Estate Agent almost sold us part of a property that wasn't even for sale, what should we do?

MDalgarno

My partner and I are very close to exchanging contracts for a leasehold flat. We thought we were buying the loft along with the top floor flat but we've now been told (after spending over £1,500 in fees) that the loft is not included. Throughout all the estate agent documents and property listing provided prior to putting in our offer it mentioned the loft as part of the purchase, i.e. it was part of the floorplan, it was included in the square footage quoted for the property, and we were specially shown around it during our viewings. It was also included in the Homebuyer Survey, which of course influenced our mortgage valuation.

We have now learnt that the loft is not included in the purchase/deeds, and as the only access is through the flat we are buying, we have been advised that the landlord can make use of this loft space and require access at any time. I know it won't count for much but we did verbally question whether the loft was included during the viewing and at no point were we told by the estate agents that it wasn’t. We may now decide not to carry on with the purchase but will have lost money.

Our solicitor has suggested requesting a Deed of Variation but this will again incur more costs with no promise of actually being accepted. It seems like the estate agents believed the loft was included which leads us to believe that the guide price that we offered may actually be over market value if you take away to loft from the purchase. 

What can we do?

yllop1101

You can do whatever you like! It sounds like what you're asking is can you reduce the price you're willing to pay? The answer to which is of course you can, if you haven't exchanged. The seller may or may not accept this, so you just need to know whether you're willing to proceed or not. 
It's a shame that the owner didn't correct the estate agent (every owner looks at the listing of their property, right), which either means they were trying to be deceptive or they thought it was theirs. Did they use the space? What sort of space are we talking about here, is it just a void or is it hoarded etc? Who is the landlord and is he likely to want access? It might be the landlord is happy to sell it to you (the money you knock off to the seller of the flat could go to the landlord for the loft, and the flat seller could pay the fees for this given their ignorance/deception). 

Thrugelmir

MDalgarno said:

 at no point were we told by the estate agents that it wasn’t. 

Sounds like a vendor thinking that they could pull a scam without anybody realising. The EA would be none the wiser is somebody is lying outright. 

MDalgarno

yllop1101 said:

You can do whatever you like! It sounds like what you're asking is can you reduce the price you're willing to pay? The answer to which is of course you can, if you haven't exchanged. The seller may or may not accept this, so you just need to know whether you're willing to proceed or not. 
It's a shame that the owner didn't correct the estate agent (every owner looks at the listing of their property, right), which either means they were trying to be deceptive or they thought it was theirs. Did they use the space? What sort of space are we talking about here, is it just a void or is it hoarded etc? Who is the landlord and is he likely to want access? It might be the landlord is happy to sell it to you (the money you knock off to the seller of the flat could go to the landlord for the loft, and the flat seller could pay the fees for this given their ignorance/deception). 

Thanks! I think we're just a little put off by how this has been handled, we've lost trust a little in the whole process and wondering what else they may be lying about! We aren't sure if we would be entitled to financial compensation at all for this.
The seller has been allowed to use the loft for storage but our solicitor has said we have no right to access it and would need permission to do so after the sale. The space isn't tall enough to stand in but a considerable space to have, it takes up nearly half of the square footage quoted by the estate agents. It is properly insulated and safe to move around in. We don't know who the landlord is or anything much about the management company either.
We still want the flat if the loft can be included, so I think your suggestion of trying to buy the loft using the money leftover from lowering our offer makes sense, just annoying that we'll incur extra costs for having to redo the mortgage when this isn't our fault.

GoogleMeNow

I am sorry, you must be very disappointed.

The flat is very likely not worth what it was valued at, so I hope you can negotiate a price reduction.

For future reference, the estate agent will not know this kind of information.  They are merely a selling agent.  If the owner does not advise them that the sales particulars are incorrect, they will assume that all is in order.

Also, very few flats include the loft in their demise.  The roof usually is considered part of the structure of the whole building, which comes under the ownership of the freeholder.

Windofchange

An ex of mine had a similar situation to this. She brought a top floor maisonette in what was originally a 3 story house with loft - she owned the top two floors, and downstairs was the garden flat. The loft space was not on her deeds, and as per your potential property, the only way to access it was through her flat and we had 'no right' to access it. However, there was no stipulation that she had to allow for access to the freeholder to access the loft area, and in reality we stored all sorts of things up there as who is going to know / care? Are you 100% sure that the owner of the loft (presumably the freeholder) can ask to access the loft area through your property? Something sounds wrong about that as nobody has a legal right to access your flat without your permission except in very limited circumstances - basically some sort of emergency. The loft owner / freeholder can't just rock up and demand to be let in, just as with landlords who can't just force entry whenever they feel like it.  

It sounds to me one of those situation whereby a freeholder is involved, and if so, the cost to purchase the space is likely to be high. I think that legally the freeholder has to sell to you, but the price will depend upon years left on the lease alongside how much value add you having the loft will give you. With my ex, we were quoted in the ballpark of 50 grand given the price uplift potential of doing the loft conversion, but this was Central London with prices much much higher than the rest of the country of course. 

Presumably as well if the loft space isn't habitable, it can't have been included in any sort of capacity that would have vastly impacted the price? Of course what you do with all this is your call. I would want to clarify exactly what the rights of the freeholder to access that space are as what you have suggested that they can just barge in sounds very wrong to me. If for some reason that is the case, I would probably be walking away as not sure I would want the possibility of some stranger storing stuff above my head. 

koalakoala

I would walk away, but you need to ask your solicitor if you are due any compensation

Thrugelmir

MDalgarno said:

yllop1101 said:

You can do whatever you like! It sounds like what you're asking is can you reduce the price you're willing to pay? The answer to which is of course you can, if you haven't exchanged. The seller may or may not accept this, so you just need to know whether you're willing to proceed or not. 
It's a shame that the owner didn't correct the estate agent (every owner looks at the listing of their property, right), which either means they were trying to be deceptive or they thought it was theirs. Did they use the space? What sort of space are we talking about here, is it just a void or is it hoarded etc? Who is the landlord and is he likely to want access? It might be the landlord is happy to sell it to you (the money you knock off to the seller of the flat could go to the landlord for the loft, and the flat seller could pay the fees for this given their ignorance/deception). 

Thanks! I think we're just a little put off by how this has been handled, we've lost trust a little in the whole process and wondering what else they may be lying about! 

That's why the role of the solicitor is so important in the process. Often dismissed as a tick box exercise. Their role is to protect you and the mortgage lender against fraud. 

zagubov

This isn't one of those scams where the freeholder builds a new property upstairs in the loft space, and you have to provide access and put up with noise/construction hassle?

DrDorset

Pull out the purchase. 

Speak to the agent and request they reimburse your expenses, if not go to the property ombudsman. The agent should have carried out better due diligence. 

NameUnavailable

You won't get any compensation. The agents particulars will have a disclaimer about needing you to verify any details with your legal representatives.

You don't have a contract, just an intention to sell/buy - until you exchange contracts you or the seller can pull out for any reason. The fact that the loft was mis-described is really the vendors fault, but it is your solicitors job to advise you on what you're buying, which they have done.

If the loft is important to you then pull out. I expect the point about freeholders access is for essential maintenance (i.e. if the roof was leaking, or if there are water tanks up there).