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.
Hi, I bought a house on the edge of a new development 2 years ago, and was told by numerous staff of the developer that a 4m strip running behind the gardens was a wildlife corridor. It was populated by many mature trees and had the effect that our house was not overlooked. Several neighbours on the road behind have since claimed parts of this strip as their gardens, removing the trees in the process. All of my neighbours were told the same, BUT it does not appear on the plans, appears to be an ignored issue. Developer claims now that this is nothing to do with them, and that the council has given permission. The council have not told me this, they claim to not know. Can we hold the developer responsible for verbal promises?
Thank you for your comment.
As to whether a buyer can hold a seller liable for oral misrepresentations usually depends primarily on
two things. The first is the terms of the contract of sale. This normally has a “standard” clause
contractually excluding liability for oral representations. This is actually sensible. It avoids arguments in
the future about “who said what” and on the basis that if the issue is important to the buyer, the buyer
should be looking to include a particular contractual clause about the issue.
The second is whether or not there is fraud. If a seller deliberately misleads a buyer knowing what they
are saying is untrue, the any clauses looking to exclude or limit liability will not generally work. This is
because you cannot exclude liability for fraud from a contract.
I purchased a property in September without involving a surveyor. The internal area of the property was advertised as 160 SQM (1722 SQF) in their marketing materials with planning permissions in place to extend it to ~220 SQM (2400 SQF). Upon measuring the property now as it is, it turned out to be 123 square meters (1328 square feet) (attached). The difference is quite major being almost 40 square meters. I do have the brochure from the seller, which states a fake size of 160 SQM (mentioned as approximate gross internal area) and multiple correspondences with the seller stating fake numbers as well.
The scale of the advertised property has a major financial loss to me, and I wish to recover the loss. Please let me know if you can advise on and carry the claim forward.
I know this requires thorough legal investigation to determine if I have a case here or not but that investigation cost quite a bit. I want to get a sense from someone if given the information above, it is worthwhile investigating this further or not. To me, it seems insane that a seller can misrepresent to such an extent the size & the opportunity of a property whether knowingly or not.
Thank you for your comment.
You should probably give us a call to discuss the matter. We are an approachable firm and generally
happy to have a quick no obligations conversation.
What we would say here is that what you are talking about will either be breach of contract or
misrepresentation as a basis of claim, probably the latter.
Ultimately the basic position is that the buyer must satisfy themselves as to what they are buying. The
position changes where there has been something stated, as a matter of fact, by the seller which is
wrong. Your ability to bring a misrepresentation claim will depend on the contractual terms agreed to
and the nature of what was said. For example, an honest error and a contractual clause that excludes
liability for misrepresentation might prevent a claim. A dishonest intention (which is hard to prove)
means that such a clause will potentially be ineffective, as you cannot exclude liability for fraud from a
contract.
Hi ,
I bought a house in June 2021 , the house had a lot of crack’s which seller did not make us aware of , as he had those all covered with materials placed around them , the boiler was broken down , the jacuzzi was leaking, the electric wiring was dodgy according to inspection made by an electrician.
It’s been quite a while, will I still have right of making a claim against the seller?
Thanks
Thank you for your comment.
Whether or not you have a claim will depend on a lot of things but primarily when the contact completed, first and foremost.
Fraud and deliberate concealment on the part of a defendant (so far as it can be proved, which is a high evidential burden) can extend what are known as as “limitation periods” (i.e. statutory deadlines to bring claims).
What we would say is if the seller made no representation as to the condition of anything, the prospect of an actionable misrepresentation claim with any real prospect of success existing is minimal.
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
Thank you very much for sharing this, much appreciated.
My partner and I are in the process of buying a property. When we viewed the property there were tenants inside but we were reassured that they are leaving the property in a month time so at the time of purchase it would be vacant. We double-checked this before making an offer and the agent in writing confirmed that they would leave by 4th September. We paid for the survey and the solicitor and we received the seller pack, etc. However, when we enquired whether we could view the property again from the agent ince 4th Sept passed, we found out that the tenants haven’t left. This immediately raised a red flag and we asked our solicitor to chase up what is going on and apparently these tenants belong.to the council therefore still after weeks we have not found out when they could actually move out as the council would need to find a new home from them. We are frustrated as already spent a lot of money and we have been misled by the agent and seller who reassured us that this property will by vacant. However, already more than 2 months passed and it seems the tenants in situ won’t leave for a while.
Could you please advise if we could submit a misrepresentation claim since we have been misled and even though we have been clear from day 1 that we would never buy a property with tenants in situ, it feels we have been tricked to it and given false information. I look forward to your advice that would be greately appreciated
Thank you for your comment.
If you have not exchanged/entered into a contract based on what you were advised then the chances of pursuing a successful misrepresentation claim are extremely slim. A fundamental point of a misrepresentation claim is that, in reliance on factually inaccurate information that the seller has provided, the buyer enters into a contract to purchase the property. If there is no contract, there is no loss per se. All of the correspondence and matters raised up until a contract is entered into is generally subject to contract and would not be a loss that can be claimed. In effect, such costs can be considered the due diligence a buyer is undertaking to satisfy themselves that they are prepared to proceed. If they decide to withdraw, then this is not generally recoverable.
