Misrepresentation In Property Sales: the consequences of not telling the truth when selling property
Buying property is a big investment for anyone, so it’s only right that the purchaser should be satisfied with what they are buying.
Likewise, the seller should be entitled to some comfort in knowing that once their property is sold, that is the end of the matter.
The Seller’s Property Information Form
During the conveyancing process, the buyer will ask the seller questions about their property. These are called pre-contract enquiries and requisitions on title. As part of the process of selling a property, the seller will normally complete a Property Information Form. Much of the time, the form used is the Law Society’s Property Information Form, sometimes referred to as the Seller’s Property Information Form.
The idea behind this process is that the buyer satisfies themselves by asking the seller relevant questions and the seller answers them. If the seller has been as upfront as possible in response to those questions, the seller cannot normally be held liable for anything else they say.
What happens if the seller’s information is not accurate?
We see a lot of cases where a seller, sometimes unintentionally but sometimes deliberately, misleads a buyer by answering a question on the Seller’s Property Information Form or during negotiations incorrectly – or partly incorrectly so as to create a misleading impression. The buyer then purchases the property and moves in, only to discover that the information provided by the seller was inaccurate.
We have dealt with cases where a seller has:
- failed to disclose existing disputes with neighbours;
- suggested that a property does not suffer from a flooding issue when it does;
- inaccurately maintained that the property does not suffer from Japanese knotweed when it does;
- stated that the boundaries are in one place or have not moved when in fact they are not or have been changed;
- suggested that the property does not suffer from damp, when it does;
- explained something in relation to an existing tenant which is incorrect; and
- stated that there are no planning or other proposals nearby which could have an effect on the property.
… the list goes on.
In all of these cases, the buyer may very well have a claim for misrepresentation, depending on what the seller said about the position.
If you are interested to read about real cases which have been decided by the Courts, examples can be found in our article Property Misrepresentation in Practice.
Misrepresentation is a false statement of fact that induces a party into a contract causing a financial loss. It does not have to be the sole inducement, but the buyer would have to have relied upon the statement to bring a claim. Read more about reliance in misrepresentation claims here.
Depending on whether or not the seller innocently, negligently or fraudulently answered the questions inaccurately in the Property Information Form, the buyer may be entitled to claim damages from the seller. In some cases, the buyer will be entitled to ‘rescind’ the contract. This means that the buyer is entitled to their money back and to return the property to the seller. This does not happen very often and a Court will normally award only damages.
Normally the measure of damages awarded to a buyer is based on ‘diminution in value‘, or the difference between what a buyer would have paid for the property knowing about the issue, and what they actually did pay for it. This may not necessarily reflect the actual cost to the buyer in rectifying the issue. However, in some cases, additional damages can be awarded to cover other expenses incurred.
Diminution in value
To give an example of how diminution in value is calculated, we have acted for insurers in professional negligence claims against surveyors, who have failed to identify that a property suffered from subsidence. The measure of damages was based on diminution in value. The cost to the buyer in underpinning the property to stop the subsidence was greater than the actual loss suffered. This is because the property was situated in a highly sought after location with a large rental market, meaning that the impact on the value of the property was less.
Based on the fact that a hypothetical purchaser would have seen the property as an investment opportunity that could provide a return by renting it to tenants, rather than considering it a family home for life, the expert’s opinion was that a hypothetical purchaser would have been more likely to negotiate a smaller reduction in the purchase price than the full cost of the repairs, to make sure that their offer was accepted by the seller and because even with the defect, the property represented a good investment.
How can a seller ensure that their buyer will not bring a claim for misrepresentation against them?
Sadly there is no way to be 100% certain that a buyer may not make a claim later. All a seller can do is minimise the risk of this as much as possible.
Although completing the Seller’s Property Information Form is not mandatory, it is unlikely that a buyer will proceed with the purchase if their questions are not answered.
Therefore when completing the Seller’s Property Information Form, the seller should answer questions as fully and honestly as possible. We often advise clients to think about what they would want to know about the property if they were buying it, and how they would react if they bought a house with problems that were not disclosed.
If a seller is not certain about an answer to a question in the Seller’s Property Information Form, they should think carefully about whether they want to answer it.
What happens if the seller’s replies were accurate at the time they were given to the buyer, but by the time of exchange the information has changed?
In some circumstances, a seller is under a continuing obligation to ensure that their replies to enquires are accurate up to the date of exchange of contracts. Therefore if there is a change of circumstances meaning that the original statement is no longer accurate, there is every chance the seller would be obliged to update the buyer.
The Seller’s Property Information Form also specifically tells the seller that in the event that something happens which would mean that their replies are no longer accurate, they should notify their solicitor of this, who should in turn notify the buyer’s solicitor.
If they don’t do this, the seller risks a potential claim against them for misrepresentation.
What if a seller knows something which is not specifically asked about by the buyer?
Have you bought a house with problems which were not disclosed? Unfortunately, this is unlikely to give rise to a claim for misrepresentation.
The basic position here is ‘caveat emptor’, or ‘buyer beware’. If a buyer does not ask the seller a question, they cannot then look to the seller for compensation if they discover something that they do not like about the property. It is up to the buyer to satisfy themselves that they want to purchase the property and ask questions about it which are important to them.
As the basic position in a property transaction is buyer beware, it follows that if no statement or answer is given by the seller, the buyer cannot be said to have relied on it to enter into the transaction.
Having said this, sometimes (but this is unlikely unless a special or fiduciary relationship exists) a misrepresentation can take place by a failure to mention something material to the transaction.
In some cases, a “half-truth” or explanation which is accurate on the face of it but misleading about the true circumstances of the matter can also amount to a misrepresentation.
The moral of the story
Sellers should be upfront about any issues that affect the property and buyers should take all steps they consider appropriate to obtain the information that they want before committing to a purchase.
If a seller doesn’t know or is unsure of the answer to a buyer’s question, they should consider not answering the question. However, by not providing a response the seller could be putting their sale at risk, as the buyer may not be prepared to proceed without an answer.
Sometimes a seller will qualify their response, but this in itself is not always enough to prevent a claim. It is important to discuss it with your property solicitor. You can be sued
If you are interested to read about real cases which have been decided by the Courts, examples can be found in our article “Property Misrepresentation Claims in Practice”.
If you are facing a claim for property misrepresentation or believe that you have a claim yourself, please do feel free to get in touch.
