In this case the potential buyers, Mr and Mrs H, viewed the property four times before entering into negotiations where a mutually agreeable price was agreed. However, during the conveyancing process it came to light that the storage arrangements described on the draft sales particulars did not form part of the sale. Unfortunately, the transaction broke down and Mr and Mrs H sought reimbursement of their costs from the Agent.
The property in this case was a leasehold top floor flat which was shown as benefitting from an area recorded as ‘eaves storage’ in the floor plan and further described as ‘lots of storage with a potential roof terrace’. According to the Agent, they had no reason to believe that the eaves space was not included and in support of their position stated that they mentioned the eaves in a valuation letter sent to the seller who made no mention of the eaves in her reply. I examined the letter in question which constituted an email report approximately 900 words long in which the Agent had discussed all aspects of the property, devoting one sentence to the benefit of the eaves storage in freeing up space. I noted that the seller had responded briefly but her email in no way amounted to her agreeing that the eaves were to be included as part of the sale.
Given that the seller had not approved the sales particulars and that it is often the case that eaves areas are owned by the freeholder, I was surprised that the Agent had chosen to specifically promote this aspect of the property, relying only on a short response from the seller which did not clarify the position either way. I considered that the Agent should have been on notice that there was a potential issue, taken reasonable steps to clarify the position and further explained the matter to Mr and Mrs H at the outset. Clearly this information was material to Mr and Mrs H and, indeed, any potential buyer, therefore, I supported the complaint and made an award of £995 which took into account Mr and Mrs H’s abortive costs.
I expect an experienced and knowledgeable estate agent to recognise that in the case of a top floor leasehold apartment it is sometimes the case that an area described as eaves belongs to the freeholder and as such is not part of the leasehold property available for sale. Such knowledge and experience, in my view, should put an agent ‘on notice’ that further enquiries are needed (reasonable steps) in order to establish whether the eaves form part of the property in question before describing the eaves as such.