If you have exchanged/entered into a contract and it is a term of that contract that vacant possession be given on completion (which it often is), there may be a claim for breach of contract but you should discuss this with your conveyancing solicitor. It would normally be the case that notice to complete should be served but it is a common misconception that this is a requirement for a breach of contract claim; it is not.
There is also a question mark over what you have been told constitutes a representation of fact or a representation of law. The former is actionable, the latter is not. There is case law that blurs the distinction but we would suggest that if you entered into a contract on the express promise they the property would be vacant on completion, there may be a misrepresentation claim. However, you may very well be better off serving notice to complete, rescinding the contract of the notice is not complied with and pursuing a breach of contract claim instead. We cannot know for sure what your best options are and cannot provide any specific advice until we know more about the situation. Certainly your conveyancing solicitor should be able to provide you with at least some limited guidance on your options in the circumstances.
My daughter purchased a house which was free of subsidence on survey in March 22 – on completion in Sept the porch had subsided in the hot summer of 22. Cost of repairs is circa £15k The vendor did not disclose this or even submit an insurance claim.- what are legal options for misrepresentation. Thank you
Thank you for your comment.
We cannot give specific legal advice on our website but in terms of general guidance, a claim for misrepresentation can arise when a representation was made which was accurate at the time but has subsequently become inaccurate. In such circumstances the seller may have a duty to update the buyer on the position and failing to do so can give rise to a misrepresentation claim.
However, what you have said suggests that you relied on your survey when deciding whether or not to enter into the contract to purchase the property, rather than anything that the seller said to you. If a misrepresentation claim is contemplated against a seller, it is necessary to identify the express (and sometimes implied) representation that was factually inaccurate. A seller would not normally make any comments regarding the condition of the property, instead telling the buyer to rely on their own enquiries and survey. This is fairly standard practice and not unreasonable; most sellers will not be qualified to say whether or not there are structural issues with the property.
There could be scope for a breach of contract claim, however, this would depend on when exchange of contracts took place and when the damage occurred.
Do feel free to contact us if you would like to explore the matter in more detail.
Hi Mark,
Further to my earlier message.
Is there an obligation on the seller of the house I intend to purchase to disclose an insurance claim.
Sorry, just slightly confused on reading the last post.
Many thanks
Thank you for your comment.
The short answer is no. A seller is not obliged to provide any information about a property at all. It is always a case of “caveat emptor” or “let the buyer beware”. A house purchase is no different.
For practical reasons, a buyer is going to be far less inclined to take the risk of proceeding with the purchase of the seller does not provide the information that the buyer wants, but there is no legal obligation on a seller to provide information. The only “requirement” on a seller is to provide factually accurate information. This is less of a requirement and more because the seller should want to avoid being held liable for misrepresentation later.
Hi. We found out that the freeholder who granted us the lease 10 years ago misrepresented the situation. This person sold the freehold a couple of years later. Should our misrepresentation claim be against the current freeholder? The current freeholder is well aware of the problem.
Thank you very much.
Thank you for your comment.
We cannot provide specific advice on our website. We can, however, provide some general guidance but do need to point out that it may not apply in your circumstances.
In any misrepresentation claim, the claimant will be the representee (the person that was provided with the representation which they relied on when deciding to enter into the contract in question) and the defendant will be the representor (the person that made the representation). Most of the time, these are the same parties to the contract, but not always. Sometimes third parties can be held liable for misrepresentation. Unless the current freeholder made the representation to you, it is quite unlikely that they would be the defendant.
It is also noted that you purchased your property 10 years ago (presumably by way of a grant of a new lease). The basic limitation period that would probably apply in your matter would be 6 years from the date of exchange of contracts (but in some circumstances it can be 6 years from a different point in time). It would therefore be necessary to carefully consider whether or not you are out of time to pursue any sort of claim first.
Can you reclaim survey and conveyancing fees from a seller who lied about the number of bedrooms in the house in the property listing? We have not purchased the house yet but we may pull out unless a new price is agreed. If the seller pulls out we will want to claim our legal fees. Is this fine under tort law? Or is pure economic loss not acceptable in that case?
Thank you for your comment.
In short, the answer is no. Until such time as contract is entered into, there is no contractual basis to pursue a claim against a seller. Likewise, it would be very unusual for a seller to have a duty of care to a buyer, which could form the basis of any claim in tort. Unless you can prove that the seller deliberately caused you to incur losses, which appears very unlikely, we cannot really see that you have any basis of claim. However, we cannot provide specific advice on our website and part of the reason for this is because we do not know the full facts of the matter.
Even if there is a basis of claim, you may find that the seller contends that you caused your own loss by failing to inspect the property before placing an offer on it and instructing solicitors. Presumably you did not inspect the property, or you would have identified the number of rooms.
