Advert said garage and driveway... Searches say different

prowla

Lyd00 said:

prowla said:

So, to clarify: the property is less than what was described and the question is whether it's therefore worth less?

Yeah, I went back and offered less which was rejected. So now I've to decide whether to go ahead or walk away and lose about £1,300 

Hmmm - I'd be inclined to walk away on the basis that they tried it on; the searches and so-on (which is what you've paid for, I guess) have done their job.

eddddy

Ath_Wat said:
The vendor is at fault, they should have known better, not the EA.

The Property Ombudsman doesn't agree with you. The EA is a property professional, the vendor is not.

Referring back to this case: https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/an-undropped-kerb-misleading-action

• Presumably the vendor said the property had parking
• The vendor signed the property details saying the property had parking

• But the Ombudsman said the EA should have realised that the vendor was wrong and the property didn't have parking
• The EA was ordered to pay compensation

• The OP seems to have an even stronger case. The EA has completely shot themselves in the foot - the EA said that OP should have known it wasn't a driveway. So clearly, the EA should have known as well.

Ath_Wat said:

What do you suggest the estate agent should have done when the vendor told them they owned that land?  Checked the deeds?  No estate agent does that.

It's not a matter of what I suggest, It's a matter of what the Ombudsman requires:

7i

The Consumer Protection from Unfair Trading Regulations 2008 require you to disclose any information of which you are aware or should be aware of in relation to the property in a clear, intelligible and timely fashion and to take all reasonable steps to ensure that all statements that you make about a property, whether oral, pictorial or written, are accurate and are not misleading.

Link: https://www.tpos.co.uk/images/codes-of-practice/TPOE27-8_Code_of_Practice_for_Residential_Estate_Agents_A4_FINAL.pdf

Having seen the photo provided by the OP, I think it would be a reasonable step for the EA to challenge the vendor about the parking - and download a title plan for £3 to check it.

(The Ombudsman requires the EA to download a copy of the title register for £3 - so downloading the title plan at the same time for an extra £3 isn't really a big deal.)

Or do you thank that's not reasonable?

user1977

eddddy said:

Having seen the photo provided by the OP, I think it would be a reasonable step for the EA to challenge the vendor about the parking - and download a title plan for £3 to check it.

Or do you thank that's not reasonable?

The question is how far does this responsibility go? It's often not as straightforward a matter as merely glancing at a title plan (have you checked there haven't been subsequent transactions changing the position, for example? Have you read and interpreted all of the covenants correctly?). Making sense of the title (or the vendor's entitlement to sell) can involve hundreds of pounds worth of legal time and searches - that's why the parties employ solicitors.

So is there an expectation that the EA does their own, independent, investigation of title before daring to market the property - if so, who's paying for that? Or are they fine as long as they add massive disclaimers to everything?

eddddy

user1977 said:

The question is how far does this responsibility go? It's often not as straightforward a matter as merely glancing at a title plan (have you checked there haven't been subsequent transactions changing the position, for example? Have you read and interpreted all of the covenants correctly?). Making sense of the title (or the vendor's entitlement to sell) can involve hundreds of pounds worth of legal time and searches - that's why the parties employ solicitors.

So is there an expectation that the EA does their own, independent, investigation of title before daring to market the property - if so, who's paying for that? Or are they fine as long as they add massive disclaimers to everything?

You're a solicitor, so you're probably more familiar with the legal interpretation of "reasonable" than me.

I this case, ultimately it would be the decision of the Property Ombudsman that determines what is "reasonable".  (As in other cases, it's ultimately down to a court to decide what is "reasonable".)


The Property Ombudsman requires EAs to download Title Registers to make cursory checks of ownership, tenure etc. I'm sure that's not 100% foolproof either.

With dubious looking parking arrangements, I suspect the Property Ombudsman would decide that the EA should at least make the cursory check of downloading the title plan.

If the EA had downloaded the title plan and everything looked OK, I suspect the Ombudsman would have decided that the EA had made "reasonable" checks, and no compensation was payable.

Lyd00

As a side note is there such a thing as asking to see how many offers were made under the "best and final" situation under the freedom of information act or something? Because I'm convinced I was bidding against myself.

I was told 8 offers had been made in total which changed to 6 when I queried how many were taking part in this stage. 3 apparently took part in best and final but I'm dubious because my ex has just marketed his house and had the same EA round to value it and the guy said "and yeah we'll tell them it's going to best and final to generate some better offers". It makes me think it was all smoke and mirrors 

user1977

Lyd00 said:

As a side note is there such a thing as asking to see how many offers were made under the "best and final" situation under the freedom of information act or something? 

Freedom of Information only applies to public bodies. Not relevant here.

Ath_Wat

eddddy said:

Ath_Wat said:
The vendor is at fault, they should have known better, not the EA.

The Property Ombudsman doesn't agree with you. The EA is a property professional, the vendor is not.

Referring back to this case: https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/an-undropped-kerb-misleading-action

• Presumably the vendor said the property had parking
• The vendor signed the property details saying the property had parking

• But the Ombudsman said the EA should have realised that the vendor was wrong and the property didn't have parking
• The EA was ordered to pay compensation

• The OP seems to have an even stronger case. The EA has completely shot themselves in the foot - the EA said that OP should have known it wasn't a driveway. So clearly, the EA should have known as well.

