416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
Hi
I bought a property in Aug of last year. The previous owner agreed to the neighbours adjacent extention (2018) and inturn a party wall was constructed. However on the property form from the law society no party wall agreement was documented and also the neighbou has water and electrical services under my land to service there garden. Also this wasn’t highlighted on the Law society form.
Thank you for your comment. While we are unable to give advice solely based on this without having seen the Property Information Form and similar, whether there is a misrepresentation will depend on exactly what was stated. Notably, there is no obligation upon sellers to volunteer information. Therefore they are not required to specifically state that these issues existed unless they were specifically asked about whether there was any Party Wall agreement or any services for neighbours going across the land and they denied that this was the case. In that case there would be a false statement that they had made, though this will depend exactly on what was asked, if anything, and the answers given.
However there would then be the question as to whether you had relied upon it and were entitled to rely upon it. Usually a statement in a property information form is something that you are entitled to rely upon. The final stage would then be to show what loss or damage you had undergone as a result.
If you wish to discuss this with us further please do not hesitate to contact our Braintree office for a confidential discussion.
My seller didn’t disclose subsidence of the property or drain blockages. The level 2 survey also didn’t pick up the major cracks possibly because the seller purposely hid the damage or made it difficult for the surveyor to gain access. The evidence shows that the seller was aware because they tried to fix it themselves outside of insurance with a really bodged job using replaced blocks and installing a lintel at the base of the garage where the subsidence is. They also didn’t disclose this in their TA06 about major works being done or alterations to the house. Where do I stand with this? My house is subsiding, new cracks are forming and my drain is blocked soaking the ground around it?
We have noticed that there remains a common misconception that a seller is under an obligation to identify defects or issues with a property to a buyer. A seller is not obliged to say anything to a buyer about a property. The position is always “buyer beware”. This means that it is up to the buyer to ask questions until they are happy about the property that they are going to purchase. If the seller does not answer questions or volunteer information, it is solely down to the buyer to decide whether or not they want to take a risk in proceeding with the transaction. This is the legal position.
In practice, it is common for sellers to volunteer information and answer enquiries about the property because it would be a very rare buyer that would be prepared to take the risk of proceeding to purchase a property without any information at all about it. The practical effect of this is that a seller realistically does have to provide some information or a buyer, or the buyer will not proceed with the purchase, but this is not a legal requirement on the seller. A potential misrepresentation occurs only when a seller provides information that the buyer relies on when deciding to enter into the contact but it transpires that the information provided is factually inaccurate. In essence, the buyer must be able to “blame” the seller for misleading the buyer. This does not to be deliberate. If nothing is said about a particular point in respect of the property, it cannot be said that the buyer has relied on what the seller has said and that the seller has misled the buyer; the buyer reached their own conclusions or assumptions about the facts of a matter based on other things.
If the works undertaken, which appear to have been with a view to concealing the subsidence, can be considered “substantial works”, then there would be a possible misrepresentation claim against the seller. In deciding whether or not this was the case, a Court will give a plain and ordinary meaning to the words used. If a Court decides that a buyer reading the property information form would reasonably have adopted the view that the answer suggested as a matter of fact, no works of the nature complained of had been undertaken, the claim could be successful. We would hesitantly suggest that it is not unreasonable for anyone to believe that any works to do with the structural integrity of the property were not “substantial works”, whoever undertook them. There would almost certainly be a distinction to be had between minor cosmetic works that have no bearing on the value or structure of a property and works which a reasonable person could assume would.
As for the surveyor, clearly the purpose of instructing a surveyor is to check with issues in relation to the structural integrity of a property. However, it would be important to consider the surveyors’ retainer, this is the agreement between you and the surveyor which sets out what the limitations of the retainer are and what the surveyor contractually agreed to do for you. For example, it would not be uncommon for a surveyor’s retainer to exclude liability for matters which could not be discovered except through invasive investigation, such as removing wall or floor coverings. If, however, it can be said that a reasonably competent surveyor with the same information and acting on the same terms would have provided different advice (i.e. to identify the subsidence) then there would be a claim for professional negligence.
Hi, we recently purchased a property and the seller indicated that the property was not on a water meter, it turns out that there is and being a family of four this will end up being more expensive than a fixed tariff. Where do we stand?
Whether or not there is a claim for misrepresentation (or perhaps breach of contract, but unlikely) depends on the contractual terms agreed.
Much of the time a developer will include within their contract a term enabling them to change the layout of the estate or construction of the property to some degree, provided that it does not have a material impact on the value of the property. This is to allow them, some flexibility if they encounter problems and is arguably understandable.
You will probably also find a standard clause in the contract which says that unless something was said in writing during the course of the transaction, it cannot be relied on and would therefore not give rise to a misrepresentation claim. An exception to this would normally be fraud, liability for which cannot legally be excluded from a contract. If it can be proved that the developer never intended to move the pylons but said they would, there could be a claim for fraudulent misrepresentation.
Generally speaking, anything particularly important to a buyer or seller should be expressly included in the contract.
In summary, the terms of the contract are important to consider as well as the precise words and circumstances that the representation was made in before deciding whether or not a misrepresentation claim exists or not.
Do feel free to get in touch if you would like to explore matters in more detail.
In short, if the seller told you something inaccurate that you relied on when entering into the agreement to purchase the property, there may be a claim for misrepresentation. We are hesitant to suggest that a Court would accept that it was reasonable to rely on a representation that, effectively, the water bills would be cheaper when deciding to purchase a house, however.