Hi,
I am wondering if we’ll have a leg to stand on. The previous owner of our house sold to us claiming our neighbour ‘liked a drink but kept himself to himself’ we bought the house, then later found out he had an ASBO and has caused so many problems. Now, I understand they may not have to disclose certain things, however, she did mention him but stated as I’ve said above. Later I have found out how bad he was for her too, other neighbours have come forward with stories and it seems she wanted a quick sale. Now we’re stuck. If we sell we could make a loss. Is she responsible for any of this legally or is her responsibility a moral one? There were police reports, she played them down to our solicitors.
Thank you for your comment.
We see a lot of issues like this. No one wants to live next door to a horrible neighbour and to a degree, it is understandable that a seller does not want to lose their buyer or sell at a loss so will try to play down the issue. Sadly, this is where a seller encounters difficulties.
In one particular case that we have referred to previously, the seller was engaged in an ongoing dispute with a neighbour over parking issues. When the buyer discovered this on moving in, he sued the seller for misrepresenting the situation. The seller argued that as far as he was concerned, there was no dispute, and this was why he stated that he was not aware of any ongoing matters that could give rise to a dispute with neighbours. The Court found that on a proper interpretation of what was being asked by the seller and the response given by the buyer, the seller misrepresented the fact that there was an ongoing dispute.
The normal measure of damages would be diminution in value. This is the difference between what someone would pay for the property knowing about the issue in question and what the property was worth without the problem. This is not always the same as the cost of fixing the problem or the loss that would be suffered if the property was sold subsequently with “full disclosure” of the current issues.
Whilst we cannot provide specific advice on our website, and there would be some background reading and discussions with you necessary, if it is the case that what was told to you was factually inaccurate, or was indeed factually accurate but because of what was left unsaid, you were misled into thinking the situation was fine and the seller knew you had formed this view, then yes, there may be a basis of claim and you may have a leg to stand on.
Do feel free to get in touch if you would like to consider the matter in more detail.
Hello, I am selling a flat which is in a bad area as we unfortunately get ASB taking place now and again in the communal gardens. They are not neighbours but local homeless people. The management company are aware and said in the recent AGM they are working with the police to try and deter this. Do I need to disclose this information to a buyer?
Thank you for your comment.
A seller is not obliged to disclose anything about the property they are proposing to sell if they do not want to. They do not even have to answer questions or complete the standard property information forms if they do not want to. However, the practical effect of this is that a buyer may not be prepared to proceed with the purchase if the seller is not prepared to supply information that the buyer wants to know.
If questions are asked by the buyer which, in answering, it would be necessary to point out the issues that you have, the seller really only has one of two choices. They can either decline to provide and answer or they can answer accurately. We often see cases where a seller has said something which is misleading, in an attempt to paint the facts of the matter in a better light than may otherwise be the case.
Hi Mark,
I am currently purchasing a house. The seller states there has been no building insurance claim on ta6, section 6.5, but speak to a neighbour I have been given the impression there has been.
Is there anyway of checking by making enquirires through the claims and underwriting enquirires CUE, or through my solicitor.
Many thanks
Thank you for your comment.
We think the best thing that you can do is ask the seller directly. If you have information that is relevant to your decision to proceed with the purchase or not but need to verify this, it is down to you to do this.
We suggest you have a conversation with your solicitor about the contractual clauses you are about to agree and also instruct them to ask the seller the question you want the answer to. Normally, but not always, a seller’s liability to a buyer is expressly limited to representations made in writing between the parties. If the insurance claim issue is a deal breaker for you, it would probably be best to ask the seller to confirm the position in writing and ensure that you can hold them contractually liable for this representation later if it was untrue.
As for “CUE” or the Claims and Underwriting Exchange Database, we do not in fact know the answer to this but believe that it is more of an industry led initiative to prevent fraud, rather than a source of information for persons on your position. Whatever the case, it is always best to ask a seller ALL of the important questions that are likely to have an influence over your decision to purchase. It is also normally sensible to do this in writing. Whilst the seller does not have to answer questions, it is up to the buyer to decide whether or not to risk proceeding based on the information that they have.
Our seller misrepresented the property by answering ‘No’ to the question relating to Japanese Knotweed, which we now know they were clearly aware of.
The problem we now face is that they moved onto a canal vessel and refuse to respond to solicitors email and hand delivered letter.
We feel that we can’t progress this misrepresentation claim without the previous owners forcing us to have the courts intervene – is there anything else I could do?
Thank you for your comment.
In any claim, if matters cannot be resolved between the parties, generally the only other option would be formal action through the Courts. If the proposed defendant in any case does not respond to correspondence, particularly threats of litigation, unwise as this may be, this is their prerogative.
