416 thoughts on “My Seller Lied To Me! When Is It Property Misrepresentation?”
Hi
I bought a new-build property from [a developer] and have lived in it just over a year. The site plans show a play area with grass and trees in front of my house. When I visited the house under construction there was a site workers’ car park in front of the house. I was told that it was temporary and would be gone by the time I moved in. When I did move in the car park was still there and I was told that it would be moved in a couple of months. Over a year later it is still there. Apparently the car park was always going to be there until the entire site is completed (in 2 years?); the play area was never going to be there until the site was completed.
My neighbours were also unaware of the plans to keep the car park there. They were also told by several Barratt Homes employees on separate occasions that it would be moved. It is very very clear that we were misled .
I have raised a formal complaint and have received their response which is “tough – you bought a house, we built a house.” I know the next step is taking it to the Independent Disputes service but they are toothless and can not actually enforce any kind of compensation.
We would need to consider the terms of your contract first and foremost. It would not be unusual for a developer to include a clause enabling them to make changes to both the property being constructed (as long as it doesn’t materially affect its value) or the estate itself. Developers generally need some flexibility in case problems arise, for example, with supply issues, planning issues or the discovery of something unexpected during the build of the estate.
We would also need to consider whether or not there was a “whole agreement clause” or other contractual terms excluding liability for oral representations (so far as you were told things orally). Such clauses or terms have the effect of contractually excluding liability for things said on the basis that everything important to a buyer or seller should be included in the written contract. It avoids arguments about “who said what”. Such clauses are of limited value if there is a fraudulent misrepresentation however, as liability for fraud can never be excluded from a contract.
If you can prove that the developer knew you believed that the car park would be gone, knew this was not the case and failed to correct your understanding, there may be a claim. However, whether or not it is financially viable to pursue will depend on your financial loss i.e. the extent to which the property has lost value. This would be something a suitably qualified surveyor would need to be asked about.
Hi, I have a slightly different situation to those mentioned in the article. Can you tell me if a solicitor has a duty to contact any other party that will be affected by a sale of a property? For context my neighbour has sold a property without informing me or without the solicitor contacting me when I am directly affected by the sale. Regarding water supply, electric supply, solar panels on roofs etc. I’m surprised that the sale went ahead without my involvement in any way.
We also specialise in professional negligence (often against solicitors) so can advise on the scope of duty and duty of care of solicitors.
From what you have written, it does sound as though there is probably little scope to claim against the solicitor, but we would not be able to advise on this until we had considered the position in full; sometimes solicitors can owe a duty of care to “third parties” that have no direct contractual relationship with them (called a “retainer”). However, the “traditional” test for this is the “proximity test” set out in Caparo v Dickman regarding whether or not it can be said the solicitor assumed a responsibly to that third party.
We do not know how you have been affected by the situation but the chances are, your remedy (“claim”) lies against someone else, if your rights to an electric supply or other utilities have been interfered with.
Hi! Can we please ask if we have a chance of suing whether the estate agent or the owner for misleading us on the property area? it did say on the plan that the buyer has to measure it himself and they are not liable for any lawsuit, but there are 15 m2 missing, from out measurements, at least. Now we have the keys, so we exchanged contracts, but when we measured to buy the carpets, because they told us too, we never even thought they could do such a thing, we were shocked. Now , we live in England and we didn’t ever expect that people can mess-up someone’s life by misleading them like that, even in my 3rd world country where I come from, they don’t do things like that, the property has to be measured before hand by the seller and no one ever lies about that ever. Shocked to hear such practises exist in the mighty UK. We would have offered at least 5000 k less, if we knew. Is there any chance of getting any compensation of we sue them? I have read that you have to exhaust all the possibilities first before suing them, as in trying to settle with the estate agent or seller, I have no idea . Do we stand a chance in any way if we sue them for misleading please? even if we get at least 2000£, it will make me feel better, I will not cry because of this for a whole week now after I found out, I spend years trying to save that money, crammed in a one bedroom apartment with a autistic son, who had tantrums, had to sell out flat to afford a mortgage, as we are a bit older than the average buyer, so we had to have a bigger deposit to afford a house. Do we have to start writing a complaint forts asking for a compensation amount first or it is a waste of time you think? Thank you!
