416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
Hi brought a new build carried out the usual checks Flood Risk came back Zone 1 low Risk no problems!!! moved in 18 months ago every time it rains the drain in the road over whelms on several occasion it has flooded my property I now discover that the front of the property is on a post development exceedance route and this will happen on a regular bases. My question is should the developer disclosed this fact to us a the point of sale?
Thank you for your comment Steve and we are sorry to hear of your difficulties.
There is no positive obligation on a seller to disclose anything in relation to a property. If a seller chooses to provide information regarding the property, the requirement is that the information provided should be accurate, or a misrepresentation claim could follow.
Therefore it is highly unlikely that there was a requirement to inform you that the property fronted onto a route where excess rainfall would flow in the event that the drainage capacity was overwhelmed.
There is also the question of reliance. For a misrepresentation claim to exist, the aggrieved party must have relied on the representation made. It sounds as though you relied on the Flood Risk report, rather than anything that the seller had said. It goes without saying a “low risk” does still mean that there is a risk. Whether or not there is any scope to consider a negligence claim in relation to the flood report will turn heavily on the terms and conditions under which that report was supplied.
A point which could be relevant, although this would require investigation and further consideration, so we raise it very hesitantly, is whether or not the developers could be said to have breached their duty of care under the Defective Premises Act 1972. This imposes a duty on those constructing properties to ensure that the work is undertaken in a professional manner using the right materials, so the property is fit for habitation when complete. We do not know the extent of the flooding issue but arguably, if it is serious to the extent that the property is not habitable, perhaps there is scope to say that improper materials were used to safeguard the property from flooding knowing that the property was situated in an area where excess water would flow in some circumstances. We are not aware of any cases on this point, but it may conceivably be relevant.
Hi, I’m selling my house and made noise complaints about my next door neighbour to the council. Mainly for loud music which could be heard throughout my house during lockdown. It is nowhere near as bad now since the council has contacted the neighbour and the case was closed. Does this need to be disclosed on the pif form?
There is no statutory definition of what constitutes a “dispute” with neighbours. It is a subjective question and for an example of a case where the Court was asked to consider whether or not a seller misrepresented the existence of a neighbour dispute, you might want to have a look at our Property Misrepresentation Claims in Practice article. A transcript of that case can be found on the internet.
A seller does not have to disclose anything about the property. However, this is not the same as saying on the property information form or in correspondence that there is or was no dispute in relation to the property. If “no” is answered to either of the questions in section 2 on the property information form, then this will be considered confirmation that there is or was no dispute.
We appreciate that clients want to know specifically whether or not something constitutes a neighbour dispute and whether or not such a neighbour dispute needs to be disclosed on the property information form. Sadly, because all cases are different and have to be considered on their own individual facts, there is no black and white answer to this subjective question.
We would generally advise a common sense approach to this issue. The Court has pointed out that the property information form is designed for people without legal qualifications to complete and read when deciding whether or not to purchase a property. If you would consider that a reasonable buyer would consider the facts of the matter a dispute, then the chances are it is something which should be mentioned in full or the questions not mentioned at all. However, with the latter approach, you may find that your buyer presses the point until a satisfactory answer is given. The safe option is always to explain the position in full.
Hi, I don’t know if this fits under the misinterpretation but we have just found out that the property that our seller is purchasing has tenants under AST. This puts my daughter’s school place and the job that my fiance’s was offered this week. Is this something that our solicitor should have asked the seller’s solicitor who is acting for the seller on both sale and purchase? We’re waiting to find out if the tenants have been given notice as our sellers offer for the house with the tenants was accepted in mid June and what notice period they are on.
Is there any safeguard clause we should include or negotiating point we could use to enable my fiance to start his job such as cost of week nights accommodation as the house we’re buying is 3 hours journey. I realise that COVID-19 could also delay things and my fiance cannot give up his current job and take up the offer so it’s quite a mess.
We regularly advise on aspects of landlord and tenant law in residential and commercial premises. At present, we expect to see long delays in obtaining vacant possession (i.e. a property without anyone occupying it) of properties from tenants who do not leave a property voluntarily, as a result of changes to notice periods and the way in which the Court is presently operating with respect to possession claims.
Solicitors operate in different ways and whether or not this was information that should have been asked about is open to debate. It probably is not something that would ordinarily be asked about by a buyer’s solicitor before anything else, because there is a specific question in the property information form about whether or not the seller is the occupier, which you should have been supplied with when it was received at the beginning of the transaction. Most estate agent particulars would mention something like this, as it is not in the seller’s interest not to mention it. However, there is no obligation on the buyer to volunteer this or indeed answer the question in the property information form.
If you have not yet exchanged contracts, this is something to raise with your conveyancing solicitor. Contractual clauses, including the point you suggest regarding accommodation to allow your fiancé to take up his new role are subject entirely to negotiation.
