can be helpful to consider.
Various enforcement options exist and which can be applied for through the Courts. These include:-
· Attachment of Earnings Orders – When the Court orders the debtor’s employer to pay a certain sum direct from their salary to the creditor
· Charging Orders – When the debt is secured against the debtor’s property or shares
· Bailiffs of High Court Enforcement Officers – These are individuals empowered by the Court to take items of value from the debtor in discharge of the debt
· Third Party Debt Orders – This is when the Court orders a third party, which owes the debtor money, to pay such sum to the creditor. This would include banks where the debtor might hold accounts
· Asking the Court to make an Order forcing the debtor to attend Court and provide information – Whilst not an enforcement option in itself, it can result in information about assets being provided
· Bankruptcy or Liquidation – Again, not an enforcement method in itself, if a debtor cannot pay a debt, then they may be insolvent
All of these options have benefits and drawbacks and do not guarantee payment of the judgment debt. Unfortunately it is true to say that “you cannot get blood out of a stone”; if a debtor has no assets at all, the prospect of the judgment debt being paid is low. However, judgment creditors will have a number of years to enforce their judgment, so sometimes waiting for the opportune moment is appropriate.
As a final point, whilst three years have gone by, the basic position is that you will have six years from the date of completion (but possibly earlier) to bring your claim.
We would be happy to discuss matters further with you, if you would like to get in touch.
Thank you for your comment. We do have to point out, however, that we cannot give specific advice on this website. We are only able to provide general guidance, which should not be considered a substation for obtaining full legal advice.
We are in the process of selling our house and we will need to complete the TA6/10 forms at some point. I am a little worried and unsure what/how to explain our neighbours behaviours and if it is classed as a dispute or if it is just reasonable. It depends on the person I guess but this is how I see it: We are between two neighbours which I have known for years and one in fact was a relative by marriage. We are on talking terms and they are friendly. We do/have had intermittent noise from both sides, one during the day and one during the night. Sometimes it is hardly noticeable, background noise and sometimes you can hear the words and singing. It can lapse into the garden if the weather is nice. I must add I have lived in a village location all my life and I am use to it being very quiet so this may not be a problem for other people. The neighbours on the adjoining side have had sporadic music on after 11pm, mostly during lockdown but sometime this is at weekends. It is then hard to get their attention to turn it down. I have previously called the police to try to get them to make contact. Although on talking terms and they are fine face to face we believe this could be backlash from my uncles marriage breakup and therefore personal (we heard my name being shouted). The neighbours not adjoining our property have music on during the day but this only came to light during the lockdown as it was hot and the windows were open. We had spoken to her but it didn’t really make much difference so we contacted the council and this has now been resolved. These neighbours are council tenants and don’t take pride in the property so we also trim the hedge top (their border) for them and we have enquired about a new fence between the properties too. We had done some corrective works on some rotten wood as it was an eye saw and we have a two year old and they have a dog, so it could be dangerous (not sure on the dogs nature but they have grandkids around we guess that it should be fine). For some people whom are use to quiet they may find this a little too noisy or the neighbours untidy but for others this may be hardly noticeable. What on earth should we disclose and how do you explain this without making it sound horrendous (when it is down to interpretation and you need to be there really) but without landing yourself in hot water by not disclosing enough…is it simply what I have put above?!
There is no statutory definition of a “dispute” and you are correct in your assumption that the answer to such a question is quite subjective. This is relevant to any misrepresentation claim and does complicate things as a result. What one person considers to be a dispute may not be to another. With this in mind, there is no right or wrong answer per se. In law, grey areas always exist and it is about balancing risk and benefit.
We have cited the case of McMeekin v Long [2003] in our blog “Property Misrepresentation Claims in Practice” (https://cunningtons.co.uk/property-misrepresentation-claims/) as an example of a misrepresentation claim which related to whether or not a seller was correct to answer “no” to the questions regarding any pre-existing disputes with neighbours. To the trial judge, it was clear that there was an ongoing dispute and there was therefore a misrepresentation, despite the seller having considered the matter closed.
Another case relating to neighbour disputes which have not been disclosed in the property information form (noisy neighbours in particular) is Pedro v Thompson [2012]. In this case, it was determined that there had been no misrepresentation as the seller was not aware of the dispute and answered the enquires truthfully.