Our surveyor ( level 3) has correctly identified wall tie failures (specialist survey with camera), advised CCTV drain survey (revealed multiple cracked soil pipework and other issues that happened to run adjacent to a room where the concrete floor has dropped 2cm – possibly due to leaking spoil pipes. Am I correct in my understanding, (2008 consumer laws) that if we pull out of the sale that the vendor and estate agent, now that they have been made aware of the issues must by law, highlight these issues to any new buyer?
Thank you for your comment.
I think what you are asking is whether or not, in a subsequent sale, the seller must point out these issues to any prospective buyer.
We do not believe that this is the case and most consumer law would not apply for a sale between two private individuals not acting in the course of business.
The basic position is “buyer beware”. It is for the buyer to investigate and satisfy themselves as to matters. This is why it is always advisable for a buyer to ask for a survey to be undertaken.
Hello
I am looking at purchasing a property and the online plans on Rightmove don’t match the house.
There is an additional door here now and the flow plans show it’s a solid wall.
What should we ask for this ensure this isn’t misinterpreted
Thanks
Thank you for your comment.
As a buyer, it will be your responsibility to make sure that you are happy with the property you are purchasing.
If there is any aspect of the property that requires clarification, you should ask the seller, ask your surveyor or both.
Anything you are unsure about should be clarified before exchange of contracts and if a particular aspect of the transaction or property is particularly important to you, you should ask you solicitor to address the point by an inclusion of a relevant contractual term.
Hi. We built an 18 month old property in November 2020 and shortly after we moved in it became apparent that there are serious issues with the drainage. After several companies were called out to unblock the drains we were advised that the pipes that run under the kitchen floor have not been installed properly and they have sunk leaving approx 2.5 metres of drain under our kitchen under water causing constant blockages. The sellers ticked that they weren’t aware of any issues with the drainage on the property information form. We have since found out from neighbours that they were very aware of this as the issue was something several of the houses down the street suffered with and there were also issues with the drains on the front that had to be dug up at one point. The builder has now conveniently gone into administration (however is setting up again under a different name) and so we are claiming for this to be resolved through LABC. Are we able to sue the sellers for not being honest with us? We would not be able to sell this property now if we wanted to and we are likely to have a lot of disruption and battles to get work completed coming in the future. Thank you
Thank you for your comment.
We are sorry to hear of these difficulties.
In short, if a seller expressly represents a fact which can be proved was untrue, and that you relied on what was said when entering into the agreement to purchase the property then there may be a claim for misrepresentation.
Your loss is likely going to be assessed by reference to the difference in value of the property at the time of purchase with and without the defect complained of.
We believe that you mean you purchased an 18 month old property. If this was direct from the developer and it can reasonably be said that the property is uninhabitable, then there could be a claim under the Defective Premises Act 1972.
You suggest that you may be trying to pursue matters against LABC. This is probably sensible to consider doing but it would not necessary mean you do not have a claim against the sellers either.
Great article, thank you. I bought a house 3 years ago in West London. The night I moved in with my family we were disturbed by what is clearly the Underground running under the property. We hadn’t really noticed in it during our viewings but it’s as clear as day when you’re here. We contacted TFL about it and they advised that the previous owners had complained before, and that TFL had visited the property and recorded the sound levels as being above the accepted threshold.
On the TA6 form the seller stated that they knew of no Complaints or Issues, or Notices and Proposals in relation to the property. However, through TFL, we know this to be untrue.
The noise is not that bad – you get used to it. But I wonder what position we are in if/when we decide to sell? Do we need to disclose the sound on a TA6? And if so should we be considering a claim against the seller?
Many thanks.
Thank you for your comment.
There is no obligation on a seller to volunteer information or even respond to enquiries. However, by not doing so the buyer may become suspicious or unwilling to commit to a purchase.
If information is to be supplied, either voluntarily or in response to questions, the seller should be careful not to mislead.
As for a claim against your own seller, the basic position is that if the seller said something, as a matter of fact, which was untrue and you relied on it when entering into the agreement to purchase the property, there would be the potential for a claim. As to whether it would be financially viable would depend on the value of the claim.
The damages awarded in most misrepresentation claims would be based on diminution in value. This is the difference between what the property was worth and what someone at the time would have paid for it knowing about the issue in question. This is something that input from a surveyor would be required on.
In 2020 We bought a Victorian property(1860) which had a small rear extension (2007). The garage was also converted without proper planning against which we have an indemnity insurance. We had a pre purchase drain survey with map and cctv. We recently had a drain blockage and discovered a broken trap, during this process the plumber called the water company to report a potential misconnection- where the waste from the extension and garage may not be connected to the correct sewer. This is to be investigated by the network engineers. There will be a significant cost to redirect the waste to the appropriate sewer if this proves to be the case. Do we have recourse to the drain surveyors ( NACD members at the time in 2020), do we have recourse under the property declarations or searches made by the conveyancing and do we have recourse to the previous owners who may not have had correct permissions or not completed correct connections on drainage for their extension? The extension was completed in 2007. No misconnection was identified on the survey, no misconnection was identified by two Thames water inspectors either but because the plumber flagged this we are now waiting for the network engineer to confirm .
