When buying a property is it a case of buyer beware or can I trust the seller not to lie?
- Credit: Nigel Sutton
Crouch End property lawyer Sam Smith warns that while the law requiring sellers to disclose any issues with the state and condition of a property has got stricter, buyers should follow these steps before deciding whether or not to buy.
While the seller is under a duty to disclose certain information about the property and increasingly so following the introduction of the Consumer Protection Regulations (though the effect of these is still untested in the courts and in some respects uncertain), when it comes to the state and condition of the property, the principle of caveat emptor (buyer beware) still very much applies and you are almost entirely reliant on your survey and inspection. There are however a few steps that you can take at the outset of the transaction to put yourself in the best possible position in deciding whether to proceed with a purchase and which will also help you to keep down costs should you decide not to go ahead.
Firstly you can search for all planning applications relating to the property (and in some cases now, building regulations consents) on the Local Authority website. Online searches will also be able to tell you whether a property is in a conservation area and/or is listed which would mean that further planning restrictions and consents would apply.
A word of caution, don’t go so far at this stage to contact the Local Authority as this would invalidate any future indemnity insurance policy designed to protect you against the costs of the Local Authority taking any enforcement action should you wish to go down that route.
Secondly, if you are buying a flat, ask your solicitor for a copy of the lease plan as this will not only show the extent of the demise (ie the boundaries of the property) but also in many cases the internal layout of the flat when the lease was granted. You can then compare this with the estate agent’s plan which will quickly show you if any alterations have been carried out. Note that most leases are available to download from the Land Registry for £3 so your solicitor can obtain this without having to wait for the seller’s solicitor to send contract papers. The same principle applies for freehold properties however the only plan typically available is the title plan which is to a very small scale and often not an accurate representation of the footprint of the building.
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Thirdly ask your solicitor (again if they are proactive they can get these documents online without having to wait for the seller’s solicitors to send them) to advise you on any covenants in the title register and (for leasehold properties) the lease so you know what alterations may require consent and whose consent would be required.
Armed with information from your initial research and advice you can ask your solicitor to raise some specific enquiries of the seller before embarking on further work. Alternatively you could put these to the estate agent to pass to the seller if you didn’t want to engage the solicitor further at this stage. You could also make it a condition of your offer at the very outset that you receive satisfactory replies to these enquiries. Bear in mind however that you cannot rely on any representations by the seller or agent unless these are confirmed in writing via the seller’s solicitors so it is important you inform your solicitor if you have been told anything or been made any promises by the seller or agent.
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All of the above will incur little or no cost. Ultimately however there is no substitute for a full structural survey and better to do this sooner rather than later, to allow enough time for any issues identified to be properly addressed.
While this guide is designed to assist you in avoiding unexpected and potentially costly problems arising from a seller’s lack of disclosure, it should be noted that it may not be possible to see the full picture without your solicitor carrying out a thorough investigation.
As the matter progresses, your solicitor will be able to make further enquiries as more information comes to light as a result of information supplied by the seller, the searches and your survey. This will enable you to come to a fully informed decision before proceeding to exchange of contracts.
Sam joined Streathers LLP in 2006 and was made partner in 2010. He is now head of the north London property departments. Streathers Solicitors is a boutique firm offering services such as private client, commercial, family, property and litigation advice.
Do you have a property question for Sam? Email it to firstname.lastname@example.org or tweet @hamhighproperty