Fraud Act 2006 and Vendors who pull out

Doozergirl

real1314 wrote: »

buyer makes offer, finds out there's a planning issue..

There was no planning issue. The time in which a retrospective planning application would have been required had passed.

There could have been no intention to defraud the OP on that point if the vendor didn't even know that a planning application would have been entirely uneccessary.

"Oh yes, of course I'll get planning permission (mwahahahaha)" when it isn't even required?

macaque_2

hearts wrote: »

move on.....sorry but this is the best advice you'll get ;-)

.....oh and I think it would be Civil rather than criminal.

How often do we hear this smug cliche of 'move on'. If someone trips on a paving stone or scratches a car bonnet there is a rush for compensation. At the same time people are lying, cheating and defrauding each other over house transactions every day and justice is never done. Buyers get gazumped after committing huge sums in legal survey fees. Sellers similarly get gazundered. Sellers lie and hide problems. People pull out of transactions for no good reason. The stock response to this is 'move on'. If this is the right advice, it is a poor reflection on what we have become.

Richard_Webster

(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.

The difficulty always with this sort of thing is proving the dishonesty and the intention. They will always say that that they weren't dishonest and they did intend to apply for planning permission etc. The problem usually is that something is suspected but can't be proved beyond reasonable doubt.

Debt_Free_Chick

Richard_Webster wrote: »

The difficulty always with this sort of thing is proving the dishonesty and the intention. They will always say that that they weren't dishonest and they did intend to apply for planning permission etc. The problem usually is that something is suspected but can't be proved beyond reasonable doubt.

And if my barrack-room understanding of law is correct, then use of the Fraud Act would amount to a criminal offence (rather than a civil tort).

In criminal cases, the test of "guilt" is more stringent - one has to demonstrate that the defendant's guilt is "beyond reasonable doubt". This is where the jury comes in .... they are meant to represent a reasonable cross section of the community. One would have to convince them - in this case - that the seller knowingly and intentionally misled the buyer into parting with the fee for the survey. That is ... that the seller intended that the buyer would fork out for a survey, on the basis that the seller would apply for planning permission, when they had no intention of doing so.

Now then ... the seller enquired of the planning officer and was told ....? we're not sure. But the seller could have been told that no application for PP was necessary.

So has the seller reneged on their agreement with the buyer? Difficult. They made the appropriate enquiries and they were told that a PP application was not necessary (probably).

How can the seller do something that is not possible? Capability under contract law ....? A contract is only a contract if the parties are capable of executing what they've agreed. If PP cannot be applied for, then possibly the seller was not capable of complying with the contract (the one to apply for PP).

At the end of the day, if you rely on the Fraud Act it will be for the CPS (Crown Prosecution Service) to determine if the Crown should bring a criminal action against the seller.

Not a cat in Hell's chance, I'd suggest. The Fraud Act wasn't intended to cover this situation - it might apply, but that wasn't the intention.

Persuading the CPS to spend public money on what is, essentially, a civil matter is a complete non-starter.

But if you have the time on your hands ..... it beats daytime TV or Sudoku

bgwuser

Debt_Free_Chick wrote: »

And if my barrack-room understanding of law is correct, then use of the Fraud Act would amount to a criminal offence (rather than a civil tort).

In criminal cases, the test of "guilt" is more stringent - one has to demonstrate that the defendant's guilt is "beyond reasonable doubt". This is where the jury comes in .... they are meant to represent a reasonable cross section of the community. One would have to convince them - in this case - that the seller knowingly and intentionally misled the buyer into parting with the fee for the survey. That is ... that the seller intended that the buyer would fork out for a survey, on the basis that the seller would apply for planning permission, when they had no intention of doing so.

Now then ... the seller enquired of the planning officer and was told ....? we're not sure. But the seller could have been told that no application for PP was necessary.

Retrospective PP WAS necessary as adnised by our solicitor AND when the vendors found out that we are seeking legal advice -they rushed out and submitted the application which the LA have accepted and are processing. So retrospective PP was necessary even though the LA are unlikely to demand demolition due to the length of time that has passed.

So has the seller reneged on their agreement with the buyer? Difficult. They made the appropriate enquiries and they were told that a PP application was not necessary (probably).

How can the seller do something that is not possible? Capability under contract law ....? A contract is only a contract if the parties are capable of executing what they've agreed. If PP cannot be applied for, then possibly the seller was not capable of complying with the contract (the one to apply for PP).

