For those of you who have sold a house recently or are in the process of selling a house then you will undoubtedly recall the forms that are sent to you by your conveyancer at the beginning of the transaction asking for you to reply to pages and pages of standard enquiries relating to your property. The importance of completing these forms correctly, honestly and with as much information as possible cannot be underestimated. In the event that you fail to provide information requested in the form or reply incorrectly then the purchaser of your property may have a cause of action against you for misrepresentation.

A misrepresentation is an untrue statement of fact made by one contracting party to the other which is relied upon by the other and induces him / her to enter into the contract. As a result the other party must suffer loss.

The first element is therefore that the seller has made an untrue statement of fact in the replies to enquiries. Secondly, the buyer must rely upon the information and then enter into the purchase contract in reliance of this. Thirdly, the buyer must suffer loss, i.e. the value of the property is reduced as a result of the information that was not disclosed. It is therefore important that as a Seller, you complete the forms as accurately, honestly and with all information available. As a buyer, you must read the forms when they are sent to you by your conveyancer. If you cannot show, as a buyer, that you relied upon the information provided then there can be no action for misrepresentation.

If you are in the process of providing replies to enquiries on your sale (or will be shortly) then you should note that the replies do not automatically form part of the contract between you and the buyer (unless the contract states otherwise) but as these can be relied upon by a buyer, due consideration will need to be given before answers to the enquiries are given. Sellers must also remember that if anything changes or happens during the transaction which would alter the replies that you have given then you must notify your conveyancer as soon as possible so that the new and correct information can be passed on to the buyer. Again, failure to do so could potentially result in a claim against you for misrepresentation.

If you are unsure about how you should respond to any enquiries then you should speak with your conveyancer and you should also bear in mind that if you provide a response of “no” to any of the enquiries then this implies that you are certain of your response. If you are unsure then you should always indicate that you “don’t know.”

There is a Law Society Guide to assist Sellers with the completion of the Property Information Forms. You can view this by going to the following web link: http://www.lawsociety.org.uk/advice/articles/ta6-property-information-form-explanatory-notes/

Dean Wilson LLP

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