Defending a misrepresentation claim

Mr2018

Hi everyone.

I am currently in the initial stages of a claim being made against me following the sale of my property.  The buyers are claiming misrepresentation of the information I provided following a flooding incident and are claiming damages to rectify the problem (carpets etc).  The background is this:

The House:

My partner (at the time, now separated) and I purchased the new build property in June 2017.  Due to my personal circumstances, I was unable to maintain payments on the house after my partner left and proceeded to sell it in 2020.  I used a full service estate agents who did all the viewings and negotiated the final price which was BMV due to needing a quick sale.  On the day, I agreed to meet the buyers at the property to hand over keys.  I then spent a hour talking to the new buyers and showed them around the house explaining where meters and stop taps were, how the heating worked etc.  They even asked where the water got in the house and I showed them! (the incident I explain below). This was all very amicable and friendly and we parted ways.

The Incident:

In Aug 2020 the house suffered from a surface water flood.  The main road at the top of the new estate (which is higher than the estate) flooded due to a blocked drain being unable to handle the amount of water during the storm.  This then overflowed the pavement and ran down the estate, passing through three house down the line of houses before reaching mine.  I suffered minimal damage, with the integral garage (which is approx 6" lower then the main ground floor of the building) getting water in it and some dampness to the ground floor carpets.  I shampooed the carpets and disinfected the garage and made no claim on my insurance.  The neighbouring houses were hit worse and did make claims on their insurance.  In Oct 2020 the same happened following another heavy rain fall, fortunately for me this was during the day and the fire service came and drained the water before it reached my house, but neighbours did experience some more minor flooding again.  The drains were then unblocked and prior to the sale of the house, there were no further incidents while I lived there.

The claim:

My solicitors for the house sale received some communication from the buyers solicitors initially bringing the case stating that they told they property had not flooded when clearly it had (their words), they believed the furniture had been moved to cover up signs and most importantly confirmed that they did not have a survey done as they relied on my representation.  As this time my conveyancing solicitor advised me to do nothing as this seemed an attempt to get me to panic and try and resolve quickly with an offer.  I took no action.  This was then followed up with another letter stating they were led to believe the property had never flooded and this was blatantly untrue and a gross misrepresentation, I had signed the property information form (PIF) but they have discover it has flooded 3 times! The also state the windows were open to disguise the smell under the pretence of Covid rules and some other claims of why their clients felt it was hidden.  At this point, I asked for the PIF to be resent to them as I had declared on the PIF the flooding incident! (one incident, not the 3 they claim to have happened).  It all went quiet for 4 months until another letter now saying they have done further investigation and it is not sufficed to just say "It has flooded" (which I did not, I explained the circumstances as well).  They go on to say it is clear efforts were made to conceal the extend of the flooding and reiterate some points previously made (windows open, furniture etc - all untrue btw).  They do then reference the PIF again and the point to the question about a dispute about the property or a property nearby, I have ticked no here when then neighbours are unhappy with the flooding of their home and are in dialogue with the builders.  This is potentially an oversight on my part.  Aside from this, there are a number of untruths and inconsistencies in their letters, including a complete change of stance re knowing about the flooding.

I understand this is a potentially a bit of fragmented or hard to follow story and obviously has bias as I have wrote it, but has anyone ever been in a similar position or does anyone have any knowledge or expertise that could educate me a bit more.  I am unsure how to defend it. I have sought legal advice from free initial consultations which range from a strongly worded letter to try make them go away through to mediation to mitigate my costs as much as possible.  But none of these consultations have had the time to consider all the facts, they need instructing to do that, so they are just general advice. Solicitors costs to do this are so high and my circumstances mean I just don't have that kind of money.  My personal view is I have done nothing wrong and this is frivolous attempt to have their carpets changed.  That I have given them enough information regarding the flooding for them to do their own checks and ask any questions, which they failed to do and not having a survey done then they have failed to do what they should to cover them under 'buyer beware'.  But very keen to hear other peoples views and experiences.  

I'm not asking for legal advice.

