Is the term buyer beware still relevant?
Historically, the buyers in a conveyancing transaction have been responsible for satisfying themselves on a property’s suitability. Now, the situation is more complex. There is more legal protection in place for buyers, who also now expect greater transparency. If you are selling a property, it is important to provide the correct information, and to get the right advice about any problems.
What information must I give to potential buyers?
Firstly, you must disclose any latent title defects of which you are aware. A ‘latent’ defect is one which the buyer could not reasonably discover from inspecting the property. For example, a right of drainage or a restriction affecting the use of your home.
Secondly, the Consumer Protection from Unfair Trading Regulations 2008 places anyone acting as a business under certain duties which include not withholding information which the buyer may need to make an informed decision. While you may not be a business, the regulations apply to your estate agent and solicitor including to statements they make on your behalf.
Discuss any issues with your estate agent and solicitor early on. This will enable them to give you the best advice and will help your transaction to progress smoothly.
What information should I disclose when selling my home?
While the doctrine of buyer beware remains relevant, a rigid reliance on it may not help your transaction. Most buyers will expect you to provide information about your home, and replying to their solicitor’s enquiries is an established part of the conveyancing process.
There is a standard form for initial enquiries (the TA6) which your solicitor will ask you to complete, covering topics such as boundaries, insurance and whether you have had any disputes with neighbours
It is not a legal requirement to complete the form, or to answer all the questions. But, refusing to do so may raise suspicions and could delay or even jeopardise your sale.
What if there is something that may put off my buyers?
It is important to discuss any concerns with your solicitor early on. Do not be tempted to lie or tell a half-truth. If you do, and the buyers rely on that statement, you may be liable for misrepresentation. In a worst-case scenario, your buyers could reject the contract and you may have to pay them compensation. Misrepresentations can be oral as well as written statements; or even something you do, like removing a fixture, such as a paving slab, which was present when your buyer viewed the property.
A cautionary tale
Omitting or tailoring your answers to give a more positive outlook can backfire. For example, in Morrell v Stewart, the sellers had problems with foul water drainage. The Environment Agency became involved. Although the sellers told the Environment Agency they had solved the issue, their remedial works were insufficient.
In their precontract enquiries, the buyers’ solicitor asked the sellers if they had had any negotiations with any authority which affected the property. The sellers said they had not. The buyers’ solicitor also asked them if they had carried out any recent plumbing work or tested the drainage, to which they replied there had been no re-plumbing work or testing during their ownership.
After completion, the buyers discovered effluent overflowing and sued the sellers, seeking compensation.
In their defence, the sellers said they believed they had resolved the drainage issue and that the question about re-plumbing related only to internal work. However, the judge did not accept their argument and awarded £33,000 in compensation to the buyers.
The judge remarked that even if the sellers believed the drainage issue resolved, they should have disclosed it and the remedial works. The buyers could then have made an informed decision whether to proceed.
Unfortunately, the works had fallen short of the required standard. However, if the sellers had engaged the right professionals, who could have provided a warranty for the satisfactory completion of the works, and disclosed this to their buyers, the outcome may have been more positive.
How can my solicitor help me?
If there is something you think may concern potential buyers, talk to your solicitor. They can advise you on the best approach, one which will not expose you to unnecessary risk while hopefully reassuring your buyers.
Fortunately, most property related issues are not as messy as the one in Morrell v Stewart. Often there will be a relatively straightforward solution. For example, if there is a technical breach of planning or building regulations, it is usually possible to buy an insurance policy to satisfy any concerns.
Is there anything else I should know?
Yes, you should start organising your property information as soon as possible. If you want to sell your home, talk to us. We can explain what is needed to complete form TA6 and discuss any concerns you may have.
In England and Wales, a sale takes on average 150 days to complete, and the Government believes that providing more information upfront will speed up conveyancing and reduce the number of transactions falling through. We can help with our Contract Ready service. Being Contract Ready is having the legal property documents required for a house sale ready in advance of marketing the property and agreeing the sale. This will help with transparency of information, helps the buyer to make an informed decision and reduces the time between an offer being accepted and an exchange of contracts. It will also help to address any issues at the outset so can boost the chances of your sale completing smoothly and quickly.
How we can help
For further information, please contact Cailan Thomas in the Residential Property team on 01223 463185 or email [email protected].
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Cailan Thomas LLB, Solicitor
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