During the conveyancing process, the seller of a property will generally be expected to provide a vast amount of information to the buyer, for example in relation to historic disputes, utility services (including electrical and gas inspections), flooding, third-party occupiers and any works that have been carried out.
Those replies are, in the first instance, provided by way of replies to standard Law Society forms, including a Property Information Form (‘Form TA6’) and, if the property is leasehold, a Leasehold Information Form (‘Form TA7’). The information provided by the seller in these forms will be assessed by the buyer’s solicitor, who will then raise any additional enquiries that they consider appropriate, where any further clarification is required.
The standard provisions of a contract for the sale of a residential property will provide that a buyer is entitled to rely on statements given by the seller (for example, in their replies to the standard forms) as representations which induce the buyer into the contract. As such, any false or untrue statements given by a seller could give rise to a potential claim for misrepresentation, if the Buyer suffers loss as a result of an incorrect statement that they had relied on.
Downing v Henderson (2023)
The importance of accurate information being provided by a seller was further highlighted earlier this year, in the case of Downing v Henderson (2023).
This case involved the sale of Mr Henderson’s house, for a price of £700,000, to Mr Downing. In response to the standard questions in the Property Information Form, Mr Henderson answered ‘no’, rather than ‘not known’, when asked whether or not the property had been affected by Japanese Knotweed. However, when Mr Downing moved into the property, he discovered the existence of Japanese Knotweed stems at the back of the garden.
Mr Downing appointed independent experts to investigate the matter further, and the experts found evidence that the Japanese Knotweed had previously been cut back, and had been treated (although this work was not necessarily carried out during Mr Henderson’s ownership of the property). Mr Henderson put forward a defence, claiming that he had not been aware of the Japanese Knotweed at the back of the garden in the three years that he had lived at the property, and he had not been made aware of the existence of the weed at the time of his purchase. This argument was, however, dismissed by the Judge.
As a result, the Judge ordered Mr Henderson to pay to Mr Downing damages in the sum of £32,000 (relating to the reduction in value of the property, and the costs of investigating and excavating the Japanese Knotweed), along with costs of £95,000 for his misrepresentation.
What approach should buyers and sellers take?
Whilst the case of Downing v Henderson (2023) specifically related to information provided in respect of Japanese Knotweed, the implications of the decision could be far more wide-reaching, as the Courts are likely to apply a similar approach to other incorrect replies provided by a seller too, where false statements have been made or additional information should have been disclosed.
Sellers should take care to ensure that they do not give a definitive answer of ‘no’ in response to questions that they are unsure of, or where they do not have sufficient information. It is also crucial that sellers disclose any information they hold which may impact a buyer’s decision to proceed with the transaction.
A prudent buyer should carefully consider the information provided by the seller, and raise additional enquiries in the event that further details are required. If the seller is not able to provide a definitive answer on a particular matter, further investigations should be carried out by independent experts in order to ensure that any potential remediation works that may be required are identified prior to completion.
At Boyletts Law, we understand that your decision to buy or sell your home, or an investment property, can be an overwhelming and stressful experience. Our aim is to ensure that the process remains as exciting and stress-free as possible, from start to finish. If you are looking for a conveyancing solicitor, please give us a call on 01279 295047 or complete our enquiry form and we will be in touch.