This article is for information only. It is not a precise statement of the law and should not be relied upon as or for a substitution for proper legal advice.
The circumstances of every case are different. We are always happy to discuss your circumstances to see if we can assist.
Questions people ask about misrepresentation
As you can see, buying and selling property is not always as simple as you think. We’ve tried to address some common questions below, but if you are still unsure please feel free to contact us for an answer.
> What is property misrepresentation and what are property misrepresentation claims?
There is no specific definition of this but broadly this could be described as a claim which arises by reason of a misrepresentation occurring during a property transaction.
> Can I sue the seller if I bought a house with problems that were not disclosed?
A seller does not have to volunteer information about a property. If a seller stays silent on something, a representation has not been made and a claim for misrepresentation can arise.
> What compensation will I receive in a property misrepresentation claim?
Damages for all types of misrepresentation cases are intended to put the claimant in the position that they would have been in had the misrepresentation not been made.
In property misrepresentation cases, this is normally the difference between what you paid for the property and what it would have been worth, had the truth been told. This is called diminution in value.
> What should a seller disclose when selling their property?
The seller does not have to disclose anything but if they do not, then a buyer might decide not to take the risk of buying the property.
Normally a seller will fill out a property information form. For residential purchases, the Law Society published a standard property information form for this purpose, called a TA6 or a TA7.
> What if the seller lied on the property information form?
If a party to a contract deliberately misrepresented facts relating to the property with the intention of misleading the buyer, a fraudulent misrepresentation can arise. Often, such a representation does not need to be in writing.
> Do I have to declare planning applications, like a neighbour’s extension?
There is case law on this and it will normally depend on whether or not you have received a formal planning notice.
Have a look at our article Property Misrepresentation Claims in Practice for a case on this point.
Am I obliged to point out to my buyers that the front door is narrow and may have to be removed to get furniture into the flat? Thank you
A seller does not have to disclose anything in relation to a property unless they want to. The only requirement on a seller is that if they do provide information to a buyer, at the buyer’s request or otherwise, it should be accurate. Inaccurate information can give rise to allegations and claims of misrepresentation.
Good day. I put offer 140k last November in 2020 for new property to buy. Estate agency provided my own broker who helped me within one week get mortgage (application) which been approved by bank without any problems and solicitors who contacted with me immediately to start process of buying. After that time when when everything was in place I did asked broker did she informed agency on what stage we are and everything is OK?After her call to agents agent called me that property was sold to someone else who put higher offer. To day I have found on rightmove website property was sold for 140k so they lied to me. Unfortunately from agents I don’t have any document with my offer apart documents from broker with mortgage application and some emails from solicitors who wanted start my case.
Is it to possible to sue agency now having broker as witness?
Regards Karl
Thank you for your comment. It appears that you had agreed in principle to purchase a property but that sale failed when a seller instead accepted a higher offer, or so you believed. Unfortunately since from what you have said this was before the exchange of contracts it is unlikely there will be a claim open to you. This is because all these negotiations will very likely have been subject to contract and as no contract was ever entered into, there is not likely to be any binding legal relationship between the parties.
I appreciate that you consider that you have wasted time and effort in this but I am afraid this cannot form the basis of a claim.
Apologies if this is not the correct forum but I am hoping to gain some advice. I am currently experiencing a dispute with my neighbours involving a driveway. When I purchased the property last year there was nothing declared around boundaries, rights of access, parking restrictions or previous permissions being stopped under the planning act. It’s come to our attention that apparently our neighbours own the airspace relating to the road directly outside of our property which is being declare adopted highway by our local authority; however our neighbours are stating otherwise which the local authority is having to investigate. They are therefore contesting our driveway which we were granted planning permission for by our local authority as they are viewing that is their land and that they hold parking rights. I have also been issued a license to change the current dropped kerb that is outside our property but have been told by the local authority not to proceed with this until there is some resolution. How does this stand if I am prevented from using my driveway for its intended use? It sounds ludicrous that I am unable to gain access to my own property as I am technically crossing their land everyday just to walk into my own home.
Any advice would be much appreciated.
Thank you for your comments. While we are unable to give specific advice in these comments, whether or not there is a claim or legal action that you can take to enforce your right of way or to park or ensure that it is preserved will depend on what exactly the documentation states. This documentation may include Land Registry office copy entries but also previous conveyances or transfers of the land which may have affected exactly what rights each party owns over which areas of land. In addition, there may also be an implied easement permitting access which has arisen over time.
This is not something that we would definitively be able to determine without having properly inspected the relevant documentation. Please feel free to telephone our Litigation team at the Braintree office for a discussion in complete confidence, and they may be able to go through this with you more thoroughly and determine what action can be taken, what the likely prospects of success are, and what the likely costs of taking that action would be.
We purchased a house and the vendor ticked that the electrics had been checked by a qualified electrician and the documents were to follow. These have never materialised and since moving in we have found them to be unsafe. What redress if any are we due?
Thank you for your comment. It would all depend on exactly what was asked in the Property Information Form and how the seller subsequently answered it. From what you have informed me, though, the seller may say that it was true that the electrics had been checked by a qualified electrician but he never represented to you that they were safe. It would also depend on whether the contract contains any non-reliance or other clause that may affect your right to claim against the seller.
If you wish we can have a confidential discussion if you ring our litigation team at the Braintree office.
Hi,
Just before the exchange we found our that a major work is planned to be carried out in the next door neighbor (excavation for basement, demolition, etc. – roughly 1-2 years work). In the PIF form, the sellers answered no to knowing anything about work in the nearby property. After pressed by our solicitor, they claimed to forget about it despite having letters sent by the council to them a few months ago (claimed not to receive), a party wall email from their neighbors weeks before (albeit after the PIF was signed), and they did not proactively notify me when work has begun which was clearly visible to them.
Could this count as fraudulent misrepresentation and what sort of compensation am i entitled to?
Thank you for your comment.
It appears that you are referring to Question 3 in the Law Society’s standard Property Information Form (4th Edition 2020 – second revision) (the TA6). This question is headed “Notices and proposals” and asks:-
“Have any notices or correspondence been received or sent (e.g. from or to a neighbour, council or government department), or any negotiations or discussions taken place, which affect the property or a property nearby? If Yes, please give details:”
If notices or correspondence had been received by your seller which had the prospect of affecting the property or the neighbouring property and the answer given was “no” then there may be a claim for misrepresentation. It is obviously in the seller’s interest to argue that they did not receive the Council notices. It would be a matter of evidence and ultimately, who the Court believed, as to whether or not the notices were received.