Thank you for your comment.
Fundamentally when considering any claim, it is necessary to apportion “blame” and show that there was a causal connection between what someone did or did not do and the loss you suffered.
In plain English, unless your seller told you that there was no issue, and things like this are not often discussed between a buyer and seller, there there is unlikely to be a claim.
As for the searches, whether or not there is claim against the search provider will depend on whether or not their report is accurate and whether or not the issue in question should have been identified. The same is true of the surveyor and this would require a consideration of the surveyor’s retainer, this is what the surveyor agreed to do for you. If they were not required to check for this issue, then they cannot be held liable for it.
I have purchased a property in May 2022. The seller stated on the property information that alterations have been made(ensuite) and ticked yes on having all relevant approvals. On the home survey , the surveyor stated that a staircase was installed to the attic yet the seller never mentioned that as alteration, but they sent to us (upon request) a letter from their architect stating that staircase was changed like for like and the council inspected the property and they confirmed no more approvals were required. My solicitor suggested holding 10k as retention fees till confirmation from the council would be provided . After 6 months we got the retention fees as they didn’t get us come back to us. 4 months after, I came to know from the council that, the seller had two applications to approve the staircase and the ensuite but both were disapproved being non compliant to building standards. Now the council is threatening me as the new owner if I didn’t legalize the problems , they would put a notice on my property and the accused my solicitor for not doing his due diligence and confirmed that they advised the previous owner that they can’t sell the property till they make things right but they didn’t issue a notice on the property that time because the seller had an application open. My question is , what shall I do, who shall be held accountable, is my solicitor guilty either totally or partly, shall I seek litigation advice for a claim, will be covered by my home insurance legal protection policy, and importantly, shall I call my lender and discuss the matter further with them? Thanks
Thank you for your comment.
You probably should check with your insurers if you believe that you have appropriate cover in place.
With respect to any claims against the seller, this will depend on the contractual terms you agreed (although these are often fairly standard) and precisely what was said about the situation. In short, if the seller has said something that is misleading and factually inaccurate, you relied on this when entering into the contract and it has caused you a loss, then there would be a claim for misrepresentation. Put another way, if it can be said that the seller told you, as a matter of fact, that all necessary approvals had been received and they had not been, you may have a claim for misrepresentation.
Generally a statement about the legal position of something (a statement of law), for example that the works undertaken were legally compliant with relevant legislation, would not be actionable. However, following the case of Pankhania v LB Hackney [2002], it is sometimes the case that an inaccurate statement about the legal position of something is considered to be a statement of fact, and therefore actionable.
As for your solicitor or surveyor, any claim here would be based on professional negligence. Broadly, it would be necessary to consider the scope of the retainer (that is whether or not advice about the points in question was part of what they agreed to do for you) and whether or not the advice given complied with the requirement to give advice as a reasonably competent professional in the same position would have done. From this, a decision could be made as to whether or not your solicitor, surveyor or both should have warned you about the issues you are now experiencing or taken alternative steps.
Please do feel free get in touch if you would like to consider the matter in detail.
Hi
We found that a flat we are hoping to purchase has some amendments without a valid building control certificate present. All after placing an offer, arranging a mortgage and half way through solicitors checks. Before coming out with an offer, we asked estate agents whether the property has any alterations or structural defects to it, to which they answered no on several occasions. Submitted forms TA6 and TA7 state that there are no alterations to the property, however just very recently we came across some past sales images online, clearly showing the alterations took place in this very property .
Is there a claim for us for the costs incurred so far eg. solicitors, survey, valuation, bearing in mind that not only estate agents said there are no alterations and no issues with the building whatsoever, but also owners appear to “not know” about them as stated on the forms TA6 and TA7. We are aware that there are circumstances where building control is not required, and that sometimes landlord can allow for such works to take place. If however there is no sign of anyone knowing about the works, do we have a valid claim to recover the costs incurred so far, having entered into the proceedings in good faith? Luckily we are not after exchange or completion, so assume if things were to come out worse than expected, we can just pull out of the transaction all together? Would appreciate your comments – thank you!
Thank you for your comment.
If you have not exchanged contracts, then there is no contract to breach. Likewise there would be no claim for misrepresentation because you did not rely on anything the seller said when entering into the contract. It is quite unlikely that there would be any basis of claim in relation to the costs you have incurred in investigating the property.
We purchased a house in August 2022. The legal paperwork stated the following;
– The property would be empty when we completed
– The stop tap was located under the kitchen sink
– The rent on the garden (£40 a year, rented from the local Parish) had been paid as it fell due in June or July of 2022 and we had agreed a completion date of 12.08.22
The estate agents floorplan also stated the cupboard under the stairs was just that, a cupboard.
Upon completion and entering the property for the first time, we were greeted with a lot of the previous owners furniture they had not taken with them. I have photo evidence.
We couldn’t move in to the property due to there being no space for our belongings.
