A property was sold to us under the false premise that it was ready. Is this fraud?

SuboJvR

Indeed I would be very intrigued to hear of anyone who has managed to reserve a property and move in "a few days" later, squeezing conveyancing, mortgage offer, arranging deposit and completion funds all into such a deadline!

I remember when we got all of our paperwork from the solicitor, pages and pages of it, I basically needed to just put it aside until the weekend when we could both go through it.... let alone the time for the solicitor to do their jobs..

AnotherJoe

Pull out and demand your money back sending a letter before action stating that if not refunded after 14 days you’ll sue.
Itemise what money you want, and don’t be greedy.

[Deleted User]

Imagine if they have done a heap of shoddy work (its difficult for NHBC to check everything if the walls have been put up) and say you have a major damp problem due to a leak, your nice new bed/sofa etc is ruined. And then it takes you a couple of years to get your reluctant builder to repair the problem.

While you might not be able to take the builder to court, you have enough experience with him to know you can't trust anything he says. NHBC warranties are not as foolproof as they seem and time consuming to pursue remedies with.

Losing £2-3k now might seem to be a pittance in a couple of years time compared to the stress of living in the building.., if the builder has completed it as badly as he may have, judging by your reports of what he has said.

robin58

1. We're a bit emotionally invested in the property. At least the apartment.


Never invest an emotional feeling in a property whilst you are buying it. Only after you have it.

This is a property deal, treat it as a business deal, with a cool head.

Another question, are there other apartments in the building. Do know any stories/information about them?

Personally I think if you buy it with all the nonsense you have had up to now and the possible future problems, walking away and losing 3k may look cheap when you look back.

My dad was a builder and decorator. No way would it take 4 months to do a job like this.

Hell I have just seen my next door neighbour buy the house and had it gutted, remodeled, new windows, rewired, re-plumped, new kitchen, painted and decorated in 6 weeks. Gang of 5 builders working Monday to Friday. 8 am to 5 pm.

theartfullodger

tzzt123 wrote: »

......... I still don't know if that could be considered fraud........

This is what fraud is...

http://www.legislation.gov.uk/ukpga/2006/35/crossheading/fraud

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—

(a)section 2 (fraud by false representation),

(b)section 3 (fraud by failing to disclose information), and

(c)section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b)on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

(4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

2 Fraud by false representation

(1) A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

3 Fraud by failing to disclose information

A person is in breach of this section if he—

(a)dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b)intends, by failing to disclose the information—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

4 Fraud by abuse of position

(1)A person is in breach of this section if he—

(a)occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b)dishonestly abuses that position, and

(c)intends, by means of the abuse of that position—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

5“ Gain” and “loss”

(1)The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2)“Gain” and “loss”—

(a)extend only to gain or loss in money or other property;

(b)include any such gain or loss whether temporary or permanent;

and “property” means any property whether real or personal (including things in action and other intangible property).

(3)“Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have.

(4)“Loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.
6Possession etc. of articles for use in frauds

(1)A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud.

(2)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or to both).

(3)Subsection (2)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

7 Making or supplying articles for use in frauds

(1)A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article—

(a)knowing that it is designed or adapted for use in the course of or in connection with fraud, or

(b)intending it to be used to commit, or assist in the commission of, fraud.

(2)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b)on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

(3)Subsection (2)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

8 “Article”

(1)For the purposes of—

(a)sections 6 and 7, and

(b)the provisions listed in subsection (2), so far as they relate to articles for use in the course of or in connection with fraud,

“article” includes any program or data held in electronic form.

(2)The provisions are—

(a)section 1(7)(b) of the Police and Criminal Evidence Act 1984 (c. 60),

(b)section 2(8)(b) of the Armed Forces Act 2001 (c. 19), and

(c)Article 3(7)(b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));

(meaning of “prohibited articles” for the purposes of stop and search powers).

9 Participating in fraudulent business carried on by sole trader etc.

(1)A person is guilty of an offence if he is knowingly a party to the carrying on of a business to which this section applies.

(2)This section applies to a business which is carried on—

(a)by a person who is outside the reach of [F1section 993 of the Companies Act 2006]F1(offence of fraudulent trading) , and

(b)with intent to defraud creditors of any person or for any other fraudulent purpose.

(3)The following are within the reach of [F2that section]F2—

(a)a company [F3(as defined in section 1(1) of the Companies Act 2006)];

(b)a person to whom that section applies (with or without adaptations or modifications) as if the person were a company;

(c)a person exempted from the application of that section.

(4)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)“Fraudulent purpose” has the same meaning as in [F5that section]F5.

(6)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b)on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

(7)Subsection (6)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

I'd say it's fraud, at least by false representation, but as you appear to have little or no hard evidence.. walk away, learn from this...

davidmcn

theartfullodger wrote: »

This is what fraud is...

http://www.legislation.gov.uk/ukpga/2006/35/crossheading/fraud


I'd say it's fraud, at least by false representation, but as you appear to have little or no hard evidence.. walk away, learn from this...