As for the Party Wall Act notice, this is required when some excavations are taking place in an adjoining property. It is noted that the notice was received after the property information form was signed. Whether or not there is a duty to update a buyer is arguable. Having said this, the TA6 specifically states in the instructions to the seller:-
“If you later become aware of any information which would alter any replies you have given, you must inform your solicitor immediately. This is as important as giving the right answers in the first place. Do not change any arrangements concerning the property with anyone (such as a tenant or neighbour) without first consulting your solicitor.”
In theory, the seller should have sought advice from their solicitor and their solicitor should, subject to the terms of any retainer with their client, have advised their client on the need to update the information in the property information form so as to ensure that it was accurate.
In any event, if it can be proven that the Party Wall Act notice was received, then there may be scope for a misrepresentation claim. In some circumstances, allowing a buyer to proceed under a misapprehension that the seller knows about (in this case, that there were no works proposed by the neighbour), can give rise to an actionable misrepresentation.
As for damages, the normal measure of damages is based on diminution in value. This is the difference in price paid for the property and what a reasonable person would have paid for the property had the issue been known about. Normally some indication of this figure would be required from a valuation expert.
Your client bought a house and soon discovered that the roof leaked. The seller had not made any statement to your client about the roof, but your client believes the seller knew about the problem. Up until now, your jurisdiction has not required a seller to tell a buyer about problems like this roof, so long as the seller makes no affirmative statement about the quality of the roof. You want to argue that your jurisdiction should impose a duty on sellers to disclose significant defects of which they are aware. Write a paragraph using principle-based reasoning to argue in favor of this change in the law. You can consider principles like honesty and fairness.
Thank you for this. While your comment raises an interesting theoretical and philosophical question, this is not really something that we would as practitioners be involved with, as this type of issue is more of an academic rather than a practical legal one, and as such a writer or academic in jurisprudence may be better placed to assist you.
Hi. We recently purchased a property from Berkeley homes (new build). During the buying process, I questioned them about the parking situation on the roads (as cars were always parked there during our visits to view the property), they always assured me that they were visitor spaces, 48 max stay and not for residents. We also had to sign a property map with our solicitor, which outlined our plot, land and clearly shows the parking spaces as visitor. I was even told this would be managed by a 3rd party to enforce the policy. I moved in 3 months ago and I have complained several times to Berkeley as the cars are parked there 24/7. Basically, the neighbours use them as their second parking space. Berkeley are now refusing to enforce this policy as they don’t want to upset the neighbours who are using them as a second space. Is there a claim here? I feel there must be as everyone on the street signed a legal document stating they would not use the spaces and that they’re visitor spaces.
Thank you for your comment regarding parking rights. This doesn’t sound, from what you have posted, like a misrepresentation so much as a potential breach by the neighbouring occupants of your rights, which is also something we may be able to assist you with. However to properly determine this we would need to see what exactly the property map and titles or other deeds say. Whether the claim is against Berkeley Homes or the neighbour who is parking incorrectly will also depend on those documents, and their contents.
If you contact our Litigation team at the Braintree office we may be able to have a confidential discussion with you about this.
Moved into a new house with a septic tank in December 2020. Got someone in to empty it who was familiar with the property having emptied it over a number of years for the vendors. He has made us aware the tank has not only collapsed but will need completely replacing to meet new industry guidance introduced in 2020. He told the vendors this years ago, which they ignored. And when asked specifically by us if the tank was in good working order, the vendors told us it was absolutely fine and no issues. Even though neighbours have seen them draining the tank themselves into a nearby ditch – for years! We obviously have only just found this out.
The problem is however they have moved to India! BUT on reviewing, the searches that our conveyancer issued were actually carried out on the wrong piece of land! Not the actual property, but adjoining driveway. One of these searches was the water and drainage report. Surely there is blame here on the solicitors too?? Not only have we been blatantly deceived by the vendors, but the solicitors failed to protect us by excluding the tank in the survey. Do you think we have claim here?? Thank you
Thank you for your comment and we are sorry to hear of these circumstances.
As for a claim against the sellers, this can still be pursued but you would need permission from the Court to serve the claim out of the jurisdiction. This process would add to the cost of the claim. The practical consequence of the sellers (or more specifically any assets belonging to the sellers) being out of the jurisdiction is that enforcing any judgment might prove difficult. We are unable to advise on the law of India, so you would need to obtain legal advice on enforcement from a lawyer who is qualified in this jurisdiction.
As for a claim against your solicitors, what the solicitors were obliged to advise you of would start with a review of their retainer letter (which sets out what they were going to do). Whether or not they were under any express or implied obligation to point out issues with the septic tank will very much depend on this. Normally it would be for a buyer to instruct their surveyor to check the condition of any building or structure. A water and drainage report would also be unlikely to reveal any matters beyond stating that the property was not connected to mains sewage.
We are not sure what you mean about excluding the septic tank from the survey. It would not normally be for a solicitor to instruct a surveyor but if for some reason they took this duty upon themselves and but for their conduct in identifying the incorrect piece of land the issue would have been discovered, then there may be a professional negligence claim. However, we are hesitant to suggest this as this would be unusual.
Thank you for your reply Reference Paul Greening March 10th 2021. From what you say we may well be responsible for the roof for the following reason.
A builder bought an old Georgian house and converted it into 4 luxury apartments, when each person bought one he said that he was the freeholder and would charge us a small annual ground rent, set up a management company, and be responsible for repairs etc and painting the outside of the building which obviously we would have to contribute too through the management funds. He did not keep to his word, when the last flat was sold No4 to a young couple, who found water coming through the roof, even though he sold it through an estate agent stating that it had a brand new roof, after inspection it was found that the roof had not been repaired for at least 30 years, he then transferred the Freehold to the residents . We wrote to him and phoned him but he ignores all our letters and phone calls. The question i ask regarding your kind reply, as the freeholders now, are we responsible, or do we have some kind of redress.
Thank you for your further comment. Unfortunately we cannot give advice on this website which is specific and this is mainly because we have not considered the relevant documentation and cannot be sure that it would be accurate.