Thank you for taking the time to read and appreciate any replies.

pumas

Apart from the misrepresentation, what exactly do they want?

pinkshoes

What is there to defend? They have no case whatsoever.

You filled in the SPIF accurately, made it clear there had been a flood and informed them of the details. They still chose to purchase and chose to have no survey.

End of story. 

Either ignore, or reply factually stating:

Dear <name>.

Please find attached another copy of the SPIF that you received before proceeding with the purchase of <address>. It clearly states that the property had flooded on <date>, which was explained to you in detail before exchange of contracts. 

You thoroughly inspected the house before purchasing and declined to get a survey.

Nothing has been concealed as you were made fully aware of the flood that occurred both in the SPIF and verbally during a viewing.

Kind regards,

you

canaldumidi

As above.

What is the exact wording on the PIF? If it is clear from that that there had been a flood, then their claim will fail and you'll be able to claim back from thm any court costs and personal costs associated with defending the claim.

That assumes of course it actually goes to court.

Small claims court I assume (how much are they claiming?), so no lawyers costs can be claimed by either side.

But I doubt it will get that far subject to 'What is the exact wording on the PIF?'

GDB2222

The TA6 form states:

You should answer the questions based upon information known to you (or, in the case of legal representatives, you or the owner). You are not expected to have expert knowledge of legal or technical matters, or matters that occurred prior to your ownership of the property.

So, assuming the property only flooded once during your ownership, and you declared that, it doesn't matter whether it flooded a dozen times before you owned it.

Can I ask whether part of the garden, perhaps, flooded on other occasions whilst you owned the place, even though the house was spared those times? Otherwise, it's hard to see why the buyers are hounding you.

dodo1990

As far as I understand a house is "sold as seen" and surveys are recommended for this reason. If these chancers had a case, every Tom, !!!!!! and Harry would be trying to sue previous homeowners for anything they could think of!

When we moved into our house it was obvious leaks had occurred that we didn't spot when viewing and didn't come up in our basic survey. In hindsight we should've had a more in-depth survey done, but part-and-parcel of buying a property is expecting to do a bit of maintenance when one moves in (such as new carpets in this case).

Is there any damage to the house that was not disclosed?

Gather all your paperwork, save photos of the house that you have and back them up somewhere. Send a strongly worded letter as @pinkshoes suggested, and wait to see if they try to take you to court. They won't. 

GDB2222

It's interesting that there's no definition of 'flood' in the TA6. We are on clay soil, and if it rains heavily the garden can become quite sodden. It wouldn't occur to me to declare that, though. 

Jude57

Mr2018 said:

Hi everyone.

I am currently in the initial stages of a claim being made against me following the sale of my property.  The buyers are claiming misrepresentation of the information I provided following a flooding incident and are claiming damages to rectify the problem (carpets etc).  The background is this:

The House:

My partner (at the time, now separated) and I purchased the new build property in June 2017.  Due to my personal circumstances, I was unable to maintain payments on the house after my partner left and proceeded to sell it in 2020.  I used a full service estate agents who did all the viewings and negotiated the final price which was BMV due to needing a quick sale.  On the day, I agreed to meet the buyers at the property to hand over keys.  I then spent a hour talking to the new buyers and showed them around the house explaining where meters and stop taps were, how the heating worked etc.  They even asked where the water got in the house and I showed them! (the incident I explain below). This was all very amicable and friendly and we parted ways.

The Incident:

In Aug 2020 the house suffered from a surface water flood.  The main road at the top of the new estate (which is higher than the estate) flooded due to a blocked drain being unable to handle the amount of water during the storm.  This then overflowed the pavement and ran down the estate, passing through three house down the line of houses before reaching mine.  I suffered minimal damage, with the integral garage (which is approx 6" lower then the main ground floor of the building) getting water in it and some dampness to the ground floor carpets.  I shampooed the carpets and disinfected the garage and made no claim on my insurance.  The neighbouring houses were hit worse and did make claims on their insurance.  In Oct 2020 the same happened following another heavy rain fall, fortunately for me this was during the day and the fire service came and drained the water before it reached my house, but neighbours did experience some more minor flooding again.  The drains were then unblocked and prior to the sale of the house, there were no further incidents while I lived there.

