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    The Seller's Replies to Enquiries and Misrepresentation

    As you shall recall from the previous blog ‘Buyers Beware’ that the purchaser does have to rely on his/her own investigations, surveys and inspections to ensure that they are satisfied with all aspects of the property that they are purchasing. However the law does not let the seller escape so lightly either and the risk of a potential claim of misrepresentation does shadow the seller. Misrepresentation is a false statement of fact which in part induces another individual to enter into a contract.

    A seller has a duty to disclose accurate information in the course of a sale and failure to provide information within the sellers’ knowledge will be deemed to be misrepresentation and cases taken to court have found that the Court will find against the seller. In the case of Morris V Jones [2002] an enquiry was raised by the buyers’ solicitors about damp and the seller replies that other than work carried out by a guarantee there was none to the sellers knowledge but that the buyer should rely on his own survey. The buyer indeed proceeded with a survey which found damp but the seller was still liable as he failed to disclose more sever damp which was within his knowledge.

    In a further case of McMeekin v Long [2008] the seller did not disclose a neighbour dispute despite this information being specifically requested and the damages that were assessed by the court for this misrepresentation were assessed at £67,000.

    However the seller is not in the all clear if they do not know the answer to an enquiry addressed to them and it is not advisable to simply answer ‘not known’ or ‘not as far as we are aware’ as these responses may be interpreted that the seller has made an attempt to find out and once again may lead to a potential action of misrepresentation. To err on the side of caution it is advisable for the seller to generally disclaim their response by adding ‘no investigations have been made by the seller’.

    An alarming fact is the length of time that action can be taken after a sale has gone through. The normal time frame to bring a claim is within six years following exchange of contracts. However buyers can actually bring proceedings within three years of discovering an issue which may consequentially take this beyond the six year rule and the official cut off point is 15 years after the sale

    Therefore the best course of action for a seller is to be honest and always tell the truth as this is the best course of action during the sale of a property. Failing to disclose or keeping things under wraps could be a costly mistake and may rear itself in the future.

    If you need any help when buying or selling a property do not hesitate to contact our property team, who are always happy to help.

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