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Hi
I bought a property in Aug of last year. The previous owner agreed to the neighbours adjacent extention (2018) and inturn a party wall was constructed. However on the property form from the law society no party wall agreement was documented and also the neighbou has water and electrical services under my land to service there garden. Also this wasn’t highlighted on the Law society form.
Do I have a case of misrepresentation?
Thank you for your comment. While we are unable to give advice solely based on this without having seen the Property Information Form and similar, whether there is a misrepresentation will depend on exactly what was stated. Notably, there is no obligation upon sellers to volunteer information. Therefore they are not required to specifically state that these issues existed unless they were specifically asked about whether there was any Party Wall agreement or any services for neighbours going across the land and they denied that this was the case. In that case there would be a false statement that they had made, though this will depend exactly on what was asked, if anything, and the answers given.
However there would then be the question as to whether you had relied upon it and were entitled to rely upon it. Usually a statement in a property information form is something that you are entitled to rely upon. The final stage would then be to show what loss or damage you had undergone as a result.
If you wish to discuss this with us further please do not hesitate to contact our Braintree office for a confidential discussion.
My seller didn’t disclose subsidence of the property or drain blockages. The level 2 survey also didn’t pick up the major cracks possibly because the seller purposely hid the damage or made it difficult for the surveyor to gain access. The evidence shows that the seller was aware because they tried to fix it themselves outside of insurance with a really bodged job using replaced blocks and installing a lintel at the base of the garage where the subsidence is. They also didn’t disclose this in their TA06 about major works being done or alterations to the house. Where do I stand with this? My house is subsiding, new cracks are forming and my drain is blocked soaking the ground around it?
Thank you for your comment.
We have noticed that there remains a common misconception that a seller is under an obligation to identify defects or issues with a property to a buyer. A seller is not obliged to say anything to a buyer about a property. The position is always “buyer beware”. This means that it is up to the buyer to ask questions until they are happy about the property that they are going to purchase. If the seller does not answer questions or volunteer information, it is solely down to the buyer to decide whether or not they want to take a risk in proceeding with the transaction. This is the legal position.
In practice, it is common for sellers to volunteer information and answer enquiries about the property because it would be a very rare buyer that would be prepared to take the risk of proceeding to purchase a property without any information at all about it. The practical effect of this is that a seller realistically does have to provide some information or a buyer, or the buyer will not proceed with the purchase, but this is not a legal requirement on the seller. A potential misrepresentation occurs only when a seller provides information that the buyer relies on when deciding to enter into the contact but it transpires that the information provided is factually inaccurate. In essence, the buyer must be able to “blame” the seller for misleading the buyer. This does not to be deliberate. If nothing is said about a particular point in respect of the property, it cannot be said that the buyer has relied on what the seller has said and that the seller has misled the buyer; the buyer reached their own conclusions or assumptions about the facts of a matter based on other things.
If the works undertaken, which appear to have been with a view to concealing the subsidence, can be considered “substantial works”, then there would be a possible misrepresentation claim against the seller. In deciding whether or not this was the case, a Court will give a plain and ordinary meaning to the words used. If a Court decides that a buyer reading the property information form would reasonably have adopted the view that the answer suggested as a matter of fact, no works of the nature complained of had been undertaken, the claim could be successful. We would hesitantly suggest that it is not unreasonable for anyone to believe that any works to do with the structural integrity of the property were not “substantial works”, whoever undertook them. There would almost certainly be a distinction to be had between minor cosmetic works that have no bearing on the value or structure of a property and works which a reasonable person could assume would.
As for the surveyor, clearly the purpose of instructing a surveyor is to check with issues in relation to the structural integrity of a property. However, it would be important to consider the surveyors’ retainer, this is the agreement between you and the surveyor which sets out what the limitations of the retainer are and what the surveyor contractually agreed to do for you. For example, it would not be uncommon for a surveyor’s retainer to exclude liability for matters which could not be discovered except through invasive investigation, such as removing wall or floor coverings. If, however, it can be said that a reasonably competent surveyor with the same information and acting on the same terms would have provided different advice (i.e. to identify the subsidence) then there would be a claim for professional negligence.
If you would like to explore the matter in more detail, please do get in touch.
Hi, we recently purchased a property and the seller indicated that the property was not on a water meter, it turns out that there is and being a family of four this will end up being more expensive than a fixed tariff. Where do we stand?
Thanks in advance.
Thank you for your comment.
Whether or not there is a claim for misrepresentation (or perhaps breach of contract, but unlikely) depends on the contractual terms agreed.
Much of the time a developer will include within their contract a term enabling them to change the layout of the estate or construction of the property to some degree, provided that it does not have a material impact on the value of the property. This is to allow them, some flexibility if they encounter problems and is arguably understandable.
You will probably also find a standard clause in the contract which says that unless something was said in writing during the course of the transaction, it cannot be relied on and would therefore not give rise to a misrepresentation claim. An exception to this would normally be fraud, liability for which cannot legally be excluded from a contract. If it can be proved that the developer never intended to move the pylons but said they would, there could be a claim for fraudulent misrepresentation.
Generally speaking, anything particularly important to a buyer or seller should be expressly included in the contract.
In summary, the terms of the contract are important to consider as well as the precise words and circumstances that the representation was made in before deciding whether or not a misrepresentation claim exists or not.
Do feel free to get in touch if you would like to explore matters in more detail.
Thank you for your comment.
In short, if the seller told you something inaccurate that you relied on when entering into the agreement to purchase the property, there may be a claim for misrepresentation. We are hesitant to suggest that a Court would accept that it was reasonable to rely on a representation that, effectively, the water bills would be cheaper when deciding to purchase a house, however.