These cases show that there is no black and white answer to the question and that each matter will turn on its facts. You should be able to find on the internet transcriptions of these judgments. A read of these may be of assistance in deciding what answers you may wish to give in the property information form and how the Court deals with such subjective answers.
The only “safe” way to avoid future arguments is to explain the position as a whole, so the buyer knows what they are buying and what the “problem” is. Broadly, it is fair to say that if it is something that an average buyer might want to know about, then it is probably something which should be disclosed. A misrepresentation cannot occur if the statement given is accurate or true.
The alternative is to say nothing and decline to answer questions on the point. A misrepresentation cannot (or would very rarely) occur if no statement is made at all.
This may be something that your conveyancing solicitor is prepared to advise on and they would certainly be worth speaking to. We always make time for clients that instruct us to deal with their conveyancing but realistically it may not be possible to give a categorically clear “yes” or “no” answer, as there probably isn’t one. This can, for example, be contrasted with the question in the property information form regarding whether or not the property is in a controlled parking zone; clearly here it either is or it isn’t.
We are about to put our house on the market. It has a listed building next door which needs renovation and this is owned by our neighbours. When the neighbours moved in 3 years ago they immediately erected a fence around their property. At the time we queried with the council (anonymously) whether this fence was permitted within the curtilage of the listed property without listed consent as it was an eyesore. The council said they didn’t have a problem with the fence as it didn’t touch the listed building, but our query alerted them to the fact that the listed planning permission on the neighbour’s property had lapsed many years ago so and wasn’t live. They subsequently threatened enforcement action against the neighbour (who had commenced building work) who had to reapply for listed planning permission in order to continue to renovate their house. This took 2 years at considerable expense no doubt, and has just come through. Our neighbours are grumpy and blame us for this (we gather) although we have never actually spoken to them about it, or had any exchange of words for 2 years. Do we have to explain the full series of events on the seller’s property information form? There is no ‘dispute’ as such, we just have grumpy neighbours who we don’t speak to.
There is no statutory definition of a “dispute” and case law relating to undisclosed disputes with neighbours highlights the fact that answers given in the property information form on the point are very subjective. What one person considers a dispute is not necessarily something which someone else does and the Court will have regard to the fact that the property information form is designed for lay persons, without legal knowledge, to complete. The question would ordinarily turn on what a reasonable individual would consider to be a dispute.
Whilst we cannot give specific legal advice on this website, by way of guidance, generally the only correct advice to minimise future risk is either to explain the position in full to the purchaser or not answer the question at all. From what you have written, we would suggest that most people would consider the circumstances as not amounting to a dispute, as there is no difference of opinion or argument between you, but we do not know the full circumstances. It would be up to a client, based on their appetite for risk, to decide whether or not they wanted to answer “no” to the question in the property information form or explain the position in full.
For an example of a case in which there was a failure to disclose details of an ongoing dispute with neighbours, see our blog post “Property Misrepresentation in Practice”, under the heading “The seller told me that everything with the neighbours was fine”.
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We bought a cottage nearly three years ago and our seller did not disclose on the Property Information Form that the house and grounds had been flooded. The actually wrote in this segment of the form that asked regarding floods ‘Not in our occupancy ‘. Ten months after we moved in Storm Callum flooded the whole of our downstairs to a level of eighteen inches throughout and the insurance claim came to approx. 42K plus we had to spend approx 20K on things that were not covered. After this several neighbours informed us the cottage had flooded during the previous owner occupancy and produced photographs of the grounds to prove it. The previous owners even had purchased flood gates which they took with them. We sought legal advice from a local solicitor who told us it would not be worth pursuing as we could be offered as little as £10 per month as settlement what ever the claim came to.
Could you let me know if we do have a case and have been misinformed please. Many thanks.
We are sorry to hear of this, which must have been very stressful.
It does sound as though you have a claim if what was said in the property information form is what you stated, nothing else was said or done which might qualify this statement during the transaction and you have categorical evidence that it was not in fact true. The missing flood gates would seem to be particularly helpful evidence, as would the oral evidence of neighbours, who would probably need to confirm when the photographs were taken.
