Right of way - Misleading Action
Complaint
In this case the tenant, Mr C, alleged that the Agent had provided him with misleading information concerning a right of way across the Property. The Agent responded stating that the information had been provided to them in good faith by the Landlord.
Investigation
I explained that an agent, when letting a property, would not normally have access to the title deeds and that it was not their role to determine matters concerning title, rights of way, or any other similar issues. As such, when providing advice on these matters an agent is entitled to rely in good faith upon the information they receive from their client, unless they are put ‘on notice’ of an issue. In this case, the Agent advised Mr C that no right of way across the Property existed, whereas it transpired after the tenancy commenced that a neighbour had a right to vehicle access across the Property’s land. Mr C explained that the neighbour in question made a comment regarding the existence of a right of way during a viewing of the Property and that he sought written assurance from the Agent on the matter which he subsequently received, deciding to proceed with the tenancy on that basis. Having examined the documentation, the Agent was unable to provide written evidence that they had discussed the matter with the Landlord upon receiving Mr C’s query. However, I did note that the Agent had also sent the Landlord a copy of their response letter to Mr C regarding the right of way and that there was no indication that the Landlord had sought to correct the position.
Outcome
The Agent’s letter, copied to the Landlord, persuaded me that at an undocumented point they had sought the Landlord’s view on the matter and that the information provided to Mr C was conveyed in good faith. I, therefore, considered that the Agent had complied with Paragraph 4f of the TPO Code of Practice and their obligations under the CPRs.
Learning
It is not acceptable to state that information provided to a prospective tenant has previously been received from the landlord in good faith, without contemporaneous records to support that position. Paragraph 1h of the TPO Code of Practice requires that clear and full written records of the transaction should be kept by the Agent. This is especially relevant if the information in question is material to the consumer’s transactional decision.