A couple of days later whilst still cleaning and removing furniture from the property, we needed to locate the stop tap to enable us to plumb in the washing machine and test it. Heading to under the kitchen sink, we found no stop tap.
After several hours (I wish I was joking!!) of hunting down this stop tap, we’d almost given up. Out of desperation, I suggested we look in the cupboard under the stairs. This took time as we had to remove more of the previous owners junk they’d decided to leave piled up in the cupboard. Only for my husband to response with, ‘what the f**k’…
Looking in the cupboard, I understood his response. There were crudely placed loft boarding across old wooden beams concealing an entrance to a cellar we knew nothing about.
We know the previous owners knew of this, as this is why they falsely claimed the stop tap to be under the sink, instead of on the stairs to the cellar and found more of their junk in the cellar.
Where do we stand legally with this?
During the course of a conveyancing transaction, the seller will normally agree to give both vacant possession and leave the property in a reasonable and clean state. If this has not happened then there is possibly a claim for misrepresentation. In short, you would need to show that the seller misled you by stating that they would leave the property in a reasonable state of repair and remove all of their belongings (i.e. vacant possession) and that this statement was false. You would also need to show that you relied on that statement to some degree when entering into the contract.
If this has happened, then you may have a basis of claim.
Hello. I write because I think there is something very misleading taking place.
A piece of land has very recently been sold in our village. Within days the same piece of land came back on the market to be sold by auction.
Originally the land was sold with a AHA tenancy , now however it is being sold by the new owner as full vacant possession possibilities for equestrian, sporting activities even building.
However living in a small village I know the farmer who still holds AHA tenancy.
The land is also being sold on another site divided into 6 plots . On this site granted there is no mention of full vacant possession or AHA.
Surely all of this at best is not right?
Thank you for your comments. I am afraid that this is not something that we can comment on, as this blog is centred on misrepresentation claims between a buyer and a seller. It sounds like the matter relates to planning issues and whether or not the Agricultural Holdings Act tenancy has or has not been brought to an end.
I bought a leasehold property with an agreement that the seller will extend the lease on completion. property completed and seller solicitor confirmed that the lease extension took place on same day. My solicitor waited for the new lease documentation which wasn’t forthcoming and later found out that the lease extension never too place. I am now left with a much less lease than I agreed to buy and new lease review with higher rent than anticipated.
My solicitor said I can sue the seller for breach of contract/specific performance but they are struggling to find the forwarding address for the seller.
Can you advise?
Thank you for your enquiry. The circumstances of your matter sound questionable and worth investigation. There may be two bases of claim here.
The first may be a claim in contract against the seller, depending on the terms of the contract agreed between the parties. If a lease extension was to take place, it may very well be important for an appropriate contractual clause to be included in the special conditions of the conditions of sale.
Secondly, there may be a claim for misrepresentation. If the seller led you to believe that a lease extension would be taking place and it transpired that that representation was false, then you may be able to bring a claim against the seller.
As to whether or not the solicitors could be said to be at fault, this depends on a number of circumstances. As mentioned above, you would ordinarily expect some sort of contractual agreement to be in place if a lease extension had not completed prior to exchange of contracts.
Please do feel free to get in touch if you would like to explore the matter in more detail.
I purchased a ground floor flat, which is a share of freehold (FH) in Jul-22. There are two other freeholders for this building, one in the basement flat and one above in the first floor flat, which is let out to tenants.
Our lease requires the floors to be covered with carpet and underlay. Upon moving into my flat, I found out that the flat above has wood floors, which creates very loud noise from the residents upstairs. After raising the noise issue with the freeholder of the 1st floor flat, I found out that the previous freeholders had signed off on refurbishment work requested by the freeholder upstairs, which included a change to the flooring from carpets to wood flooring among other refurb work.
I’ve been informed by the first floor freeholder that they are now under no legal obligation to change the flooring back to carpet. Further information has come to light after I moved in that the previous occupier of my flat had complained to the neighbours/freeholder upstairs about the extreme levels of noise and also about the flooring not being ‘fit for purpose’ due to the noise after completion of the renovation works. It was affecting their health as they were unable to sleep with the neighbours walking around on the loud flooring at all hours of the night. This initial complaint was made a few months prior to the sale of the property in Jan-22 with the sale being completed in Jul-22.
On both the TA6 and TA7 form, the seller had ticked ‘No’ to the questions about having any disputes or complaints about a property nearby or about any neighbour. Would answering ‘No’ on two different forms asking about whether they had made complaints to their neighbour about the noise from the property’s flooring upstairs, constitute a misrepresentation? Also would an email to the neighbour/freeholder constitute a complaint as implied by the TA6 and TA7 forms?
I had relied on these forms and the responses made by the seller have turned out to be untrue. I am unable to live or sleep in my own property due to this information that was withheld to me during the purchasing process. I would need to disclose this noise issue/complaint that I’ve also made to the tenants/freeholder upstairs when I come to sell the property. I feel like the value of my property has diminished due to this ongoing dispute at the time of purchase and it is likely to be very difficult to sell this property in the future. What options are open to me?
