Title Issues - Misleading Omission
Complaint
Following the discovery of issues concerning access and a leasehold title, the potential buyer, Mrs C, withdrew from the transaction and raised a complaint against the Agent stating that this information should have been divulged to her at an earlier stage which, if it had been, would have resulted in her not incurring legal and surveying costs. The Agent responded by pointing that the issues concerned fell within her conveyancer’s responsibility, adding that they were not made aware of either issue by the Seller.
Investigation
The Seller was a corporate client who was unable to provide the Agent with detailed information about the Property normally expected from a house owner. The Agent’s knowledge of the Property was, therefore, mainly borne out of their market appraisal and their subsequent marketing. Indeed, their marketing had resulted in a previous buyer becoming interested in the Property but withdrawing from the transaction following his conveyancer becoming aware that there was a leasehold interest in the Property. The Agent’s file contained an email from the conveyancer who had sought clarification of a boundary issue, explaining that there was a leasehold interest that was historical and would likely require it to be removed by the Seller prior to the completion of any sale, a process which may significantly delay the transaction that the Seller required to be completed within a 28 day period. The Agent received the email a month before Mrs C’s offer was accepted. Regarding the access issues, the Agent’s file contained no information indicating that they were aware that such an issue existed. Indeed, the photographs of the Property provided no indication that there were problems in this regard.
Outcome
Given that the Property was not of a type where a leasehold title was typical and taking into account the email from the previous buyer’s conveyancer and the required timescales for the sale, I considered the leasehold element of the Property to be material information which should have been disclosed by the Agent to Mrs C prior to making her offer for the Property. I supported this part of the complaint and made an award of £300.
Learning
In this case, the leasehold issue was clearly a problem for any buyer especially given the timescales imposed by the Seller. Having been notified of the problem the Agent should have discussed the matter with the Seller to determine an appropriate resolution. Until such times as that resolution was agreed, the Agent was required to divulge the matter to all potential buyers in accordance with Paragraph 5h of the TPO Code of Practice and the CPRs.