There still may be redress under the Defective Premises Act 1972, but this would be a point we would need to check against the relevant documentation and in the context of the matter generally.
Hi we bought our house 2 weeks ago. The very next day our neighbours told us that the property had been flooded by escape of water. They had left the tap on and went on holiday resulting in the flood. They had renovated the house before we bought it. We was never aware of the flood. My question is can this cause subsidence and will I be able to make a claim against them from hiding this.
Thank you for your comment.
We are not surveyors or structural engineers and can therefore not provide any input on what does or does not cause subsidence.
Having said this, having dealt with subsidence and heave cases in the past, expert reports will generally indicate that subsidence (a sinking movement) or heave (an upward movement) generally arises as a result of the water content in the soil. Excessive moisture content and desiccation are both factors which seem to cause such issues. These often are as a result of tree roots or poor construction generally.
As mentioned, we cannot provide any sort of advice, general or otherwise, as to whether or not a flood can cause subsidence and you should consult a suitably qualified structural engineer if this is something that you require clarification on.
Sir A local builder refurbished a property and then sold it off as four apartments , the estate agent stated
that the property had a new roof. This was not the case as after inspection it is approx 30 years old, the
young couple who bought the top apartment have water coming through the roof and we also understand that it is also coming down through the chimney which has not been capped. We have tried to contact the seller who ignores our letters and phone calls, and the estate agent will not admit liability but sent us a letter saying that we could write to him under the In House Complaints Procedure, What!! should we do.
Thank you for your comment.
We are unsure whether or not there could be any misrepresentation claim here on the basis of what an estate agent has said. It is possible, but Standard Condition 3.2 of the Standard Conditions of sale which are almost always incorporated into a contract for the sale of a property specifies that the buyer accepts the property in the condition and physical state that it is in as at the date of the contract (i.e. exchange of contracts).
It may be the case that there is a claim under Section 1(1) of the Defective Premises Act 1972. This specifies that a person taking on work for or in connection with the provision of a dwelling (and this can be by the conversion or enlargement of a building, as appears to have happened in this matter), the person undertaking that work has a duty to every person that acquires an interest in the property to ensure that the work is undertaken in a workmanlike and professional manner. As there are now 4 apartments in this particular building, it is likely to involve a leasehold title. Such a claim may therefore vest in the freeholder depending on who is responsible for the roof.
We recently purchased a house and moved in to find they must had removed a fitted wardrobe at an earlier date. This was hidden behind the wardrobe they took with them and there were hanging unsafe electrics (in boxes only suitable for being inset behind plaster) missing plaster on the wall and missing carpet. They are now saying it was like this when they bought the property.
We had enquired via solicitors whether there was a hardwiring Ethernet cable to the external home office. They had confirmed this but we arrived to find there was just a BT point and all the electrics are damaged from water ingress as a result of poor external wiring allowing water to drain down the wires.
They left rubbish at the property including a mouldy 6ft bean bag, broken 8ft basketball net and other rubbish at the property – they have acknowledged as an ‘oversight’?!
There were other repairs – leaking radiator, Hob ignition and insinkerator broken. They have said this was the case when they purchased.
They have refused to give passwords for the CCTV, now claiming they have never used it, despite the seller verbally confirming she had it on her phone and giving us her builders details to get the password.
Do you think we have a case to pursue in court?
Thanks
Thank you for your comment.
The Standard Conditions of Sale, which are almost invariably incorporated into the sale of residential property, specify at clause 3.2 that the buyer accepts the property in the physical state that it is in as at the date of the contract (i.e. exchange).
Unless the seller says something specific which is misleading, there is generally no claim. It is down to the buyer to undertake whatever enquiries they wish to satisfy themselves before committing to the purchase. The seller is under no obligation to respond to these enquiries and in such circumstances it would be up to the buyer to decide whether or not to take the risk.
Thanks for your advice. Looking at the Fixtures and Fittings forms they said the wardrobe in the bedroom was included but then sold it before the exchange.
They are claiming that the damaged wall and dangerous electrics which were found on completion day had been like this for years (they removed a fitted wardrobe and didn’t make good) so they were only uncovered when their large wardrobe was removed by them on departure.
They are also claiming they had the electrics to the home office checked before the sale and they were fine at the time. They have been ripped out of the cable tidies and water has travelled into the electric sockets.
It was really painful to get any paperwork during the sale so we understand why now.
I assume we can claim for clearing the property of their items which they have accepted they left behind as an ‘oversight’!
Thanks
Thank you for your further comment. We cannot really provide specific advice on our website.
Broadly, however, if certain items were said to be included in the sale and you paid for these, then there is a potential breach of contract claim.
As for the cost of removing items and rubbish, normally there would be a representation in the form of an answer to the property information form that the property would be left in a clean and tidy state. If this was not the case, then there may be a claim for misrepresentation here. Likewise, there is also a question that the seller is asked in the property information form as to whether or not they will take care in removing any fixtures or fittings not included in the sale.
Whether or not there is anything to be done about the electrics is going to be highly fact-specific, which again is one of the reasons why we cannot provide anything more than general guidance on our website which should not be considered a substitute for properly considered legal advice.
The standard conditions of sale would normally include a special condition as follows “Representations – Neither party can rely on any representation made by the other, unless made in writing by the other or his conveyancer, but this does not exclude liability for fraud or recklessness.”
A misrepresentation can be innocent (i.e. the seller believed what they were saying), reckless (i.e. a seller didn’t care or check before making the representation) or fraudulent (i.e. the seller knew that what was being said was untrue). The burden of proof on a claimant in relation to a claim for reckless and fraudulent misrepresentation can be considered higher and therefore harder to prove, as it involves establishing a state of mind when the representation was made. We mention this because if you were expressly told that the electrics had been checked and they were fine. If it can demonstrably be shown that this representation was reckless or fraudulent, there may be a claim for reckless or fraudulent misrepresentation, even if the statement was not made in writing, which the above special condition would normally exclude from being actionable.
If you would like to consider the matter further, please do feel free to get in touch.
I am in the process of selling my home which backs on to open fields owned by a local farmer. He has sold the rights to a section of land in the distance to a small developer and that development is under way. I think that at some point in the future he may expand this scheme to encompass the area directly behind my home. There is nothing in the searches or anything official on line. Do I have to include this in my TA5?
Thank you for your comment.
We think you mean the TA6 or seller’s property information form.