Thank you for your comment.
You in fact raise to potential issues to address.
Firstly, there may be a claim for misrepresentation if the seller said that there had been no disputes with neighbours but there had been. In the standard TA6 property information form, there is also a question about whether or not the seller is aware of any issues that could give rise to a dispute.
The term “dispute” is of course subjective, as is the term “complaint”. What is a dispute or complaint to one person is merely a minor disagreement to another which would not have any impact on their decision to purchase a property. This was the precise issue in one case that we have referred to in our blog on misrepresentation claims in practice, here… https://cunningtons.co.uk/property-misrepresentation-claims/ The seller alleged that the dispute had been resolved but the Court considered otherwise.
The courts apply a common sense approach to the questions and answers in the property information form. This is because they are designed for individuals without legal knowledge to complete and read. Ultimately it would be a question of whether or not a Court considered that there was a dispute or not. Clearly the more serious the issue is and the more contentious that matter had become, the more likely the Court would be to find that there was a dispute.
As to your loss, this would be something that a suitably qualified surveyor would have to be instructed to advise on. This would normally be based on diminution in value, which is the difference between what was paid for the property and what it would be worth with the “defect” complained of.
The second point you have indirectly alluded to is in respect of the leases. It is not uncommon for leases to contain mutually enforceable rights between leaseholders to prevent nuisances and the like. Subject to the terms of the lease and what was agreed in respect of the works, there may be a basis to allege that the other lessee is in breach of a covenant in respect of not causing a nuisance and annoyance or, possibly, in breach of the requirement to have carpeted floor, notwithstanding what appeared to be a waiver of this requirement previously.
Hi , me and my husband bought a house on a auction that was advertised for 0.5 acres and on the google map measurements it shows 0.33 acres . The difference until 0.5 is on adverse property that the seller made an application to have it on his name ( because he used that land for 40 years ) . They advertised property with a small movie and pictures omitting to say that not all the land comes with the house .
Do we have any legal rights to challenge them for misleading ???
Thank you for your comment. While we are unable to give specific advice at this stage without having seen all the documentation, there is no duty to volunteer information about a property sold at auction or otherwise unless it is in relation to a defect in title. However where information is volunteered, it must be true. If false information is given, and you rely upon it and are entitled to rely upon it, and lose out as a result, then this can form the basis of a claim. The question therefore is whether the advertisement saying it was 0.5 acres in width is a false statement, and also whether the fact that legal title to the property was gained via adverse possession is a defect in title that needs to be disclosed.
Regarding the measurements of the land. The Google Maps measurements are not necessarily correct. It would require a proper surveyor’s report to show it is an incorrect measurement. It would also have to be shown that the contents of the advertisement were something you could rely upon. Often auction property contracts are heavily locked down and contain lots of exclusion and non-reliance clauses and as such bringing a claim against a seller at auction is difficult as you will have to circumnavigate those clauses. In addition there is the question of what, in fact, you have lost as a result of this. Therefore, while there may be something open to you in terms of a claim it is difficult to determine without having seen all the documentation.
I have agreed to a completion date of less than a month from now on the purchase of a house. On the first viewing of the property the estate agent pointed out that the garden was south facing and the seller also stressed the advantages of having a south facing garden. The searches recently revealed that the garden actually faces north east and this is a great disappointment to me as gardening is my passion.
Since this is an aspect of the property that cannot be changed, can I claim a reduction in the price for misrepresentation? I am a cash buyer who agreed to pay the asking price to start off with.
Drains
When the sellers were informed that I wanted a survey done on the building they offered to give me a survey report that they had carried out one year previously when they were buying the property. The report referred to the drains being partially blocked by builders builders rubble. The sellers informed me that the problem has been resolved and I organised another drain survey to ensure that the work had been carried out properly.
The second survey revealed that although the debris had been cleared , the way the drains had been built debris from the ensuite bathroom was gathering at one point of the sewer and could possibly lead to flooding. Furthermore, another drain from the property has been affected by the roots of shrubs growing next to the manhole. The drain surveyor has recommended that the drain pipe should be lined to avoid further damage by roots and that the manhole cover should be cemented in to avoid the possibility of flooding should a blockage occur.
What would you advise me to do regarding getting the drains repaired ? The sellers are pressing me to complete but I do not want to exchange or complete unless the issue of the drains have been resolved.
Thank you for your help .
Thank you for your comments.
We cannot give specific advise on our website, only general guidance which shouldn’t be considered a substitute for properly considered legal advice.
If you have not exchanged contracts, there is no basis of claim at all. What the parties choose to negotiate and why is up to them. What we would say if that a particular point is of importance, a contractual term should be negotiated.
Based on what you say about the garden, we consider it unlikely that you would be able to bring a misrepresentation claim, not least that there is no contract in place if you have not exchanged. If there is no claim, it is unlikely that you would have the leverage to renegotiate the terms of the contract.
