Most people know that the general approach in English law is ‘buyer beware’ and can get along very happily without knowing anything more. It is only when they come to buy, sell or lease property that a person needs to understand the importance of what is said (or not said) to a prospective buyer or a potential tenant. For solicitors, a case such as Patarkatsishvili and another v Woodward-Fisher [2025] EWHC 265 (Ch) which gets widespread news coverage is really helpful – we can use it to better explain to clients what they should or should not do.
The seller in this case was a property developer. In the property in question (pictured) some of the wool insulation had become infested, which the seller had tried to fix with repeated treatments by professionals. The buyer’s enquiries covered vermin and reports, to which the seller replied along the lines of ‘not so far as the seller is aware’, even though the process of treating the moths had involved repeated visits and quotes from a contractor and each quote was accompanied by a ‘report’ into the condition of the house. Evidently, the seller suspected that if the reports were mentioned, the buyer would ask more questions and might be put off. This gave the seller a motive for fraud: the motive coupled with his experience buying and selling houses, meant the judge held the seller had been dishonest.
The case echoes Morrell v Stewart [2015] EWHC 962 (Ch) where issues with drains were not disclosed because the seller claimed the issues had been remedied. The property was boarding kennels with a cattery business and the problems had involved the Environment Agency, which was also not disclosed. The seller did not want to draw attention to something which would have had an impact on the sale. In that case, the buyer was awarded damages.
Compare that with Morgan v Pooley [2010] EWHC 2447 (TCC). A secluded home was sold by a couple who only lived there for part of the year and had been marketing it for sale, on and off, for several years. After the sale, a track by the boundary was improved by the neighbouring farmer and used more often. The buyers believed their sellers would have had notice of the planning application for the track. However, the notice of the application would have arrived at a time when the property was not being actively marketed. Mrs Pooley gave evidence that if her husband had seen the letter he would have been ‘round to the planning office the next day’ and, having seen her husband in the witness box, the judge agreed. Greater use of the track would have made the house harder to sell so it was in the sellers’ interest to object to the planning application. The fact that the sellers had more than one home and could wait for a sale reinforced a lack of motive in concealing the letter. In that case, the buyers were unsuccessful.
In Thorp v Abbotts [2015] EWHC 2142 (Ch) the seller was a qualified surveyor who understood the implications of the local plan for development in a quiet rural location. He had gone to public consultations and spoken to the local NIMBY (not in my backyard) campaign. He satisfied himself that the local authority was not proposing to allocate the nearest potential site for development. Selling the house shortly afterwards, the planning consultation and NIMBY discussions were not disclosed because the seller thought they were not relevant. The buyers had been looking for a secluded home and when the nearest potential site did get planning permission, they sued. In this case, the court decided that notices about the local plan were not specifically related to the property being sold – they applied to the whole neighbourhood. The leaflets from the NIMBYs were too vague, and the relevant individuals lived too far from the property to be described as ‘neighbours’. Finally, planning permission for the development had been granted on appeal, against the wish of the local authority. The judge held that the seller had acted fairly and reasonably when giving his answers.
What general points can practitioners draw from these cases? There are some things which only an owner will know, so buyers raise enquiries before exchanging contracts. The owner does not need to answer but silence might make the buyer suspicious.
If clients do decide to answer enquiries, they need to give proper consideration to their replies so that the answers accurately reflect the client’s knowledge, even if the client is bored by seemingly irrelevant questions. Omitting part of what the client knows may itself be a misrepresentation. If files have been destroyed or employees of the company owning the land have left, replies must be qualified to reflect this. Protective wording in the sales contract does not apply in cases of fraud, or answers given so recklessly that they might as well be fraudulent.
Even so, sellers, especially sellers who are very keen to sell, might suspect an honest answer will put a buyer off, or cause them to renegotiate the price of the property. This is where the temptation to ‘massage’ an answer or misrepresent the seller’s knowledge creeps in. Ms Patarkatsishvili’s successful claim for restitution – all her money back – should help solicitors keep clients on the right track.
Suzanne Gill is commercial property partner at Wedlake Bell, London
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