People in the UK buy and sell residential property everyday. Whilst it is often a stressful process, the buyer and seller usually complete the transaction, and both go their separate ways – happy with the outcome and looking forward to living in their new home. However, unfortunately additional problems only become evident after completion has taken place. It would therefore be for the new owner to resolve any such issues.

On occasion though, it may be apparent to the new owner that the seller knew of these issues before selling the property, and lied or misled the buyer during the conveyance. This is called ‘misrepresentation’. Will Bartley is a specialist property litigation lawyer here at Porter Dodson, and he discusses this issue below.

What is ‘misrepresentation’?

In simple terms, misrepresentation can be described as misleading someone into believing something that was not true. In respect of property transactions, this could be failing to disclose a previous neighbour or boundary dispute; previous flooding issues; or previous issues with works at the property or in respect of its structural integrity, for example.

If the seller has made a false statement of fact, typically within the conveyancing correspondence or on the ‘seller’s information form’ (TP6), then the buyer may have a valid claim of misrepresentation.

There are three different types of misrepresentation, being fraudulent, negligent, and innocent. The difference between them usually results in the level of culpability attributed to their actions/inactions, and would therefore likely impact on any remedial action/financial award that they would be liable for.

The seller has misled me on the TP6 – what can I do?

If a new owner notices that there is an issue with the property, for example a boundary dispute or previous evidence of damp/flooding, then they should undertake suitable investigations as to the cause, origin and timeline of the issue. Once this has all been identified, it should be clear whether the nature of the dispute existed prior to your purchase, and whether the seller would have reasonably known about it.

If for example your new neighbour approaches you on the boundary line and states that they have an issue with where the fence is, and that they exchanged unresolved correspondence with the seller prior to the sale, then it’s a good bet that the seller should have disclosed this information during the conveyancing process. It would be important to revisit the TP6 and any correspondence that your conveyancer had with the seller and their solicitors, to ensure that it is clear what they said on the matter. If you believe that you have been misled, or that the seller should have disclosed something to you that would have impacted on your decision to proceed with the purchase, then you should instruct a solicitor (we would be happy to help) in writing to the seller regarding the misrepresentation claim.

What would happen if there has been a misrepresentation?

We would write to the seller, setting out the dispute in what’s commonly called a Letter Before Action (LBA). This would essentially be a Court-compliant letter, explaining the issues that you have discovered, and alluding to the fact that you believe that the seller misled you during the transaction.

You would typically be seeking the remedial costs of rectifying the issue, both now and in the future. We would therefore look to include evidence of the remedial quotes/invoices that you have received from qualified professionals and contractors, proving your losses and requesting reimbursement accordingly.

For misrepresentations that don’t have a financial loss as such, the Court can award other remedies based on the circumstances of the case, including rescission of the sale (although this is rare and based on specific circumstances).

Would Court action be needed?

If the seller fails to reply, or fails to suitably acknowledge and engage in the settlement process, then Court proceedings may be needed to resolve the dispute. We can represent you throughout the process, from the initial review of the TP6, all the way through the LBA and Court process. If you feel that you have been misled during your purchase, and that you have suffered a loss, or are likely to in the future, then please get in touch.

Specialist advice

Please note that advice in respect of misrepresentation is very case-specific, and therefore the above is simply a guide as to the process and common questions that we get asked. We recommend that you take specialist legal advice if you have a misrepresentation question.

Porter Dodson’s specialist Property Litigation department would be happy to assist with such enquiries.