On the basis that it does sound as though there is a claim, perhaps you have misunderstood the advice from your local solicitor. One of the first steps to take before committing to the cost and risk of any litigation is to consider whether or not the proposed defendant has assets to pay any judgment which you may be awarded by a Court, or any settlement sum agreed. If a Court makes a judgment in your favour (which includes approving a settlement agreement that the parties reach – called a Consent Order or Tomlin Order), this is really just a piece of paper.
Once a Court makes a judgment order against a defendant, the defendant becomes a judgment debtor and the claimant a judgment creditor. If a judgment debtor does not comply with a judgment or court approved settlement agreement, then enforcement action would need to be taken through the Court. If a judgment debtor does not have any assets or only limited means to pay a judgment debt, then sometimes a judgment debt can be varied by the Court to make it payable by instalments. For judgment debtors that have very little means, this could potentially be as low as you were advised.
It is always worthwhile taking steps to make sure the proposed defendant is not bankrupt (for individuals) or in liquidation (for companies) or subject to other formal insolvency processes. Registers of such individuals and companies are kept and normally, details are publicly advertised.
Assuming the proposed defendant appears solvent (there is of course no way to be certain) then identifying property or other assets that they own is worthwhile. Again, public registers exist which can be helpful to consider.
Various enforcement options exist and which can be applied for through the Courts. These include:-
· Attachment of Earnings Orders – When the Court orders the debtor’s employer to pay a certain sum direct from their salary to the creditor
· Charging Orders – When the debt is secured against the debtor’s property or shares
· Bailiffs of High Court Enforcement Officers – These are individuals empowered by the Court to take items of value from the debtor in discharge of the debt
· Third Party Debt Orders – This is when the Court orders a third party, which owes the debtor money, to pay such sum to the creditor. This would include banks where the debtor might hold accounts
· Asking the Court to make an Order forcing the debtor to attend Court and provide information – Whilst not an enforcement option in itself, it can result in information about assets being provided
· Bankruptcy or Liquidation – Again, not an enforcement method in itself, if a debtor cannot pay a debt, then they may be insolvent
All of these options have benefits and drawbacks and do not guarantee payment of the judgment debt. Unfortunately it is true to say that “you cannot get blood out of a stone”; if a debtor has no assets at all, the prospect of the judgment debt being paid is low. However, judgment creditors will have a number of years to enforce their judgment, so sometimes waiting for the opportune moment is appropriate.
As a final point, whilst three years have gone by, the basic position is that you will have six years from the date of completion (but possibly earlier) to bring your claim.
We would be happy to discuss matters further with you, if you would like to get in touch.
Thank you so much for your informative response. We will consider our options and get back to you.
Very grateful.
Thank you for your comment. We do have to point out, however, that we cannot give specific advice on this website. We are only able to provide general guidance, which should not be considered a substation for obtaining full legal advice.
We are in the process of selling our house and we will need to complete the TA6/10 forms at some point. I am a little worried and unsure what/how to explain our neighbours behaviours and if it is classed as a dispute or if it is just reasonable. It depends on the person I guess but this is how I see it:
We are between two neighbours which I have known for years and one in fact was a relative by marriage. We are on talking terms and they are friendly. We do/have had intermittent noise from both sides, one during the day and one during the night. Sometimes it is hardly noticeable, background noise and sometimes you can hear the words and singing. It can lapse into the garden if the weather is nice. I must add I have lived in a village location all my life and I am use to it being very quiet so this may not be a problem for other people.
The neighbours on the adjoining side have had sporadic music on after 11pm, mostly during lockdown but sometime this is at weekends. It is then hard to get their attention to turn it down. I have previously called the police to try to get them to make contact. Although on talking terms and they are fine face to face we believe this could be backlash from my uncles marriage breakup and therefore personal (we heard my name being shouted).
The neighbours not adjoining our property have music on during the day but this only came to light during the lockdown as it was hot and the windows were open. We had spoken to her but it didn’t really make much difference so we contacted the council and this has now been resolved. These neighbours are council tenants and don’t take pride in the property so we also trim the hedge top (their border) for them and we have enquired about a new fence between the properties too. We had done some corrective works on some rotten wood as it was an eye saw and we have a two year old and they have a dog, so it could be dangerous (not sure on the dogs nature but they have grandkids around we guess that it should be fine).