We cannot provide legal advice on our website. We can only really provide information about general principles that may apply in any particular set of circumstances. We would need to consider the matter in detail, including relevant evidence and the contractual terms agreed, before we could provide any advice.
From what you have written, it sounds unlikely that there would be any basis of claim for misrepresentation and if there were, it may be too risky to justify pursuing.
The main reason for this is because you were expressly advised that you should not rely on the measurements provided but undertake your own checks and rely on those. Whilst this is not always a bar to a claim (for example, see Clinicare Ltd v Orchard Homes Development Ltd [2004] referred to here: https://cunningtons.co.uk/property-misrepresentation-claims/) , it strikes us that the point would be problematic.
For any misrepresentation claim to be successful, the aggrieved party must have relied on the inaccurate factual statement when deciding to enter into the contract. If you knew that the seller/agent’s measurements were potentially inaccurate and this was pointed out to you, it raises the question on whether or not you should or could have relied on what was said. It would be for a claimant in any claim to prove their reliance on what was said. It would not be for the defendant to show that the claimant did not rely on what was said. This is called the burden of proof and generally speaking a claimant is the person that needs to discharge that burden of proof. You could face an argument that you knew there was a risk that the measurements were inaccurate but proceeded anyway, therefore you did not rely on what was said. Further, you presumably viewed the property before purchasing it. If so, this would provide a further argument in defence in that it was your viewing that you relied upon, rather than anything said in estate agent’s particulars.
If the agent’s particulars were misleading there may be scope to approach any redress scheme that they are part of, which should be free and impartial. We would probably recommend that you do this before incurring any legal cost as from what you have described, your proposed claim sounds as though it could be risky
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Hi
I bought a new-build property from [a developer] and have lived in it just over a year. The site plans show a play area with grass and trees in front of my house. When I visited the house under construction there was a site workers’ car park in front of the house. I was told that it was temporary and would be gone by the time I moved in. When I did move in the car park was still there and I was told that it would be moved in a couple of months. Over a year later it is still there. Apparently the car park was always going to be there until the entire site is completed (in 2 years?); the play area was never going to be there until the site was completed.
My neighbours were also unaware of the plans to keep the car park there. They were also told by several Barratt Homes employees on separate occasions that it would be moved. It is very very clear that we were misled .
I have raised a formal complaint and have received their response which is “tough – you bought a house, we built a house.” I know the next step is taking it to the Independent Disputes service but they are toothless and can not actually enforce any kind of compensation.
I’d appreciate your advice.
Thank you for your comment.
We would need to consider the terms of your contract first and foremost. It would not be unusual for a developer to include a clause enabling them to make changes to both the property being constructed (as long as it doesn’t materially affect its value) or the estate itself. Developers generally need some flexibility in case problems arise, for example, with supply issues, planning issues or the discovery of something unexpected during the build of the estate.
We would also need to consider whether or not there was a “whole agreement clause” or other contractual terms excluding liability for oral representations (so far as you were told things orally). Such clauses or terms have the effect of contractually excluding liability for things said on the basis that everything important to a buyer or seller should be included in the written contract. It avoids arguments about “who said what”. Such clauses are of limited value if there is a fraudulent misrepresentation however, as liability for fraud can never be excluded from a contract.
If you can prove that the developer knew you believed that the car park would be gone, knew this was not the case and failed to correct your understanding, there may be a claim. However, whether or not it is financially viable to pursue will depend on your financial loss i.e. the extent to which the property has lost value. This would be something a suitably qualified surveyor would need to be asked about.