The claim:

My solicitors for the house sale received some communication from the buyers solicitors initially bringing the case stating that they told they property had not flooded when clearly it had (their words), they believed the furniture had been moved to cover up signs and most importantly confirmed that they did not have a survey done as they relied on my representation.  As this time my conveyancing solicitor advised me to do nothing as this seemed an attempt to get me to panic and try and resolve quickly with an offer.  I took no action.  This was then followed up with another letter stating they were led to believe the property had never flooded and this was blatantly untrue and a gross misrepresentation, I had signed the property information form (PIF) but they have discover it has flooded 3 times! The also state the windows were open to disguise the smell under the pretence of Covid rules and some other claims of why their clients felt it was hidden.  At this point, I asked for the PIF to be resent to them as I had declared on the PIF the flooding incident! (one incident, not the 3 they claim to have happened).  It all went quiet for 4 months until another letter now saying they have done further investigation and it is not sufficed to just say "It has flooded" (which I did not, I explained the circumstances as well).  They go on to say it is clear efforts were made to conceal the extend of the flooding and reiterate some points previously made (windows open, furniture etc - all untrue btw).  They do then reference the PIF again and the point to the question about a dispute about the property or a property nearby, I have ticked no here when then neighbours are unhappy with the flooding of their home and are in dialogue with the builders.  This is potentially an oversight on my part.  Aside from this, there are a number of untruths and inconsistencies in their letters, including a complete change of stance re knowing about the flooding.

I understand this is a potentially a bit of fragmented or hard to follow story and obviously has bias as I have wrote it, but has anyone ever been in a similar position or does anyone have any knowledge or expertise that could educate me a bit more.  I am unsure how to defend it. I have sought legal advice from free initial consultations which range from a strongly worded letter to try make them go away through to mediation to mitigate my costs as much as possible.  But none of these consultations have had the time to consider all the facts, they need instructing to do that, so they are just general advice. Solicitors costs to do this are so high and my circumstances mean I just don't have that kind of money.  My personal view is I have done nothing wrong and this is frivolous attempt to have their carpets changed.  That I have given them enough information regarding the flooding for them to do their own checks and ask any questions, which they failed to do and not having a survey done then they have failed to do what they should to cover them under 'buyer beware'.  But very keen to hear other peoples views and experiences.  

I'm not asking for legal advice.

Thank you for taking the time to read and appreciate any replies.

Have you checked whether you have any legal cover with insurance, bank account, membership of professional body or trades union, or through an Employee Assistance Scheme at work? If you do, now's the time to make use of it. Otherwise, you could see if there's a Law Clinic in your area. Your local University Law Department might be prepared to help with your case as a good example of law in practice. There's also Citizens Advice who sometimes have links to local solicitors who can help for free. You could try the legalbeagles forums:

https://legalbeagles.info/forums/

It sounds as though, so far, all you've received are letters from their solicitors (?) making these claims, but no actual Court papers? Before commencing Court proceedings the purchasers or their solicitors would have to send you a Letter Before Action, clearly setting out their case and what remedy they are seeking. After that, they could issue proceedings via Money Claim online. The process they or their solicitors would have to follow is here:

https://www.gov.uk/make-court-claim-for-money 

They will need to demonstrate that they were misled, and that they suffered a quantifiable loss as a result. They will be expected to mitigate (minimise) any loss. There's also an expectation that any claim will be lodged in a timely manner. The four month gap is hardly timely.

Until and unless the purchasers issue proceedings via the Court, it's just hot air and I agree, it certainly seems likely they just want new carpets. I'd say to seek further advice as above but don't respond to any letters UNLESS they are from the Court. Remember, their solicitors don't need proof that you've done anything wrong before sending a letter. They WILL need proof if it goes to Court.

