An Undropped Kerb - Misleading Action
Complaint
After purchasing the property Mr and Mrs F began to experience problems with other drivers parking in front of their property and blocking their access to the hard-standing in their front garden where they parked their car. After investigating the matter with the Highways Department, it became clear that unless the kerb was dropped, other drivers were entitled to park in such a manner which restricted access. Mr and Mrs F noted that the property particulars referred to the property as benefitting from off-street parking, yet the Highways Department had informed them that it was illegal to drive over a pavement where the kerb had not been dropped to access the space. They subsequently complained to the Agent, seeking the cost of dropping the kerb as compensation.
Investigation
In their response to my Office, the Agent referred to their general disclaimers on the sales particulars and asserted that Mr and Mrs F should have known about the kerb as they had viewed the property three times before purchase and, in any event, it was their solicitor’s role to establish the legal position regarding access to the parking area. I observed that not only had the Agent’s sales particulars expressly stated that there was off-street parking but that one of the pictures showed a car parked on the hardstanding. Further, the Agent’s file recorded that they had sent the sales particulars to the seller to be signed off, yet had either received nor chased for such authority, contrary to the requirements of the TPO Code of Practice.
Outcome
In my view a parking space which cannot be legally, or reliably accessed due to competing
rights from other highway users, cannot reasonably be described as off-street parking without some clearly stated qualification to draw attention to its limitations. The Agent was the party with the professional expertise and the obligations this entails. Whilst not universal knowledge, it is generally known that it is illegal to mount a kerb and drive across a pavement to access a property; that street parking is permissible where there is no dropped kerb (subject of course to any specific local parking restrictions); and that Highways Department permission is needed to drop a kerb (and planning consent if the road is classified). As the professionals engaged to sell the property, I considered it reasonable to have expected the Agent to have known this, though not necessarily the sellers, just as I would expect an agent to be aware of regulations covering such matters as loft conversions. I, therefore, supported the complaint and instructed the Agent to pay 25% of the cost of lowering the kerb after taking into account that Mr and Mrs F’s solicitor and surveyor would or should have known there was a hardstanding for a car and been alert to the not uncommon legal issues this raised.
Learning
I expect an estate agent to be able to be able to demonstrate that they have taken reasonable steps to produce accurate particulars and otherwise provide clear specific details when timely, which give buyers enough information to make an in principle decision as to whether the property is likely to meet their requirements. If there are any details of which they are unsure, and which the agent has been unable to verify, they should make a specific and clearly visible disclaimer, in this case words along the lines “legal access not checked, you must take advice from your solicitor”. General disclaimers in relation to the potential accuracy of the information contained in the sales particulars will not absolve an agent of all liability if errors are found.