House with previous subsidence claim not disclosed - pre-exhange

niceguyed

Hi everyone, would welcome a view on this.  Keeping a very long story short we had an offer accepted on a property a couple of months ago.  The chain was then complete (FTB, us and purchase with no upward chain).  On the first viewing the agent disclosed for our peace of mind the vendors had a full structural survey completed in 2013 and there were no major issues.  In subsequent legal enquiries, the vendor responded no past subsidence or underpinning and on the TA6 gave no indication of special insurance terms/conditions.  

Fast forward to last week.  Our surveyor reports several areas of structural movement, in his opinion subsidence  - and he believed there had been a past repair.  An added layer of complication is the house is in trust to the daughters of vendor who are elderly (one passed away and one in hospital).  Advice was the house needed a full structural survey and investigations of a paper trail for previous repairs.  

On speaking to the agent the initial feedback was the vendor knew nothing about subsidence.  We put forward our position to prove our surveyor wrong and pay for a full SE survey or we would withdraw.  The last we heard yesterday was the agent was helping them pull together a quote for a structural engineer survey.  We'd already advised the agent had we known of potential subsidence we would certainly not have made an offer.  

Well today I get an email off the agent.  The vendor has magically found a cert of structural adequacy for subsidence damage from 2011 which preceded their 2013 purchase but was provided to them, the work was completed through the insurer at the time.  We have that copy of the full works.

To say we are gutted is an understatement.  Our solicitor is fully aware and I see no option but for us to pull out.  I think even if we wanted to continue our lender would allow it given our surveyor believes the subsidence is progressive and the previous repairs have failed.  When I advised our solicitor I asked if it could be proven that if the vendor has omitted details on the enquiries and the TA6 was incorrect would we have any recourse?  The answer was as I feared, caveat emptor and no contract so nothing to sue for.  It would seem to me there's only recourse if we actually purchased and then it could be proven there were inaccuracies during enquiries. 

So what I wanted to check with you knowledgeable folk is this - Am I correct in thinking even though I have firm evidence from the vendor that the property had a subsidence repair and this was not disclosed during enquiries (as well as the insurance answers being incorrect),  I have to suck it up and have zero recourse?  Rather painfully I worked out this has cost us £1500 in legal fees/searches/survey all because the vendor has either misled or been careless with their answers.  I know what you're going to say but for my sanity I just wanted to ask.  

Obviously we are not the only victim as our buyers have been so very patient, but tonight we've decided we are going to break chain so the sale can proceed.  

Thanks everyone.  

FreeBear

niceguyed said: The answer was as I feared, caveat emptor and no contract so nothing to sue for.  It would seem to me there's only recourse if we actually purchased and then it could be proven there were inaccuracies during enquiries.

If you were to proceed with the purchase knowing that the TA6 contained incorrect information and subsequently found out about the subsidence/underpinning prior to exchange, I suspect any legal claim would fail.

tooldle

Get a structural engineer to take a look. Often when a subsidence repair (underpin) is carried out, the interior signs are ignored, for example out of square door frames etc. What your survey has seen may be sign of historic movement (i.e. fixed) rather than ongoing movement. Historic movement is not an issue, it is ongoing movement that would be a red flag. Good luck.
I've previously owned an underpinned house.

trakky14

Your solicitor is obligated to inform your lender, if the survey suggests this is an ongoing issue i would be surprised if they will lend on it (or any lender)...it should be priced accordingly but I suspect it isn't? Also you'd need to run it by the insurance. Who may or may not approve it.

We found out 2 weeks ago (just before we exchange too!) the house we are buying was underpinned, they forgot to mention it too! However it was done as part of a barn conversion 17yrs ago and the surveyor who by chance had done a full structural for us said it was fine as did our insurance. We had to wait about a week for the lender to give it the ok once they were notified and thankfully its all fine. The underpinning was done as a preventative measure during the conversion rather than because there was subsidence, so we had a positive outcome. 

I feel for you, its so disappointing, they are silly for not mentioning it before, they will struggle to sell that house now for the price they wanted. 

TBagpuss

I don't think you have any come back. From what you say, it doesn't sound as though the seller deliberately misled you - especially as it is the daughters who are selling, it sounds as thoug hthey were not aware of any history and only found the documentation when they searched after it was queried.

