Cultivating the Boundries
Complaint
Following her successful purchase of the property, Mrs D, the buyer, complained that the Agent had failed to disclose that that the sellers did not own the entire garden (as depicted in the sales particulars) and were, at that time, in the process of obtaining possessionary title for the land that they did not own but which they had cultivated as their garden.
Investigation
The Agent accepted that the sellers had made them aware of the circumstances pertaining to the garden before they prepared the sales particulars however, they argued that both the Property Misdescription Act (PMA) and the sellers’ approval of the sales particulars mitigated their responsibility to disclose this information. I did not agree and pointed out that as of October 2013, the PMA was no longer in existence. However, I also noted that Mrs D had proceeded to purchase the property despite having been told by the sellers during the first viewing, that they did not own the entire garden and that they had not yet obtained possessionary title.
Outcome
I was critical of the Agent’s failure to clarify the circumstances of the garden in the sales particulars, in accordance with what they knew and their responsibilities under Paragraph 5h of the TPO Code of Practice. However, as Mrs D was aware of the issue from the outset, I was not persuaded that she had been misled by the sales particulars to the extent that she had relied on the accuracy of the description of the garden when she took the decision to make an offer for the property. I supported the complaint and made an award of £200.
Learning
Whilst the Property Misdescription Act previously provided agents with the ability to withhold information unless specifically asked, the Act’s repeal and the enforcement of the CPRs means agents can no longer operate in this manner. If information is known which is clearly significant to any potential buyer, it should be disclosed at the earliest opportunity. In this case, clarification regarding the title issues of the garden should have been included in the sales particulars.