A case that The Property Ombudsman was asked to review came from buyers who stated that the agent had failed to provide them with all material information about the property, in this case failing to notify them of badger setts in the garden.
The buyers said that they noticed the holes in the garden during one of their viewings and upon querying this with the agent, said that they were informed they were fox holes. They said they were satisfied with this explanation as they had previously lived in a nearby property which had foxes in the garden and similar holes. The buyers explained that they spoke with the seller after they had moved into the property about some post that had arrived for him and asked whether the holes in the garden were fox holes. The seller said that they were badger holes, and that he had commissioned a report about the badger setts in the garden which had been supplied to the agent with the instructions that they provide a copy to prospective buyers.
The buyers subsequently contacted the agent and received a copy of the Badger Exclusion and Damage Report the seller had commissioned, which detailed extensive costs to install exclusion fences to deal with the extensive badger sett and allow full use of the garden.
The Report evidenced that the badger sett in the garden of the property was extensive, with several tunnels running from the main sett, which was situated at the rear of the garden, under the shed, central lawn area and some close to the side of the property. A significant selling feature of the property was the large garden and the extent of the tunnels created by the badgers not only caused damage to the shed, and lawn, but meant that they were present in over half of the garden and with this and the tunnels that led down the side of the property, if the buyers and their family were to enjoy use of the garden, they ran the risk of disturbing badgers in their setts. Natural England (NE) advised it is difficult to define what would constitute disrupting or disturbing a badger sett, thus making it difficult for anyone to be confident of not doing so.
Therefore, to avoid the risk of this and to allow the buyers to be able to use and enjoy the garden, it was necessary for works to be undertaken. The buyers consulted with NE to seek their advice on what works could be carried out and applied for the necessary licence. NE advised the buyers to consult with two ecologists to ensure that any works undertaken were compliant with the Protections of Badgers Act 1992.
A number of works were recommended including: trenching along the edge of the main sett by the lawn; felling two trees above the main sett; replacing the damaged shed to which the badgers had access and removal of spoil. The works costs £12,500 and the buyers wanted the agent to pay for these works.
The agent acknowledged that the seller provided them with a badger sett report and said that this had been discussed verbally with the buyers during viewings. They also said that the report was sent to the buyers by email.
The agent also commented that the buyers and their solicitor could have made further enquiries about the evident holes in the rear of the garden and considered that the Report they were provided by the seller would also have been supplied as part of the
conveyancing process, therefore accepting no liability for the claim.
Under the Protection of Badgers Act 1992, it is an offence to damage, destroy or block access to their setts or to disturb badgers in setts, such offence incurring imprisonment for up to 6 months or an unlimited fine. As such, the presence of a badger sett within a garden clearly constitutes material information which must be disclosed to all potential buyers to allow an informed transactional decision to be made.
Despite the agent’s comments, there was no evidence to show that they had emailed the Report to the buyers, nor any evidence to support the claims that the buyers were advised verbally of the presence of an extensive badger sett in the garden.
It was not sufficient to provide such crucial information verbally (and it could not be concluded that such a conversation had occurred), especially where an agent has in their possession a report which detailed the extensive nature of the badger sett in the garden and the associated complications and significant costs to rectify the same.
The buyers could have opted to have their own survey undertaken which would have revealed the presence of the badger sett. However, a buyer is not obliged to have a survey carried out, and in this case, the agent had a report in which this information was already detailed, and thus there was no need for the buyers to incur costs to discover information which the agent and the seller already possessed.
The agent had also commented that this information should have come to light during the conveyancing process as they considered that the seller would have provided his solicitor with
a copy of the report. There was no evidence of the agent informing the seller that they would also need to supply a copy to their solicitor.
The Ombudsman considered that the agent’s inability to evidence that the buyers were informed about the existence of the extensive badger sett within the garden of the property, and their failure to have provided the buyers with a copy of the report the seller had conducted regarding the badger sett, meant that the buyers were prevented from making an informed transactional decision.
By way of resolution to the complaint the buyers were seeking compensation from the agent to cover the costs they had incurred in dealing with the badger sett in the garden, so that they could have use and enjoyment of the same, whilst ensuring the badger sett was not disturbed and no disruption was caused to the badgers. These works totalled £12,500.
The complaint was supported and an award of £12,500 in compensation was made in full and final settlement. The Ombudsman also directed the agent to issue an apology to the buyers for the 6 months (the process to complete the works taking that time) of avoidable aggravation, distress and inconvenience they were caused by the agent’s failure to ensure all material information was provided.