As to what to include in this, we cannot specifically tell you or provide legal advice on this website. What we can do is provide broad and general guidance which should not be considered a substitution for bespoke and considered legal advice. We would suggest that any seller read the questions in the property information form very carefully and provide truthful answers which they can verify. Problems in these matters arise when things which are said are misleading or a seller speculates on a position. If a seller does not know the answer to something, it is normally best not to answer at all.
The safest option to avoid issues in the future is to explain whatever circumstances there are in full. There can be no misrepresentation if what has been said is factually accurate. Likewise there can be no misrepresentation if nothing is said about the position and the buyer is asked to rely on their own enquiries. It is a rare case where a seller says nothing about something and is held liable for misrepresentation. These circumstances normally arise when inaccurate information is given or the seller deliberately allows the buyer to proceed under a misapprehension about something.
When I bought my terraced house 12 years ago both fences in the back garden needed replacing. We replaced the fence on the right hand side of the garden as the TA6 form stated it was ours and the neighbour to the right also believed it was our responsibility.
We approached the elderly neighbour on our left hand side about replacing his fence, which he agreed to, and our fencer replaced both fences at the same time. The elderly neighbour passed away and the house was sold to new owners who took responsibility for the fence between their house and ours. These owners lived on a military base and bought the property to rent out. We did contact the owner when a section of their fence was damaged in a storm, and they promptly came to their property and mended the fence.
The house was sold to my current neighbour 3 years ago and shortly after she moved in, a different section of the fence between her house and mine fell down. There was no attempt to repair the fence and when I asked if she had any plans to do so, she said the fence was mine! This is because on the TA6 sellers questionnaire, the previous owner incorrectly ticked the boxes to state the fence between her property and mine was my responsibility. I have explained that I lived here when the fence between us was erected, that I paid for my fence on the right and the previous neighbour paid for the fence between her and I. I am still in touch with the fencer and he has also confirmed that he was paid by the old owner for erecting the fence in question. I have also shown her the stumps of the old metal posts that marked the original boundary line between our properties. You can clearly see that the fence has been put up on her side of that boundary post. She still refuses to acknowledge that the fence is hers.
Finally, I have managed to contact the previous owner and she has provided me with a detailed email confirming that the fence was their responsibility as far as she was concerned, that they maintained it while they owned the house and that she must have unknowingly ticked the incorrect boxes on the TA6 sellers questionnaire. Where do I go from here? I have just paid for my fence on the right to be repaired and have no spare funds to replace the fence that has never been my responsibility. The fact that I was here when both fences went up , know who paid for what and have an email from the previous owner confirming her mistake and that the fence belonged to her, seems to count for nothing.
Where do I go from here? I don’t want to take on shared ownership with her as I have already repaired my fence and have no money left. Its clearly on her side of the boundary!!
Thank you
Thank you for your comment.
We cannot provide any specific advice on this website. Broadly, in this particular matter, the deeds to the property will set out the position with respect to the responsibility for any fences.
There is no legal requirement on any landowner to fence off their land. If the deeds are silent on whether or not there is an obligation for the parties to erect or maintain a fence, then the default position is that there is no obligation on them to do so. Even if the deeds do say something, there might be other considerations on the basis that sometimes positive covenants (this is a requirement for a landowner to do something) might not transfer with the land when it is sold.
Any agreement between the parties historically will likely be personal to the parties themselves and not binding on future owners. Unless something has been registered at the Land Registry, this would likely be the case.
As for any claim for misrepresentation, it is possible that what has been said to you is a statement of law. A statement of law is not generally actionable, although there are some rare exceptions.
My partner and I just purchased our first home. One of the biggest factors for us was to be able to have an open plan area downstairs. We have enquired the estate agents about the type of wall between the kitchen and living room and they came back to us saying the sellers confirmed it is not load bearing. We proceeded with the purchase and on our 1st day at the new house we wanted to knock that wall down to allow for other renovations. We were quite surprised as we found blockwork under plasterboards. We decided not to touch it and get a structural engineer to come in and check it. Turns out it is in fact load bearing. We’d like to proceed with removing of the wall (was a huge deal for us as mentioned earlier) but the fact the wall is load bearing carries an additional significant cost which we were not expecting.
Do we have any grounds to hold the sellers liable for the misrepresentation in this case?
Thank you in advance.
Thank you for your comment.
This may give rise to a claim for misrepresentation. Whilst it would not ordinarily be within the remit of anyone but a buyer to check the structural condition of the property via their own surveyor, if the sellers have taken it upon themselves to confirm that it is not a load bearing wall, there may be a potential misrepresentation.
However we would envisage that there may be issues as to whether or not it was reasonable to rely on such misrepresentations, bearing in mind that the seller was probably not a surveyor or structural engineer. The Court may consider that this was merely an opinion and a statement of opinion as opposed to a statement of fact is not generally actionable in law.
There may also be an issue as to any damages recoverable. Normally damages for this sort of claim would be based on what is called “diminution in value”. This is the difference between the value of the property as purchased and the value of the property that a reasonable person would pay knowing about the issue. It may be the case that whilst your specific requirements in relation to the property would have had an impact on what you would pay for it, for a hypothetical average buyer it may not.
Normally if something is very important and would make the difference between proceeding or not, it would be best practice to negotiate a contractual clause between the seller and the buyer.
Hi we recently bought a property where the previous owner built a summer cabin on an access pathway we are end of terrace. We were poorly advised by our conveyancing firm. The neighbour is now taking court action against us to move the cabin and reinstate the access path, said neighbour has confirmed in writing via a solicitor that he had raised the issue with the previous owners. The previous owners stated on the buyers information pack that there was no issue with the access pathway with the neighbours, a blatant lie. Do we have a case against the people we bought the house off?
Thank you for your comment.
You may have a claim for professional negligence against your solicitors, but much will turn on the scope of their retainer (i.e., what they said they were going to do and advise you on and what they actually did). What they actually said about the rights of way will be very important.
As for a claim based on misrepresentation against the seller, if you were expressly told there were no issues and there were, there may very well be a claim.
