416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
What would be the position where a buyer buys a property at auction having not viewed it and on the basis of photographs in sale particulars, only to find out after completion that the agents had (knowingly) included in the particulars rather old photographs of the property showing it in good condition whereas the property was in fact in terrible condition due to abuse by the most recent tenants?
Thank you for your comment. A great deal will turn on the auction terms and conditions. These will no doubt take steps to exclude any possible reliance on any representations made in the auction pack and they would probably be effective in doing so. Having said this, if a fraudulent or reckless misrepresentation can be established, this may get around the issue on the basis that fraud cannot generally be excluded from contracts.
Arguably, the photographs could amount to representations regarding the condition of the property. If they did not accurately reflect the current condition of the property, why include them? However, we are not aware of any specific cases on this point. In the case of Atlantic Estates Ltd v Ezekiel [1991], which refer to in our Property Misrepresentation Claims in Practice which can be found here, photographs of the auctioned property showed it being used as a wine bar when in fact the licence for it was no longer valid. This was found to be a misrepresentation. Whilst not on all fours with your matter, it does provide authority for the suggestion that photographs can amount to representations.
However, you would need to find evidence of the condition of the property at the time the auction catalogue was released, as otherwise you may find yourself faced with the argument that the seller was unaware of the condition.
Hello, we purchased a property but are having issues with our neighbour. Screaming, shouting, throwing things etc. We have been told by the care company that this should have been disclosed. We rang our solicitor and checked the files and it wasn’t disclosed within Section 2 of the Property Form. Can we still move forward with this as a misrepresentation, even if the sellers deny knowing about the issue?
If there was a complaint or dispute which the seller was aware of and they expressly stated that this was not the case before you entered into the contract, then there could be a claim for misrepresentation.
However, as with may matters, it is often about “proof, not truth” by which we mean any potential claimant can proceed with their claim but if they do not have sufficient evidence to prove it, they are unlikely to win. Sometimes, if that evidence is lacking but there is a good potential claim, an application for pre-action disclosure can be made. Whilst the rules in relation to such applications are complicated, this would potentially oblige the other side to disclose documentation which supported your claim. However, it is still necessary to show that there is a reasonable prospect of a claim as a part of that application and that the evidence required is merely conclusive of this and would help resolve the matter. Speculative applications are not allowed.
In any civil claim, which a property misrepresentation claim would be, the burden of proof is on the claimant to prove “on the balance of probabilities” that the allegations made are true. This can very broadly be said to me a more than a 50% chance that what the claimant is saying is right. If there is a 50/50 chance that the seller or defendant is right, then this burden of proof is not discharged. This issue arises most often when there is a lack of documentary evidence and the position turns on witness evidence alone.
We own the freehold to a building which is split into two apartments – ours and the one below us. The lease says no pets but, as we own a dog, we felt this was archaic and had no objection to the residents below us getting one too. We have just exchanged on a sale. The purchaser and the solicitor obviously had full access to the lease but have never asked if there are any dogs / pets in the apartment below. Can there be any comeback from the purchaser or us it a case of ‘buyer beware and they should have asked if it was something that would bother them?
Thank you for your query. We think it is unlikely that there would be a claim for misrepresentation against you.
Whilst the pre-contract enquiries (normally a LPE1) will ask whether or not there were any breaches of the terms of the lease, which there would have been if a pet was kept without consent, clearly you as the freeholder gave that consent, which by law could probably not be unreasonably withheld in any event.
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What would be the position where a buyer buys a property at auction having not viewed it and on the basis of photographs in sale particulars, only to find out after completion that the agents had (knowingly) included in the particulars rather old photographs of the property showing it in good condition whereas the property was in fact in terrible condition due to abuse by the most recent tenants?
Thank you for your comment. A great deal will turn on the auction terms and conditions. These will no doubt take steps to exclude any possible reliance on any representations made in the auction pack and they would probably be effective in doing so. Having said this, if a fraudulent or reckless misrepresentation can be established, this may get around the issue on the basis that fraud cannot generally be excluded from contracts.
Arguably, the photographs could amount to representations regarding the condition of the property. If they did not accurately reflect the current condition of the property, why include them? However, we are not aware of any specific cases on this point. In the case of Atlantic Estates Ltd v Ezekiel [1991], which refer to in our Property Misrepresentation Claims in Practice which can be found here, photographs of the auctioned property showed it being used as a wine bar when in fact the licence for it was no longer valid. This was found to be a misrepresentation. Whilst not on all fours with your matter, it does provide authority for the suggestion that photographs can amount to representations.
However, you would need to find evidence of the condition of the property at the time the auction catalogue was released, as otherwise you may find yourself faced with the argument that the seller was unaware of the condition.
Hello, we purchased a property but are having issues with our neighbour. Screaming, shouting, throwing things etc. We have been told by the care company that this should have been disclosed. We rang our solicitor and checked the files and it wasn’t disclosed within Section 2 of the Property Form. Can we still move forward with this as a misrepresentation, even if the sellers deny knowing about the issue?
Thank you for your comment.
If there was a complaint or dispute which the seller was aware of and they expressly stated that this was not the case before you entered into the contract, then there could be a claim for misrepresentation.
However, as with may matters, it is often about “proof, not truth” by which we mean any potential claimant can proceed with their claim but if they do not have sufficient evidence to prove it, they are unlikely to win. Sometimes, if that evidence is lacking but there is a good potential claim, an application for pre-action disclosure can be made. Whilst the rules in relation to such applications are complicated, this would potentially oblige the other side to disclose documentation which supported your claim. However, it is still necessary to show that there is a reasonable prospect of a claim as a part of that application and that the evidence required is merely conclusive of this and would help resolve the matter. Speculative applications are not allowed.
In any civil claim, which a property misrepresentation claim would be, the burden of proof is on the claimant to prove “on the balance of probabilities” that the allegations made are true. This can very broadly be said to me a more than a 50% chance that what the claimant is saying is right. If there is a 50/50 chance that the seller or defendant is right, then this burden of proof is not discharged. This issue arises most often when there is a lack of documentary evidence and the position turns on witness evidence alone.
We own the freehold to a building which is split into two apartments – ours and the one below us. The lease says no pets but, as we own a dog, we felt this was archaic and had no objection to the residents below us getting one too.
We have just exchanged on a sale. The purchaser and the solicitor obviously had full access to the lease but have never asked if there are any dogs / pets in the apartment below. Can there be any comeback from the purchaser or us it a case of ‘buyer beware and they should have asked if it was something that would bother them?
Thank you for your query. We think it is unlikely that there would be a claim for misrepresentation against you.
Whilst the pre-contract enquiries (normally a LPE1) will ask whether or not there were any breaches of the terms of the lease, which there would have been if a pet was kept without consent, clearly you as the freeholder gave that consent, which by law could probably not be unreasonably withheld in any event.