At the end of the day, if you rely on the Fraud Act it will be for the CPS (Crown Prosecution Service) to determine if the Crown should bring a criminal action against the seller.

Not a cat in Hell's chance, I'd suggest. The Fraud Act wasn't intended to cover this situation - it might apply, but that wasn't the intention.

Persuading the CPS to spend public money on what is, essentially, a civil matter is a complete non-starter.

But if you have the time on your hands ..... it beats daytime TV or Sudoku

Retrospective PP WAS paramount as advised by our solicitor. The vendors only applied for it AFTER they found out we were considering legal action. The application was accepted by the LA and they are processing it now. Although it is unlikely they will order it to be demolished due to the length of time that has passed (hence why we still wanted to buy the place and offered the full asking price) it still needed to be legalised by the LA who could still impose a fine on the vendors.

bgwuser

Doozergirl wrote: »

There was no planning issue. The time in which a retrospective planning application would have been required had passed.

There could have been no intention to defraud the OP on that point if the vendor didn't even know that a planning application would have been entirely uneccessary.

"Oh yes, of course I'll get planning permission (mwahahahaha)" when it isn't even required?

Sorry if I have not explained this BUT retrospective PP was required as advised by our solicitor. The vendors dashed to the LA and submitted the application AFter they learned we were considering legal action. The LA is processing the application. The vendors could still face a fine for being in breach of planning laws.

Generali

bgwuser wrote: »

Sorry if I have not explained this BUT retrospective PP was required as advised by our solicitor. The vendors dashed to the LA and submitted the application AFter they learned we were considering legal action. The LA is processing the application. The vendors could still face a fine for being in breach of planning laws.

That they did that doesn't mean that you've got a case for legal action though. It just means that the vendors went to the local authority to apply retrospectively for planning permission.

If you want to employ a solicitor and sue these people or ask the police to investigate then go ahead although the majority of opinion seems to be against you having much chance of success.

Just a thought - it seems a bit odd to ask for advice and then complain that the advice isn't what you want to hear. If you want agreement, buy a nodding dog. If you want advice then ask for it. Don't get confused between the 2 though.

bgwuser

Generali wrote: »

That they did that doesn't mean that you've got a case for legal action though. It just means that the vendors went to the local authority to apply retrospectively for planning permission.

If you want to employ a solicitor and sue these people or ask the police to investigate then go ahead although the majority of opinion seems to be against you having much chance of success.

Just a thought - it seems a bit odd to ask for advice and then complain that the advice isn't what you want to hear. If you want agreement, buy a nodding dog. If you want advice then ask for it. Don't get confused between the 2 though.

When have I complained? I have only apologised for not giving clear information. I ahve thoroughly enjoyed hearing everyones thoughts. If everybody agreed it would not be a debate. Thanks to this forum I have narrowed down that the only part of the offence I have not established proof for is the "intent" which is what I am concentrating on now. Thanks again to all and commiserations to those of you who have suffered. If I was wealthy enough for a civil suit to establish case law - I would do as people lose millions each year through this type of dishonesty.

Doozergirl

DO you know exactly why your vendors pulled out?

I'm not trying to be funny, but if a buyer started to threaten legal action against me not far into the conveyancing process, I'm not sure how far I'd want to continue. Personally, I would think you were a loose cannon and I feel comfortable enough with the fraud act not being fo rthe likes of me, that if I did pull out as a result of your behaviour, that I wouldn't be guilty of fraud.

If I were a lesser experienced vendor, I would probably wet myself and pull out. What if I did sell to you and something was wrong?

hearts

macaque wrote: »

How often do we hear this smug cliche of 'move on'. If someone trips on a paving stone or scratches a car bonnet there is a rush for compensation. At the same time people are lying, cheating and defrauding each other over house transactions every day and justice is never done. Buyers get gazumped after committing huge sums in legal survey fees. Sellers similarly get gazundered. Sellers lie and hide problems. People pull out of transactions for no good reason. The stock response to this is 'move on'. If this is the right advice, it is a poor reflection on what we have become.

This my dear fellow was genuine advice. After carefully reading the post and waying up the money involved then adding in the hassle and time. Also taking into consideration the likelyhood that there was no case to answer, I came to the conclusion that the best the OP could do was MOVE ON. It may not be what he wants to hear and it may not be what you want me to say but the truth is, life is harsh. We don't always get what we deserve and the bastoords often win. Sometimes you just got to take one on the chin and walk away.
Furthermore I suspect that when the dust settles on this particular problem we will in fact find that the OP does in fact take my advice. ;-)
Good luck to you sir.