Hi – i have just moved into a property with a septic tank. The lady selling told us she had had the new tank installed 10 or 12 years earler and that it was a really enormous one. She couldn’t give it’s any documentation of the tank when we asked – she says she couldn’t find it but stressed the tank was absolutely enormous, and bigger than needed for a 5 bed home. We moved in and first thing we did was have the tank emptied and drained. Not only is it not draining – the drainage consultants commented on our being the smallest tank they had ever seen – that it’s absolutely a tiny and needs replaced completely. This will cost thousands. Do we have any chance of contesting this with or seller? As she didn’t give us the documents pertaining to the tank can we object? She made such a deal about how great the tank was it was one of the first things the estate agents mentioned when we viewed.
Thank you for your comment. Ordinarily things said orally would not be actionable. The reason for this is the standard conditions of sale, which are normally incorporated into the sale of residential property, would exclude them.
Having said this, there is normally a clause which states that fraudulent or reckless misrepresentations are actionable, whether made orally or in writing. Whilst it would be necessary to review the position in full before offering any advice, from what you have written, there may be some scope here to argue that there is a fraudulent or reckless misrepresentation on the basis that it was specifically said to you that the septic tank was suitable for the property and that transpires to be untrue.
If you would like to consider the matter in more detail, please do feel free to get in touch.
Hi – thank you so much for the info in this article. We have recently purchased a property and during the surveyor/conveyancing process we asked many times about the condition of the boiler. The seller did say that it was just out of its warranty period but that it ‘was working great’ – after our survey report came back he again verbally informed us that there was nothing to worry about. In the report, no specific mention was made of this particular problem below.
We have just discovered that he had applied cellotape to a broken pipe under the boiler, where water has been leaking out since we moved in. We have just had a plumber informing us that doing this was very dangerous due to it being right next to the boiler. It’s taken us one month to discover this issue but god knows what could have happened if we hadn’t found it ourselves.
The cost to fix the pipe is around £450 – is it possible that I would have a case here, and if so should I give the seller the option to make right before doing anything?
Thank you for your comment. The standard conditions of sale generally incorporated into a contract to sell residential property specify that oral representations are not actionable. However, normally there is also a clause to say fraudulent or reckless misrepresentations are excluded from this.
The effect is that if fraud can be proved, the fact that a representation was made orally as opposed to in writing can be actionable. In this matter it does appear that the seller had known that tape had been applied to the boiler and it may very well be the case that a fraudulent misrepresentation has occurred.
Hi,
I completed on a shared ownership flat on 30/jan/2019. At the end of that year I was notified by the housing association that there was an outstanding service charges arrears from 16/17. Immediately contacted by solicitor who shared the enquiries statement showing the statement of account from the housing association without the charge. The housing association explained it as an ‘admin error’. They are now threatening legal action against my non payment. There is no retainer for this issue as it was not disclosed as outstanding charges. Almost two years on and they’re still demanding I pay for this error which I think is their negligence and I’m now being forced to pay for. Please help.
We cannot comment in any detail in relation to the issue between you and the landlord, as much would depend on what the service charges related to. Broadly speaking however, if there is an error on the part of the landlord, the First Tier Property Tribunal would generally absolve the landlord of some degree of liability and allow them to recover their service charges from the existing tenant. The reason for this is that as a matter of public policy, buildings with communal areas and the like do need to be managed and do need to be maintained. If a landlord was always unable to recover their service charges, it would lead to a situation where the landlord may go bust or otherwise not manage the property.
There may be a claim against the seller on the basis of unjust enrichment as during their period of ownership their service charges were accrued. There is a possible misrepresentation issue here, as an innocent misrepresentation, ie one in which the seller genuinely believed to be the case, might still have arisen.
Hi, I bought a house a couple weeks ago and I specially asked if noise such as talking, music, tv could be heard through the walls (from issues when I was in shared houses). The vendors advised that “I can confirm that I cannot hear a tv/radio/talking/music through the walls of the property”. However, having moved in I hear the neighbours children shouting and talking/tv. When I asked the question of the vendor, I referred to it as a “show stopper” question. Is there any potential come back as I would not have bought the house if I had known I would be hearing this all day long as I am very sensitive to noise? The vendors responses were confirmed in writing via the solicitors albeit I appreciate upon hindsight, the answer has been carefully worded to make it subjective.
Thank you for your comment and we are sorry to hear of the situation.
We are hesitant to say that there is a misrepresentation claim here. You are correct to identify that the response given to you was quite subjective. A statement of opinion, (ie that the seller could not hear anything) is not ordinarily actionable. Normally for a misrepresentation to occur it must be a statement of fact.
Much will turn on how the question was asked and how the response was given in the context of the matter as a whole.
Hi I bought a house as a 3 bed but have been informed that the 3 rd bedroom can not be classed as a bedroom have I been Miss sold
Thank you for your comment.
We are sorry to say that we cannot really provide any input on this, as insufficient information has been provided. We are unsure of why a bedroom could not be classed as a bedroom, or why the current or proposed use of a room in a property is relevant to the transaction in any way. Sometimes building regulations approval might not have been obtained in respect of a loft conversation intending to be a bedroom, but this doesn’t stop the seller using it as such, it just means that they are in breach of regulations, which is something that should be picked up on searches.
We would hesitantly say that you contracted to purchase a particular property and probably viewed it. Therefore, semantic arguments relating to particular rooms and whether or not one in particular can be classed as a bedroom are probably not overly relevant. It would be for the prospective purchaser to decide whether or not the property was suitable for their needs.
Hi mark thanks for the reply the bedroom is a attic conversion I have had to submit plans for another project on house and building control have told me that the attic cannot be classed as a bedroom when if we sell the house will we be able to class as a bedroom
Thank you for your further comment.
Whether or not this is a misrepresentation will depend on a number of factors. One of the important points is whether or not it was implicit or reasonable to assume in the response given to you included confirmation that any legal obligations incumbent on the seller to use the property in the way it was described to you had been complied with. We are not certain, based on case law, that this would be an actionable misrepresentation. The reason for this is that the property information form is designed to be answered and understood by a lay person who would not ordinarily have a legal background.
Whether or not there is any basis for a professional negligence claim is another matter. A lack of building control certification might be something that your solicitors should have identified.
We recently brought a property and moved in only to find a problem with silverfish … the previous owner is denying all knowledge but the neighbours also have them. Should she have mentioned this and can I claim against her ..