Ath_Wat said:

What do you suggest the estate agent should have done when the vendor told them they owned that land?  Checked the deeds?  No estate agent does that.

It's not a matter of what I suggest, It's a matter of what the Ombudsman requires:

7i

The Consumer Protection from Unfair Trading Regulations 2008 require you to disclose any information of which you are aware or should be aware of in relation to the property in a clear, intelligible and timely fashion and to take all reasonable steps to ensure that all statements that you make about a property, whether oral, pictorial or written, are accurate and are not misleading.

Link: https://www.tpos.co.uk/images/codes-of-practice/TPOE27-8_Code_of_Practice_for_Residential_Estate_Agents_A4_FINAL.pdf

Having seen the photo provided by the OP, I think it would be a reasonable step for the EA to challenge the vendor about the parking - and download a title plan for £3 to check it.

(The Ombudsman requires the EA to download a copy of the title register for £3 - so downloading the title plan at the same time for an extra £3 isn't really a big deal.)

Or do you thank that's not reasonable?

That case clearly state that the EA should have known because there was no dropped kerb

In this case there is a dropped kerb.

Why do you claim the EA should have known the vendor did not own land they claimed to own?  It doesn't matter if it's a "driveway", or that it "looks like a path"  There is no legal definition of a driveway and you can park on any land you own  as long as you have access to it from the road. Which makes it a driveway, whatever it looks like. The issue is they don't OWN it.  The ombudsman does NOT expect EAs to check deeds.

And no, I don't think estate agents should check what they are told by sellers about boundaries, they never have, because it's a solicitor's job.  Nor do I see why on earth you claim the EA should apologise to the  vendor for the vendor having lied to them.

eddddy

Lyd00 said:

As a side note is there such a thing as asking to see how many offers were made under the "best and final" situation under the freedom of information act or something? Because I'm convinced I was bidding against myself.

I was told 8 offers had been made in total which changed to 6 when I queried how many were taking part in this stage. 3 apparently took part in best and final but I'm dubious because my ex has just marketed his house and had the same EA round to value it and the guy said "and yeah we'll tell them it's going to best and final to generate some better offers". It makes me think it was all smoke and mirrors 

It would be illegal for EA to invent offers, or to give you any misleading information about the offers.

However, I guess the EAs comments were verbal rather than written - so if they have said anything misleading, I suspect they'd deny it.

If the EA is a member of the Property Ombudsman Scheme and you decide to make a complaint, you could mention this. The Ombudsman will almost certainly ask to see their files, which would show how many offers were made, etc. But as I say, the EA would probably deny that they said anything misleading to you, so I suspect no action would be taken.

eddddy

Ath_Wat said:

The ombudsman does NOT expect EAs to check deeds.

Yes they do.

5e You should take reasonable steps to satisfy yourself that the seller is entitled to instruct you (such as obtaining title information from the Land Registry...

7k In accordance with paragraph 5e, where the title is registered at HM Land Registry, you should seek to obtain title information to verify the tenure of the property...

7i ...take all reasonable steps to ensure that all statements that you make about a property, whether oral, pictorial or written, are accurate and are not misleading

Link: https://www.tpos.co.uk/images/codes-of-practice/TPOE27-8_Code_of_Practice_for_Residential_Estate_Agents_A4_FINAL.pdf

Having initially claimed it was a driveway, the estate agent has now admitted that it clearly isn't a driveway. i.e. They've admitted their mistake:

Lyd00 said:

The estate agent was so rude to me this morning basically saying how dare I ask for another reduction and that I should have known that it wasn't a driveway. 

Ath_Wat

eddddy said:

Ath_Wat said:

The ombudsman does NOT expect EAs to check deeds.

Yes they do.

5e You should take reasonable steps to satisfy yourself that the seller is entitled to instruct you (such as obtaining title information from the Land Registry...

7k In accordance with paragraph 5e, where the title is registered at HM Land Registry, you should seek to obtain title information to verify the tenure of the property...

7i ...take all reasonable steps to ensure that all statements that you make about a property, whether oral, pictorial or written, are accurate and are not misleading

Link: https://www.tpos.co.uk/images/codes-of-practice/TPOE27-8_Code_of_Practice_for_Residential_Estate_Agents_A4_FINAL.pdf

Having initially claimed it was a driveway, the estate agent has now admitted that it clearly isn't a driveway. i.e. They've admitted their mistake:

Lyd00 said:

The estate agent was so rude to me this morning basically saying how dare I ask for another reduction and that I should have known that it wasn't a driveway. 

Title information.  Not boundaries.

For the nth time, "it's not a driveway" is completely immaterial; the reason the EA has given that meaningless answer is because the OP has gone in saying "it's not a driveway" rather than "That's not yours to sell".   If it was theirs, there wouldn't be a problem; they would have access to park cars on it, hence, it's a "driveway".  The problem is it's not theirs.  A side lawn with gravel poured on it is a "driveway" as long you can access it with a vehicle.  It's a piece of land that cars could be parked on that they said they owned, but they don't own.  Forget "driveway".