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Hi brought a new build carried out the usual checks Flood Risk came back Zone 1 low Risk no problems!!! moved in 18 months ago every time it rains the drain in the road over whelms on several occasion it has flooded my property I now discover that the front of the property is on a post development exceedance route and this will happen on a regular bases. My question is should the developer disclosed this fact to us a the point of sale?
Thank you for your comment Steve and we are sorry to hear of your difficulties.
There is no positive obligation on a seller to disclose anything in relation to a property. If a seller chooses to provide information regarding the property, the requirement is that the information provided should be accurate, or a misrepresentation claim could follow.
Therefore it is highly unlikely that there was a requirement to inform you that the property fronted onto a route where excess rainfall would flow in the event that the drainage capacity was overwhelmed.
There is also the question of reliance. For a misrepresentation claim to exist, the aggrieved party must have relied on the representation made. It sounds as though you relied on the Flood Risk report, rather than anything that the seller had said. It goes without saying a “low risk” does still mean that there is a risk. Whether or not there is any scope to consider a negligence claim in relation to the flood report will turn heavily on the terms and conditions under which that report was supplied.
A point which could be relevant, although this would require investigation and further consideration, so we raise it very hesitantly, is whether or not the developers could be said to have breached their duty of care under the Defective Premises Act 1972. This imposes a duty on those constructing properties to ensure that the work is undertaken in a professional manner using the right materials, so the property is fit for habitation when complete. We do not know the extent of the flooding issue but arguably, if it is serious to the extent that the property is not habitable, perhaps there is scope to say that improper materials were used to safeguard the property from flooding knowing that the property was situated in an area where excess water would flow in some circumstances. We are not aware of any cases on this point, but it may conceivably be relevant.
Hi, I’m selling my house and made noise complaints about my next door neighbour to the council. Mainly for loud music which could be heard throughout my house during lockdown. It is nowhere near as bad now since the council has contacted the neighbour and the case was closed. Does this need to be disclosed on the pif form?
Thank you for your comment.
There is no statutory definition of what constitutes a “dispute” with neighbours. It is a subjective question and for an example of a case where the Court was asked to consider whether or not a seller misrepresented the existence of a neighbour dispute, you might want to have a look at our Property Misrepresentation Claims in Practice article. A transcript of that case can be found on the internet.
A seller does not have to disclose anything about the property. However, this is not the same as saying on the property information form or in correspondence that there is or was no dispute in relation to the property. If “no” is answered to either of the questions in section 2 on the property information form, then this will be considered confirmation that there is or was no dispute.
We appreciate that clients want to know specifically whether or not something constitutes a neighbour dispute and whether or not such a neighbour dispute needs to be disclosed on the property information form. Sadly, because all cases are different and have to be considered on their own individual facts, there is no black and white answer to this subjective question.
We would generally advise a common sense approach to this issue. The Court has pointed out that the property information form is designed for people without legal qualifications to complete and read when deciding whether or not to purchase a property. If you would consider that a reasonable buyer would consider the facts of the matter a dispute, then the chances are it is something which should be mentioned in full or the questions not mentioned at all. However, with the latter approach, you may find that your buyer presses the point until a satisfactory answer is given. The safe option is always to explain the position in full.
Hi,
I don’t know if this fits under the misinterpretation but we have just found out that the property that our seller is purchasing has tenants under AST. This puts my daughter’s school place and the job that my fiance’s was offered this week. Is this something that our solicitor should have asked the seller’s solicitor who is acting for the seller on both sale and purchase? We’re waiting to find out if the tenants have been given notice as our sellers offer for the house with the tenants was accepted in mid June and what notice period they are on.
Is there any safeguard clause we should include or negotiating point we could use to enable my fiance to start his job such as cost of week nights accommodation as the house we’re buying is 3 hours journey. I realise that COVID-19 could also delay things and my fiance cannot give up his current job and take up the offer so it’s quite a mess.
Many thanks, Angie
Thank you for your comment.
We regularly advise on aspects of landlord and tenant law in residential and commercial premises. At present, we expect to see long delays in obtaining vacant possession (i.e. a property without anyone occupying it) of properties from tenants who do not leave a property voluntarily, as a result of changes to notice periods and the way in which the Court is presently operating with respect to possession claims.
Solicitors operate in different ways and whether or not this was information that should have been asked about is open to debate. It probably is not something that would ordinarily be asked about by a buyer’s solicitor before anything else, because there is a specific question in the property information form about whether or not the seller is the occupier, which you should have been supplied with when it was received at the beginning of the transaction. Most estate agent particulars would mention something like this, as it is not in the seller’s interest not to mention it. However, there is no obligation on the buyer to volunteer this or indeed answer the question in the property information form.
If you have not yet exchanged contracts, this is something to raise with your conveyancing solicitor. Contractual clauses, including the point you suggest regarding accommodation to allow your fiancé to take up his new role are subject entirely to negotiation.