Upon discovering that the property had shared ownership, the potential buyer, Mr C, withdrew from the transaction and raised a complaint against the Agent alleging that the property had not been described correctly.
The property in question had been repossessed by the corporate seller client and the Agent had produced sales particulars which stated that the tenure was either freehold, leasehold or commonhold, adding that prospective purchasers should seek further information from their legal representatives. However, from the Agent’s file, it was apparent that they had not been aware that ownership of the property was shared between the corporate seller and another company, until their client informed them after sale had been agreed with Mr C. Under the CPRs the Agent was required to provide Mr C with information considered material to his decision as to whether to offer on the property or not. Given the uncertainty over the tenure, I would have expected the Agent to have made some enquiries to check title and sought some evidence before marketing the property as they did. The fact that the property was a repossession property and that the Agent was marketing a similar property on the same road that was shared ownership, should have, in my view, prompted the Agent to make more enquiries as to the title of the property. I also considered that the Agent’s obligation to clarify the tenure was stronger, given that the corporate seller was likely to know less information about the property than the average seller as they had never lived there and had only recently obtained it. It was apparent, however, that the Agent made no checks as to the title of the property and relied on the limited information received from their seller client.
I considered that the property had been mis-described by the Agent and I supported the complaint to the extent that the Agent should have made some checks into the tenure of the property given that the corporate seller was seemingly unaware of this important information. However, in making an award, I took into account the fact that establishing the precise tenure of the property is usually a matter for the conveyancer in any event. I also took into account that, as soon as the Agent discovered the issue with the title, they immediately informed Mr C and tried to resolve the situation. Overall, I considered that the Agent’s lack of investigation into the title contributed to Mr C’s aggravation, distress and inconvenience in pursuing an interest in a property that he was actually unable to buy from the seller given that they only owned a 50 per cent share. I, therefore, made an award of £200.
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