Annual Report: A Basement Bar? Requirement to Disclose Under CPRs

The property in question was located in a disused warehouse which was in the process of being converted into residential apartments. The buyer believed that the agent failed to disclose in the sales particulars and during the viewing that the basement of the building was used as a nightclub.

The buyer explained that the entrance to the nightclub was concealed from view and she was therefore unaware that the basement was being used for this purpose until she received the mortgage valuation survey. She said that she was unable to obtain mortgage funding for the apartment due to the commercial aspect of the building and so was forced to withdraw from the purchase. The buyer was looking to recover her £5,000 reservation fee which she paid to reserve the property.

When marketing the property for sale, the agent had an obligation by law and under Paragraph 7i of the TPO Code of Practice to comply with the Consumer Protection from Unfair Trading Regulations (CPRs). The CPRs required the estate agent to disclose any material information of which they were aware in relation to the property in a clear, intelligible and timely fashion. All reasonable steps should have been taken to ensure that all statements made about the property were accurate and not misleading. The agent also had a duty not to mislead the buyer by failing to give her the information she needed in order to make an informed decision. This might have occurred if the agent left out or hid material information.

Information about the premises on the internet showed that the unit housed a bar rather than a nightclub. A commercial bar located in the basement of a residential property constituted material information which could potentially have influenced the buyer’s decision whether or not to make an offer to purchase the flat.

The close proximity of the bar could have posed issues for residents due to noise disturbance. Whilst the Ombudsman did not consider that the presence of the commercial unit would deem the residential property un-mortgageable, it may have been a problem for any mainstream mortgage lenders. The agent had an obligation to ensure that all prospective buyers were aware of the bar located in the building at the earliest opportunity, before they were financially committed to the transaction and, as a matter of best practice, the agent should have stated in their marketing materials that the basement of the building contained a commercial unit which was being used as a bar.

It was also clear that the entrance of the bar was concealed. It appeared that access was gained via a telephone box and was not easily identifiable to prospective buyers.

If information about the bar was not included in the agent’s marketing materials then they should have highlighted the fact during viewings. The agent claimed that they did just this, but the buyer said that this was not the case and they did not find out about the bar’s existence until she received the mortgage survey. In cases where parties provide different accounts of an event, the Ombudsman makes a judgement on balance of written evidence present, the agent’s obligations and what is considered to be fair and reasonable in the circumstances.

The onus is on the agent, as a TPO member, to demonstrate that they acted in accordance with best practice and their obligations under the CPRs. If the agent had, as they said, informed the buyer about the bar during the viewing, they should have also confirmed the information in writing. There was no evidence that they did so. Paragraph 1h of the Code of Practice required the agent to keep a written record of the transaction and produce it upon request by TPO.

Outcome

The Ombudsman supported this complaint and considered that the circumstances merited an award in compensation for the undue and avoidable aggravation caused by the agent’s failure to demonstrate that they acted in accordance with best practice and their obligations under the CPRs. However, it did not appear that the presence of the bar was an immediate concern for the buyer as she had investigated funding the purchase via another means before withdrawing from the transaction, several weeks after receipt of the mortgage survey. The buyer’s preferred lender was unwilling to provide mortgage funding, but there was no evidence to substantiate that the property was un-mortgageable. The buyer signed a reservation form which clearly stated that the reservation fee was non-refundable if she withdrew from the purchase, and was aware of these terms at the time she was financially committed to the transaction. The agent did not hold these deposit funds. The Ombudsman did not direct the agent to refund the reservation fee; a request for a refund would need to be directed to the developer.

Accordingly, an award of £500 in compensation was made. This was in full and final settlement of the dispute.