Hi, I have a slightly different situation to those mentioned in the article. Can you tell me if a solicitor has a duty to contact any other party that will be affected by a sale of a property? For context my neighbour has sold a property without informing me or without the solicitor contacting me when I am directly affected by the sale. Regarding water supply, electric supply, solar panels on roofs etc. I’m surprised that the sale went ahead without my involvement in any way.
Thank you for your comment.
We also specialise in professional negligence (often against solicitors) so can advise on the scope of duty and duty of care of solicitors.
From what you have written, it does sound as though there is probably little scope to claim against the solicitor, but we would not be able to advise on this until we had considered the position in full; sometimes solicitors can owe a duty of care to “third parties” that have no direct contractual relationship with them (called a “retainer”). However, the “traditional” test for this is the “proximity test” set out in Caparo v Dickman regarding whether or not it can be said the solicitor assumed a responsibly to that third party.
We do not know how you have been affected by the situation but the chances are, your remedy (“claim”) lies against someone else, if your rights to an electric supply or other utilities have been interfered with.
Hi! Can we please ask if we have a chance of suing whether the estate agent or the owner for misleading us on the property area? it did say on the plan that the buyer has to measure it himself and they are not liable for any lawsuit, but there are 15 m2 missing, from out measurements, at least. Now we have the keys, so we exchanged contracts, but when we measured to buy the carpets, because they told us too, we never even thought they could do such a thing, we were shocked. Now , we live in England and we didn’t ever expect that people can mess-up someone’s life by misleading them like that, even in my 3rd world country where I come from, they don’t do things like that, the property has to be measured before hand by the seller and no one ever lies about that ever. Shocked to hear such practises exist in the mighty UK. We would have offered at least 5000 k less, if we knew. Is there any chance of getting any compensation of we sue them? I have read that you have to exhaust all the possibilities first before suing them, as in trying to settle with the estate agent or seller, I have no idea . Do we stand a chance in any way if we sue them for misleading please? even if we get at least 2000£, it will make me feel better, I will not cry because of this for a whole week now after I found out, I spend years trying to save that money, crammed in a one bedroom apartment with a autistic son, who had tantrums, had to sell out flat to afford a mortgage, as we are a bit older than the average buyer, so we had to have a bigger deposit to afford a house. Do we have to start writing a complaint forts asking for a compensation amount first or it is a waste of time you think? Thank you!
Thank you for your comment.
We cannot provide legal advice on our website. We can only really provide information about general principles that may apply in any particular set of circumstances. We would need to consider the matter in detail, including relevant evidence and the contractual terms agreed, before we could provide any advice.
From what you have written, it sounds unlikely that there would be any basis of claim for misrepresentation and if there were, it may be too risky to justify pursuing.
The main reason for this is because you were expressly advised that you should not rely on the measurements provided but undertake your own checks and rely on those. Whilst this is not always a bar to a claim (for example, see Clinicare Ltd v Orchard Homes Development Ltd [2004] referred to here: https://cunningtons.co.uk/property-misrepresentation-claims/) , it strikes us that the point would be problematic.
For any misrepresentation claim to be successful, the aggrieved party must have relied on the inaccurate factual statement when deciding to enter into the contract. If you knew that the seller/agent’s measurements were potentially inaccurate and this was pointed out to you, it raises the question on whether or not you should or could have relied on what was said. It would be for a claimant in any claim to prove their reliance on what was said. It would not be for the defendant to show that the claimant did not rely on what was said. This is called the burden of proof and generally speaking a claimant is the person that needs to discharge that burden of proof. You could face an argument that you knew there was a risk that the measurements were inaccurate but proceeded anyway, therefore you did not rely on what was said. Further, you presumably viewed the property before purchasing it. If so, this would provide a further argument in defence in that it was your viewing that you relied upon, rather than anything said in estate agent’s particulars.
If the agent’s particulars were misleading there may be scope to approach any redress scheme that they are part of, which should be free and impartial. We would probably recommend that you do this before incurring any legal cost as from what you have described, your proposed claim sounds as though it could be risky