Thank you for your comment, Amanda,
Unless something specific was said about the issue, it is unlikely that there is a claim here. A purchaser must show that they have relied on a statement made by the seller which was untrue. If no such statement was made, there can be no reliance by the buyer and no claim for misrepresentation. The standard conditions of sale which are normally incorporated into the contract of sale expressly provide that the buyer takes the property in the condition that it is in. It is therefore up to the buyer to ask such questions as they might want the answers to before committing to the purchase. Questions about pest infestations do not appear on the standard property information form but perhaps additional enquiries were raised by your solicitor which dealt with the issue. The response to any of these enquiries would be important to consider.
I recently bought a property with a basement. The seller informed me that the basement had previously been used as a gym and confirmed that there was no previous flooding to any part of the property or land on the property information form. Since moving in the basement has repeatedly flooded with any significant rainfall, up to 2-3 inches deep at times, with the water entering from a crack around what I now think is a floating basement floor. This was not picked up by the surveyor or on the flooding searches. Can I do anything about this?
Thank you for your comment.
If you have been expressly told in writing that there was no previous flooding of any part of the property but this is untrue and you relied on this statement when entering into the contract, then there may be a claim for misrepresentation. It appears to us that the starting point would likely be the need to obtain evidence that flooding during the previous owner’s period of occupation had occurred. It would be a potential defence to the claim for the previous owners to say that what they stated was true. As a potential claimant, it would be for you to prove that what was said was factually inaccurate. If that evidence is not readily available from other sources, it may be the case that an expert surveyor needs to be appointed to confirm whether or not previous flooding had occurred or might likely have occurred.
As for any claim against the surveyor, much will depend on the terms of the retainer that you agreed with your surveyor. This would be a professional negligence matter and the starting point in determining whether or not there is any liability in this respect are the surveyor’s terms and conditions. Whether or not the surveyor should have identified the issue will depend on the factual circumstances and whether or not a reasonably competent surveyor would have identified the problem.
In short, the answer to your question is that yes, there is quite possibly a claim against both the seller and the surveyor, but this is subject to evidence being available which may or may not also include the need to obtain expert input.
We would be more than happy to look into the matter for you if you would like to get in touch.
Hello, I purchased a house in October 2020, prior to buying the house I specifically asked the seller if there was or had been any problems with damp, the reply email was that the seller had no knowledge of damp, and no work had been done for damp. I knew the next door neighbour had been having problems so I had a damp inspector go into the property to do a report and he noted small amounts of damp and gave me a quote to fix it. I went back to the seller and they agreed to pay half of the costs. Upon collecting the keys and entering the property, the damp was a whole lot worse than originally noted. Upon speaking to the neighbour I’ve been informed that the walls have been ‘tanked’ twice by the seller as it wasn’t sorted the first time, and now, I’m left with a huge damp problem. The seller of the house had also paid half to have some work on the chimney with the neighbour prior to the house going on the market due to the damp issue affecting the neighbour. My most recent quote being £2500 as opposed to the £660 from the original damp inspector. Would this be classed as a misrepresentation case or would it be not due to half of the original repair costs being offered.
Thank you
Thank you for your comment.
Put as simply as possible, you have likely been told something which is factually untrue and you relied on this when entering into the contract. In such cases a claim for misrepresentation may very well exist.
From what you have written, it does appear that there is the possibility of a claim, irrespective of the fact that a damp inspector went into the property to look at it. If the damp inspector has not identified the problem properly, you may also have a concurrent negligence claim.
If you would like to consider the matter further, please do feel free to get in touch.
My husband and I bought a bungalow in 2018. The property next door has partial use as a children’s nursery, however after moving in we realised they do not follow any planning conditions imposed on them w.r.t garden use etc.
We have also now found out that our seller had actively written to the council objecting the nursery’s planning applications and making planning violation complaints etc. The sellers lied on the SPIF and ticked ‘No’ to all the neighbour dispute questions, including the question about writing to the council about the property.
Since we have moved in we have faced several problems and bullying from the nursery owners who wanted to acquire our property. We have lived through a campaign of abuse and harassment and have had to get solicitors to write to them.
We are now fed up of being prisoners in our own home and had we known about these issues we would have obviously never purchased this property. Do we have any recourse?
Many thanks for reading!
The question of whether or not there is an existing dispute between a seller and their neighbours is a fairly subjective question. For an indication of how the Courts approach this question, McMeekin v Long [2003] is a good example and worth a read. We refer to it here.
In short, if there was a dispute with a neighbour but you were told in the property information form that there was not, then you may have a claim for misrepresentation.
We purchased a house in Sept 2020, the house has 6.8acres. There is a development site being built on the land to the east of the property – which we were aware of as it was already considerably underway at the time. The path leading up to a freestanding stable block bends slightly around towards this site, it like dog-legs off. It is all fenced off with fencing that has been there for some time however the developers are saying that this corner belongs to them. We are having a topo done to comfirm but the sellers sent us land plans over showing that that section of land was ours. We have also since found out and have proof of letters sent to the previous owners that they were informed of this by the developers. They did not disclose anything during the number of visits we had to the property and lied about the areas of land which belonged to the property. As mentioned, there is a free standing stable block on the land, we live in a conservation area so this should have had planning permission for – we have since found out that there was no permission for it. As we moved in the range cooker that they had left did not work – after being specifically asked if worked during one of our visits. There are many other small things also. We are wondering if we have a case against the previous owners in terms of the land being mis-sold? Also what would we gain from this – do they have to pay compensation?
Thank you for your comment.
If there was an error in a plan or document, meaning that what you purchased did not reflect what was agreed, then potentially compensation is available pursuant to the contract of sale. If you were actively led to believe that what you were purchasing differed from what you did purchase, there may be a claim for misrepresentation.
Whether or not you wished to take such action is entirely your choice but what you would be awarded if your claim was successful would be damages to reflect the financial loss you had suffered.