They could pull out at any stage so while its frustratingyou had no ertianty that the sale would go through, so I think you would struggle. 

SuzeQStan

niceguyed said:

We'd already advised the agent had we known of potential subsidence we would certainly not have made an offer.  

The vendor has magically found a cert of structural adequacy for subsidence damage from 2011 which preceded their 2013 purchase but was provided to them, the work was completed through the insurer at the time.  We have that copy of the full works.

When I advised our solicitor I asked if it could be proven that if the vendor has omitted details on the enquiries and the TA6 was incorrect would we have any recourse?  The answer was as I feared, caveat emptor and no contract so nothing to sue for.  It would seem to me there's only recourse if we actually purchased and then it could be proven there were inaccuracies during enquiries. 

I worked out this has cost us £1500 in legal fees/searches/survey all because the vendor has either misled or been careless with their answers. 

Obviously we are not the only victim as our buyers have been so very patient, but tonight we've decided we are going to break chain so the sale can proceed.  

Firstly sincere commiserations for the situation you find yourselves in - IMO there is little in life more stressful than property purchase. I’m originally from the USA - and it has always astonished me how little recourse there is in UK for when things go wrong in the property buying process - gazumping, sellers/buyers pulling their home/offers from market at will. We had a similar-ish situation several years ago paying for a tree survey/further expensive surveys for a home we had an accepted offer on to the tune of about £800 and the seller decided to drop out a month later leaving us out of pocket for what came down to them not being very serious sellers in the 1st place.
 You would like to think that your seller would have to pay reasonable costs that you incurred in good faith in relation to their property which they misrepresented.
Is small claims court not an option?

user1977

SuzeQStan said:

niceguyed said:

We'd already advised the agent had we known of potential subsidence we would certainly not have made an offer.  

The vendor has magically found a cert of structural adequacy for subsidence damage from 2011 which preceded their 2013 purchase but was provided to them, the work was completed through the insurer at the time.  We have that copy of the full works.

When I advised our solicitor I asked if it could be proven that if the vendor has omitted details on the enquiries and the TA6 was incorrect would we have any recourse?  The answer was as I feared, caveat emptor and no contract so nothing to sue for.  It would seem to me there's only recourse if we actually purchased and then it could be proven there were inaccuracies during enquiries. 

I worked out this has cost us £1500 in legal fees/searches/survey all because the vendor has either misled or been careless with their answers. 

Obviously we are not the only victim as our buyers have been so very patient, but tonight we've decided we are going to break chain so the sale can proceed.  

Is small claims court not an option?

No, as already explained by others. No "misrepresentation" as the question hadn't even been asked, and it sounds like the vendors in this case genuinely didn't know anyway.

pinkteapot

It's an awful, stressful situation to be in, but in a few weeks' time you'll be thanking your lucky stars this came out before exchange, rather than after. While you'd have had recourse if the TA6 was incorrect, it would have been a VERY messy situation. 

While the comment above is correct that historical movement may no longer be an issue at all, previously underpinned houses do have a stigma which is likely to affect the value, so if you go ahead then do re-consider your offer amount. It can also be tricky to get insurance (you may need to stay with the insurer the vendor was using, so it could cost you a bit more if you can't shop around).

SuzeQStan

@user1977
thanks for your response - and apologies if I annoyed you for asking a question you believe others had already answered. I still have to ask: how do you know the question hadn’t been asked? I would be very surprised if it hadn’t as I remember having to fill out paper work when listing our house for sale in the UK that no structural issues existed in our property. 

user1977

SuzeQStan said:

how do you know the question hadn’t been asked? I would be very surprised if it hadn’t as I remember having to fill out paper work when listing our house for sale that no structural issues existed in our property.

The OP hadn't asked it (if they had, I presume they would have said so - but it would be unusual to be asking prior to offering).

Even if the agents had asked their clients, I expect that would only have been to the extent the vendors were aware - and from the discussion above it appears nobody knew until they started digging through the family member's papers.

If the property is now remarketed then the agents ought to be declaring it as an issue of which they now have actual knowledge.

SuzeQStan

Maybe we can think the best of the seller and say they didn’t know about the subsidence. But isn’t there a good chance they hoped no survey would be conducted and the structural issues would not come to light? To be fair it sounds like OP has had a lucky escape - just a shame it was so costly