To end on a lighter note, I'd be tempted to reply 'I refer your clients to the response given in Arkell v Pressdram'. Look it up, it a perfect response to chancers.

Or you could quote Her Majesty: 'Recollections may vary'.

Mr2018

Thank you all for the replies.  To address some the questions:

They want damages to items they have discovered after the sale but were 'damaged' by the flood prior to the sale.  To the value of £9,000 they are asking for.  New carpets, skirting boards etc.  

The exact wording I put on the PIF was [ticketed yes to question has the property flooded] "Aug 20 - Road drain blocked by leaves, resulted in surface water / rainfall building up from heavy storm that overwhelmed blocked drain and entered integral garage. Drains have been unblocked since."

2 months later (Oct 20) there was another heavy storm prior to the drains being unblocked and the same happened to my neighbours to a lower degree, BUT it did not enter my property.  There was standing water on the lawn that adjoins my neighbours property and the footpath around one side of my house, but rain gathers there are a 'normal' rainy day.  So in my view this 2nd one didn't happen/count for me.  There was never a 3rd, I have no idea where this has come from.

I am slightly concerned that in their last letter they make reference to (for the first time) the question around known disputes, which I took as neighbours feud, access etc, so I ticked No.  I suppose it could be deemed my knowledge that the neighbours are not happy are in dialogue with the builders regarding the drain (why it blocked) is a known dispute and I should have put yes? 

I do not believe there is any damage to house that was not declared.  They declared there was a smell coming from the carpets and they all needed replacing.  They claim they did not smell this on viewings as I had all the windows open.  They viewed it at the height on the pandemic just after the first big lock down reopening so it was advised etc, they also claimed initially that I had moved furniture to cover up signs, but I have the photos taken for Rightmove taken prior to the flooding and nothing had moved.

I suppose summarising it, it comes down to this.  I think now they believe prior to the sale that it 'only' flooded the garage and convinced themselves it did not get into the house and now they are convinced it did get the house quiet badly.  I put "entered the integral" garage not limited to. They had access to this information prior to committing to the sale.  I also have an email from the estate agents of a conversation they had where the flooding was mentioned and the buyer was not "unduly concerned".  So have I unintentionally mislead them by putting in the garage* or did they have enough information to investigate, ask questions, do a survey etc and failed to do any of that.  So they have not done their due diligence under Caveat Emptor (or buyer beware)

*note the full extent of the flooding was the integral garage and the ground floor carpets were damp to touch (I'm guessing from wet foundations). The garage was disinfected and carpets shampooed (twice) and they were fine.  I lived there for a further 9 months with them with no smell.

If I do nothing and they take it to court, what happens then? Should I try and avoid it going to court through letters or an offer (I really don't want to give them a penny).

sheepenhurder

Solicitors in general breathe hot air whilst chair swinging, its all bluff. Anyone who doesn't get any form of house purchase survey needs to find a brain. We move a lot and would never ever think of buying a property without any form of report (normally the highest type). Notice these buyers are claiming 9k which is just below the Small Claims level of claim of 10k. Let them do their worst which is what they're anchoring after anyway. If it did go court, any judge with common sense will realise what a load of cobblers it is and throw it out. Do some background checking on these people, its amazing what info can be found on the net. Might discover they have done this type of thing before as well.  

GoogleMeNow

The buyers and the buyer's solicitor would have received a copy of the PIF during the course of the conveyancing.  You mentioned the flood on that form, but did the buyers or their solicitor raise any enquiries about the flooding?  I'd suggest that if they wanted to find out more about the flooding before going ahead with the purchase, they/their solicitors should have raised enquiries on it and the buyer's should have commissioned a survey.  Did they obtain searches?  If so, did their solicitor raise any enquiries about flooding based on the search results? 

If the buyers contacted their solicitor after the purchase complaining about this, then the solicitor would have probably agreed to write to your solicitor with their complaint, to appease them.  It does not mean that their solicitor believes they have any chance of procuring compensation from you.  It is buyer's beware and it seems to me that they failed to do their due diligence.  I think you should ignore this.