We offered on a property that was near a river. The Property Information Form was ticked ‘no’ to all questions asking if insurance (particularly in relation to flooding) had been refused, subject to high premiums etc. In addition under the relevant sections they stated that no third party had any access or rights of way and that there were no wires etc that crossed the property. In essence the answer was ‘no’ to all such questions. In addition the property had a holiday let within the grounds with a declared income of £25-30,000 pa. We proceeded through the conveyancing process as a result, incurring all the usual costs. 2 months through the process the vendors solicitor mentioned a substation within the grounds that had not previously been declared. We asked the vendor for details and they stated that it was a small box that they did not feel relevant, and that we would have to negotiate with the electricity company about access as there were no agreements. In addition a copy of their insurance policy (as requested by our solicitor) showed that they were excluded from flooding/flood damage and they have been unable to provide any verified documentation showing the holiday let income – just their own spreadsheets showing the income, which averages out at £21,000 a year gross, not the level stated. We contacted the utility company who confirmed the substation is an 11,000kw substation supplying the whole area and as such is a critical supply for which they need unrestricted 24 hour access. They stated there was an Easement in place which detailed the access of routes of access through the garden etc but were unable to provide it as we were not the householders. They confirmed the householders would have a copy of the Easement and could get a copy if required. We have now gone back to the vendors that we would not have offered the amount we did if we knew about the flood insurance exclusions or the substation and rights of access through the garden and said that were were happy to proceed but did need details of the Easement and would like a price reduction to reflect the future saleability and lack of being able to secure the garden with gated access and use the area in question. The agent has come back to confirm that the vendor feels that neither the insurance restrictions or substation should have any affect on the value or saleability of the house and so are withdrawing from our sale and have been instructed to remarket it.
The question to you, and I apologise this has been longwinded, is that we only committed to the various costs of conveyancing on the basis of the answers given in the Property Information form. If any of the questions on the form had been answered truthfully we would have withdrawn. These answers are now shown to be incorrect and they wilfully answered them untruthfully. Can we now claim for the costs incurred such as solicitors fees, searches, mortgage application as they would not have been incurred if we had not been mislead?
Thank you for your comment.
We are afraid that it is unlikely that you would have any success in recovering your pre-contract expenditure. Until contracts are exchanged, there is no legally binding agreement between the parties to breach.
I entered an auction contract under a negligent/fraudulent statement. I have paid a 10% deposit.
The auctioneer did not disclose that the property is a unconventional construction.
It is now reported that the property is constructed unconventionally (Hawksley P.R.C).
Please let me know whether it is possible to claim mispresentation in this case.
Thank you for your comment.
It would not ordinarily be down to a seller to provide any information about a property, including whether or not it is of an unconventional construction. It would normally be for a buyer to take steps to satisfy themselves before bidding and/or accept the risk in proceeding in the absence of such information.
For a misrepresentation case to exist the seller must have actively mislead the buyer. It would be a very rare case that this would occur where there has been no specific representation made. In this matter, the representation would need to be to suggest expressly, or be sufficiently misleading that that the implication, was that the property was of a standard construction. In the absence of this, there is unlikely to be a claim for misrepresentation.
If you would like us to look into the position in more detail for you, please feel free to get in touch.
My partner and I recently bought a house with a rear extension which had been built without planning or building control over a decade ago. This was declared and indemnity insurance had been bought by the seller. What wasn’t picked up by the surveyor or us was that the extension had started to subside. The seller had covered small cracks with filler and repainted. Was is this fraudulent and could we make a claim.
There is no obligation on a seller to provide any information about a property. It is down to a buyer’s surveyor to identify structural problems.
However, if the seller was aware of the subsidence but expressly suggested that this was not occurring, then this would likely be a misrepresentation. It would be necessary to identify a false statement of fact relating to the point before a claim for misrepresentation would arise. Normally, representations are made in writing during the course of the transaction and in response to enquiries made by the seller.
It is more likely that you have a professional negligence claim against your surveyor. However, this would depend on the scope of their instructions. This is what they said they were going to do and the limitations on this contained in their terms and conditions.
You should certainly contact your buildings insurer about the position. However, if you would like to explore the position in more detail, do get in touch.
Had an offer accepted on a property and it is going through now with the vendors. Just waiting on the home buyers to be done in a couple of weeks via Natwest. Standard valuation was fine.
A large well known estate agency has the floor plan as 265.7 sq m. I checked the epc and it is down as 177 sq metres. Having liaised with the helpful gentleman who did the epc, he said whilst he has a margin of error of 15%, the house is definitely not that size and it is wrong by a fair bit.
How does this stand? Of course the estate agents were pushy and talking about how much house there is for the money ….this is actually on their house advert too. But of course now it is significantly less
Thank you for this comment, and please accept our apologies for the delay in responding.
The question here is that while the statement was that the property’s floor area was 265.7 square metres does appear to be false, can you rely upon it, and also was it a merely innocent or negligent misrepresentation as opposed to an intentional, fraudulent, or reckless one. This is because often there are non-reliance clauses in the contract which the parties agree to exclude liability for innocent or negligent misrepresentations, as well as declare that they have only relied on things that are explicitly stated in the contract. However if the contract can be argued to incorporate the documentation from the estate agent then that may be sufficient to get around this, and if we can show that the seller and/or their agent deliberately entered into a course of conduct to paint a false picture, then this may be actionable as well.
If you wish to discuss this with us in more detail, please feel free to contact our Litigation team at the Braintree office.
Hi, we recently bought a property where on the TA6 form the seller declared that the boiler was installed in 2015 and then serviced in 2019 but she had no paperwork to support either statement.
We have been living there 6-7 weeks and the boiler has now failed and left us without heating. On inspection from a heating engineer, significant damage was found to the inside of a boiler and they believe that there “is no way it was last serviced in 2019” due to the extent of the rust and damage present. They also stated that the boiler is from 2011 (due to the serial numbers present).
Their view is that the boiler will need a complete replacement, which will leave us severely out of pocket.
Given this it seems very unlikely that the info provided by the seller on the TA6 form was true (especially with no paperwork to back it up) – do we have a case to claim against/sue the seller for providing misleading info to us when we bought the house, as we relied on the form to provide us with accurate information?
Thank you for your comment.
A misrepresentation occurs when a factually inaccurate statement is made which induces the other party into a contract causing a loss. From what you have stated, it does appear that the information provided in the property information form was factually inaccurate. There is likely scope to argue that you relied on statement that the service in 2019 left the boiler in reasonable working order and that it was 4 years newer than it actually is.
Having said this, there is a risk that perhaps the sellers did make factually accurate statements, insofar as perhaps the serial number is old, but it was installed when stated. Likewise, they may have had a service undertaken by the person undertaking the service was negligent in not spotting that damage your recent engineer has identified.
We would tentatively suggest that there may be a claim here but much will turn on proving that the statements made which induced you into the contract were inaccurate. For this, an expert’s report saying why it is impossible for the boiler to have been serviced would be required.
Thank you