For some people whom are use to quiet they may find this a little too noisy or the neighbours untidy but for others this may be hardly noticeable. What on earth should we disclose and how do you explain this without making it sound horrendous (when it is down to interpretation and you need to be there really) but without landing yourself in hot water by not disclosing enough…is it simply what I have put above?!
Many thanks for your comment.
There is no statutory definition of a “dispute” and you are correct in your assumption that the answer to such a question is quite subjective. This is relevant to any misrepresentation claim and does complicate things as a result. What one person considers to be a dispute may not be to another. With this in mind, there is no right or wrong answer per se. In law, grey areas always exist and it is about balancing risk and benefit.
We have cited the case of McMeekin v Long [2003] in our blog “Property Misrepresentation Claims in Practice” (https://cunningtons.co.uk/property-misrepresentation-claims/) as an example of a misrepresentation claim which related to whether or not a seller was correct to answer “no” to the questions regarding any pre-existing disputes with neighbours. To the trial judge, it was clear that there was an ongoing dispute and there was therefore a misrepresentation, despite the seller having considered the matter closed.
Another case relating to neighbour disputes which have not been disclosed in the property information form (noisy neighbours in particular) is Pedro v Thompson [2012]. In this case, it was determined that there had been no misrepresentation as the seller was not aware of the dispute and answered the enquires truthfully.
These cases show that there is no black and white answer to the question and that each matter will turn on its facts. You should be able to find on the internet transcriptions of these judgments. A read of these may be of assistance in deciding what answers you may wish to give in the property information form and how the Court deals with such subjective answers.
The only “safe” way to avoid future arguments is to explain the position as a whole, so the buyer knows what they are buying and what the “problem” is. Broadly, it is fair to say that if it is something that an average buyer might want to know about, then it is probably something which should be disclosed. A misrepresentation cannot occur if the statement given is accurate or true.
The alternative is to say nothing and decline to answer questions on the point. A misrepresentation cannot (or would very rarely) occur if no statement is made at all.
This may be something that your conveyancing solicitor is prepared to advise on and they would certainly be worth speaking to. We always make time for clients that instruct us to deal with their conveyancing but realistically it may not be possible to give a categorically clear “yes” or “no” answer, as there probably isn’t one. This can, for example, be contrasted with the question in the property information form regarding whether or not the property is in a controlled parking zone; clearly here it either is or it isn’t.
We hope that this guidance if of some assistance.
We are about to put our house on the market. It has a listed building next door which needs renovation and this is owned by our neighbours. When the neighbours moved in 3 years ago they immediately erected a fence around their property. At the time we queried with the council (anonymously) whether this fence was permitted within the curtilage of the listed property without listed consent as it was an eyesore. The council said they didn’t have a problem with the fence as it didn’t touch the listed building, but our query alerted them to the fact that the listed planning permission on the neighbour’s property had lapsed many years ago so and wasn’t live. They subsequently threatened enforcement action against the neighbour (who had commenced building work) who had to reapply for listed planning permission in order to continue to renovate their house. This took 2 years at considerable expense no doubt, and has just come through. Our neighbours are grumpy and blame us for this (we gather) although we have never actually spoken to them about it, or had any exchange of words for 2 years. Do we have to explain the full series of events on the seller’s property information form? There is no ‘dispute’ as such, we just have grumpy neighbours who we don’t speak to.
Thank you for your comment.
There is no statutory definition of a “dispute” and case law relating to undisclosed disputes with neighbours highlights the fact that answers given in the property information form on the point are very subjective. What one person considers a dispute is not necessarily something which someone else does and the Court will have regard to the fact that the property information form is designed for lay persons, without legal knowledge, to complete. The question would ordinarily turn on what a reasonable individual would consider to be a dispute.
Whilst we cannot give specific legal advice on this website, by way of guidance, generally the only correct advice to minimise future risk is either to explain the position in full to the purchaser or not answer the question at all. From what you have written, we would suggest that most people would consider the circumstances as not amounting to a dispute, as there is no difference of opinion or argument between you, but we do not know the full circumstances. It would be up to a client, based on their appetite for risk, to decide whether or not they wanted to answer “no” to the question in the property information form or explain the position in full.
For an example of a case in which there was a failure to disclose details of an ongoing dispute with neighbours, see our blog post “Property Misrepresentation in Practice”, under the heading “The seller told me that everything with the neighbours was fine”.