On the assumption that you have exchanged, firstly, we would have expected searches to have been completed and reviewed prior to exchange of contracts. If contracts were exchanged prior to considering these, if we were in the sellers position, we would be arguing that the loss you have suffered is, in part, due to not taking the search results into account when deciding whether or not to enter into the contract.
Secondly, we are not aware of any questions in the standard property information from that relate to the direction that a garden faces. Normally it is a term of a contract of sale for residential property that only representations made in writing and passing between the parties and their solicitors are capable of being relied on. This is to deliberately exclude any possibility of later arguments arising about what was said and when. If you were told orally that the garden faces south, you may find that you have contracts agreed not to pursue a claim for misrepresentation based on this.
As for the drains, you would not have a misrepresentation claim if you have exchanged. You did not rely on what the seller said, you relied on your own enquiries.
In summary, if you have not exchanged and just agreed a preliminary completion date, it is a matter of contract and negotiation as to what is to be agreed. If you want to ask for a discount on the sale price to take account of the direction the garden faces, this is your prerogative. If you want to negotiate a discount based on what you think the cost of the works for the drains might be, or even ask the seller to undertake work themselves, again, this is down to the bargaining positions of the parties. The seller is not obliged to agree anything.
Hi. I bought a house just over 5 years ago asking how the neighbours was as I have a son. Anyway was told everything was fine. Later we found out my neighbour stabbed her ex partner and lived with pure hell. As well as me and my partner being threatened with a knife. Unfortunately she also owns her property and is a pure alcoholic. My case is why wasn’t we informed that all this and other incidents happened before we bought the house and was never informed as I would never had purchased the property if we knew this.
We are sorry to hear of this. As to whether or not there is a misrepresentation claim would depend on the terms of the contract. Most of the time, the contract would exclude liability for oral representations. Normally, only representations of fact, in writing and between the parties or their solicitors, are actionable. This is a standard contractual clause to ensure that there is no misunderstanding between the parties and that everything relevant to the transaction is committed to writing.
Further your case has similarities to the case of Sykes v Taylor [2004] which we mention here. In that case, the Court held that when the seller answered “No” the broad question about whether or not there was anything they thought the buyer ought to know about, when in fact there had been a murder in the house, the Court considered that this was not a misrepresentation. The answer to your query could be considered equally subjective, creating risk in any claim. There may be a case (although you would have only six years to pursue it) but it depends very much on precisely what you asked, what you were told and what the seller experienced.
Would this apply if the seller placed the house on the market and then agreed to a sale knowing that information relied on by the purchaser was false. The purchaser proceeded in good faith to spend money on legal fees, surveys etc. And due to the passing of time when the false information came to light the purchaser had no choice but to rent a property (as theirs was due to complete) incurring storage and rental costs which would not have been required) The misrepresentation was the house was listed and had no listed building consent for any works or a barn conversion. This was not disclosed and on the Property Information given by the seller it said no works requiring LBC had taken place. Other information was also not disclosed.
For any misrepresentation claim to exist, a contract must be entered into and the contract must be entered into because the seller relied solely or in part on what the seller said. From what you have said, it sounds as though by the time you exchanged contracts, you were aware of the issues. It cannot therefore be said that you were induced to enter into the contract by reason of something that the seller said which was factually inaccurate; you knew what the position was when you exchanged contracts.
Hi. I have recently purchased a property which has since faced subsidence issues in the first three months of our ownership. My insurers are requesting the previous owners insurance details which I am told is standard practice but they are refusing to provide us with the details. Do I need to take them to court to obtain this? Thanks
Thank you for your comment. We cannot really advise on the practice of any given insurance company, but if they are unreasonably refusing to indemnify you for an insured event then, subject to the terms of your policy, you may be able to take some action against the insurer.
As for the seller, we do not believe that there is an obligation on a seller to provide historical information regarding insurance. Unless this was a contractual term you agreed with the seller, we think it is unlikely that you would get very far with any claim.
However, sometimes it can be appropriate to approach a third party that has information regarding a possible claim and if necessary, apply for a third party/non-party disclosure order from the Court. We cannot really say whether or not this is an appropriate step to take without knowing more.
It might be that the insurer is considering trying to obtain details from you so it can suggest that you were aware of the issue and therefore try to decline to indemnify you on the basis of a material non-disclosure. It could be that the insurer is considering a subrogated claim against the seller. A subrogated claim is a right that an insurer will generally have that they can use to pursue the person that caused you, and therefore them, the loss.
Whilst we cannot give you any specific legal advice here, we would probably suggest you ask your insurers on what basis they are asking for the information (it could be, for example, pursuant to a contractual term of the policy). It may be that you need to explain that you have asked but the seller will not provide this. This is something that they would probably need to be told in any event, as you would not want to incur the cost of any sort of Court application without first checking that the insurer will not take a view on their position. We would need to see all of the documentation and correspondence in relation to the matter to form a view.