This dispute involved three parties, the Buyers and their Neighbours who made separate complaints in relation to the consequences of the Agent providing incorrect material information.
The Buyers successfully completed the purchase of their property which had been a probate sale. Upon moving in the Buyers proceeded to clear the contents of the garage to enable them to store their own belongings while they carried out remedial works to the house. The Seller (the former owner’s son, who did not live nearby) had previously confirmed that the garage would not be cleared and that this would be the Buyers’ responsibility.
After their third trip to the local recycling centre, the Buyers noticed a wooden plaque displaying the address of the next-door house which confused them. They then checked paperwork in one of the boxes and saw that it did not show the former owner’s name.
The Buyers phoned the Agent to check that they were in the correct garage. The Agent then checked with the Seller who informed them that having previously thought it was the first one on the right of the garage block, it was actually the second on the right. The Buyers then checked the key to the garage door of the next garage along and the key worked. Upon being informed of what had happened, the Neighbours were distressed and angry.
Both the Buyers and the Neighbours went on to separately complain to the Agent – the Neighbours seeking compensation for the items which were disposed of, and the Buyers simply seeking that due compensation was paid to the Neighbours in order to resolve the ill feeling that had arisen between them.
The Agent’s response to the complaints was that they had initially been misinformed by the Seller, that the key they had been provided with opened what the Seller had told them was the correct garage and that they had not had sight of the title plans and therefore had no reason to question the information provided by the Seller. However, the Agent acknowledged that they had not kept proper records of their conversations with the Seller and offered the Buyers £300 to resolve the matter. The Agent did not consider they were responsible for the Neighbours’ losses.
The adjudicator considered that in normal circumstances, it would have been reasonable to expect that the key provided would not have opened the first garage, which would have prompted the Agent to contact the Seller to recheck the location of the garage. It would have then been reasonable to assume that the Seller would have indicated to them to try the next garage along, which would have, of course, successfully opened the garage door, avoiding the unfortunate situation from developing.
The Agent did not have a copy of the Title Plan and so they had no means to check the location of the garage beforehand. As the key opened the garage door they were entitled to believe they had located the correct garage. It would not be reasonable to expect them to have considered there was a possibility that the key they were provided with would be able to open more than one door in the row of garages.
What was reasonable to expect, and indeed required under the TPO Code of Practice, was for the Agent to keep full written records which would have included a record of their conversations with the Seller. As such, there should have been evidence that the Seller initially informed them that the garage was located ‘first on the right’, as they had claimed, but as this was not provided the Agent’s claim could not be substantiated.
Furthermore, the requirement to provide accurate details about the property, placed the onus on the Agent to satisfy themselves through making reasonable checks that the garage being marketed with the property was the correct garage. Given that the notes showed that the Seller was initially unable to provide them with a key, should have placed them on notice that further checks were required before marketing commenced.
TPO agents are expected to carry out these types of checks in the respect of allocated parking spaces to enable them to accurately disclose material information to potential buyers, especially as it is not uncommon for sellers to mistakenly convey incorrect information. As the Seller was not the previous owner of the Property, had not initially provided a key and was not necessarily entirely familiar with the location of the garage, the adjudicator considered that the same obligations applied.
Had the Agent taken steps such as requesting to check the title plan before marketing then it was reasonable to conclude that they would have been aware from the outset that the garage was located second on the right; they would have then accurately pointed out the location of the garage to all interested parties who viewed the Property and, it is reasonable to conclude with hindsight, there would never have been even an attempt to open the incorrect garage door.
To reach a determination with any degree of certainty over this dispute and decide who should be held responsible for this extraordinary and seemingly unlikely situation from occurring was not straightforward. Ultimately, neither the Agent nor the Buyers could have reasonably foreseen the events which were to follow. Furthermore, it would also be slightly unfair to fully point the responsibility for the situation at the Seller as he had not resided at the Property, and so may not have been familiar with the location of the garage, and, too, was entitled to expect that the key in his possession would only open one door in the row of garages, if he had, indeed, informed the Agent incorrectly about the location of the garage, as the Agent had claimed. Of course, the party which was not at fault was the Neighbours, yet they were the party which had seemingly born the majority of the consequences of this situation occurring.
While it was accepted that the Agent was entitled to believe that the garage door which the key opened was the correct one, it was clear that there were certain reasonable steps they could have taken prior to marketing commencing which would likely have prevented the subsequent series of events from occurring. In any event, the adjudicator considered the goodwill offer which the Agent had made to the Buyers reasonably reflected the avoidable aggravation caused to the Buyers. As such, an award of £300 was made to the Buyers.
To resolve the Neighbours complaint, an award of £500 was made. Whilst the Neighbours were claiming ‘thousands’ in respect of valuable and sentimental items, no evidence was provided of the specific items lost and their value. There was also no evidence provided of whether the items were covered under the Neighbours’ insurance arrangements. The adjudicator considered that a strong element of misfortune had occurred which meant it would have been unfair to hold the Agent entirely responsible for the purported financial loss. As such, the £500 award covered the aggravation, inconvenience and distress caused to the Neighbours.
Both the Buyers and Neighbours accepted the outcome and their disputes were resolved.