Even if it does constitute the crime of fraud - criminal prosecutions are between the Crown and the accused, not something which will give the OP any right to their money back or a completed flat. We did tell the OP to walk away two months ago...

steampowered

theartfullodger wrote: »

I'd say it's fraud, at least by false representation, but as you appear to have little or no hard evidence.. walk away, learn from this...

The legislation you posted deals with criminal fraud only.

Civil fraud (the type Op could bring a claim for) is similar but slightly different, and is not statutory. The details are here: https://en.wikipedia.org/wiki/Tort_of_deceit

If the promise that the property is 'almost ready' was made after the Op had already reserved the property, I do not think the Op would meet the condition of the developer needing to "make a gain for himself, or to cause loss to another" for the purposes of criminal fraud or the condition of the Op "acting in reliance, to their detriment" for the purposes of civil fraud.

Because at the time the statement of the property being 'almost ready' was made, the Op would presumably have already been under contract for a long time. So I'm not sure what the Op's "loss" would be.

In a fraud claim the Op could only claim for "loss" flowing from the specific fraudulent statement that was allegedly made, not for any loss/stress associated with the transaction as a whole. I doubt the whole transaction was fraudulent.

This is a long way of saying that I think the Op needs to read their contract to see if they can get the reservation fee back; and forget about recovering anything else.

tzzt123

Hold on for a second,

1. The seller stated that the flat was 'ready to move into', before any payment or reservation or anything was done, and it was on this basis that we reserved the flat.

2. We paid 2,000 gbp at the point of reservation to the seller, 250gbp to the solicitor, and committed to pay the solicitor's fees for her (roughly 1,000gbp)

3. We were initially not given a receipt and it took right from the beginning 2 weeks of many emails for them to confirm the funds were transferred. (and that should have been already a giant red flag),

The memorandum of sale clearly states 'estimated dates for exchange will be provided 28 days within the date of reservation'

4. Only after payment was made, the statements changing. It was first 'ready by the time your mortgage is approved', to in 2 weeks, to in 2 more weeks, to 'we'll let you know' to 'we don't really have to follow the 28 days on the memorandum of sale' to 'by the end of the month, to by the last week of October, to by the first week of November, to now by the 15th or November - and it's pretty clear we're not going to meet this deadline as well.

4. The communication has been awful. We're talking of dozens of ignored emails, to begin with, 90% of the information they have replied with turned out to at least incorret, if not an actual lie, we were told we were 'too demanding' or 'too senstitive' when we questioned whether information was correct, or ask for evidence, and in most of the at least 50 times we've complained, we were told it is rude to complain, and even that the employee we were talking to was 'working too hard and that we need to understand that', but no actual response to the compaints we've made.

5. we're also talking about dozens of promises to at least callback and update us on progress - promises that were never fulfilled, and a giant number of excuses behind them.

6. I've gone to the point where I have started micromanaging everything - calling the insurance and warranty company to ask if things were happening, the inspector to ask if he was coming as told by the company (and he didn't even know he was supposed to come, 3 times out of 4).

7. we were told snagging had been done at least 3 times when they were not (we regularly visit the apartment to see if there is any progress)

8. We only recently found out that the real reason behind the delay is the fact that the seller attempted to negotiate our apartment with another seller behind our back, while we were waiting to move in.

9. The seller told us at before the reservation that the flats were running out and that we must go really fast. In reality, it turns out they were unable to sell most of them and have now been forced to rent most of them out.

The reasons are quite clear - customers are not being treated well, but also the fact that it looks like the seller was trying to squeeze too many apartments into a limited space and ended up with a lot of apartment that looks weird. Ours actually looks quite nice.

10. The building and the apartment were advertised as 'luxury, high standard and intelligently designed'. I'm not sure what the standards are - there are still unfinished touches the seller refuses to take care of (weird empty space above the built-in dishwasher, the cheapest bathtub side panel you can get, holes in the carpets near the wall)

When we challenged the seller - we were told that 'we were too sensitive and that our standards are too high. He refused to seal the bathtub side panel with silicon, stating 'its normal standards', told my partner is was too demanding by asking that they cover the holes in the carpet, and actually stated that the best thing to do is to not write anything since it over complicates things.

11. The bottom line is that we were supposed to move into this apartment 4 months ago, and we still don't have a date - that was a lie told by the seller - a lie we paid for, by committing to the solicitor, paying the reservation fee, in time, and a lot of stress.

12. Oh yeah - most of this stuff is well documented in email

HampshireH

Yet you are still complaining and remain undecided as to whether you want to move in and buy it or not.

No matter how many times you repeat your problems your audience is the wrong one. You had advice in your last thread and have had the same advice in this one.

Either wait it out or walk away and take your complaint up with the support of the CAB and/or pursue civil action against the sellers. A judge can decide who is right or wrong.

There really isn't much more anyone can add to this thread which hasn't been covered.

tzzt123

HampshireH,

Have you missed out on the topic of this thread ? I don't see anywhere asking for advice on whether I should pull out or not..

Thanks though.