The danger of misleading a buyer on a Property Information Form

Whatever you’re buying – a car, a kitchen table, or a house – the legal principle of “caveat emptor” (Latin for “let the buyer beware“) means that unless the seller makes a false representation about the item, you purchase at your own risk. The phrase “sold as seen” often used by sellers in classified ads, simply underlines that position.

So, as a homebuyer, the onus is on you to carry out all necessary checks and investigations on the property. That’s why your conveyancing solicitor conducts searches, and you should arrange a survey. However, although there’s no duty on the seller to disclose any issues with the property voluntarily, they must answer any enquiries accurately and honestly. Those enquiries begin with the Property Information Form (TA6).

Law Society Property Information Form

The Law Society produces a range of conveyancing forms, including the Property Information Form (TA6). The TA6 is a long and detailed questionnaire requesting information about the property and the surrounding area within the seller’s knowledge. And the seller’s replies usually form the basis of further specific enquiries during the conveyancing process. Of course, the seller must also answer those additional enquiries accurately and honestly.

The Property Information Form and replies to further enquiries form part of the contract between the buyer and seller. Therefore, if the seller:

• knowingly misrepresents any of the answers on the TA6 or in replies to further enquiries; and
• the buyer relies on those representations in purchasing the property,

the buyer can sue for breach of contract.

The instructions to the seller on page 2 of the Property Information Form are very clear and include the following:

• It is very important that your answers are accurate. If you give incorrect or incomplete information to the buyer (on this form or otherwise in writing or in conversation, whether through your estate agent or solicitor or directly to the buyer), the buyer may make a claim for compensation from you or refuse to complete the purchase.
• If you later become aware of any information which would alter any replies you have given, you must inform your solicitor immediately. This is as important as giving the right answers in the first place. Do not change any arrangements concerning the property with anyone (such as a tenant or neighbour) without first consulting your solicitor.

Property Information Form misrepresentation

A recent and well-publicised case, Downing v Henderson, highlights the danger of misleading a buyer on a Property Information Form.

When selling his property to Mr Downing, Mr Henderson answered “no” to the question on the TA6 asking whether Japanese Knotweed affected the property. But soon after moving in, Mr Downing discovered Japanese Knotweed canes in the garden, growing behind a St John’s Wort bush. Subsequently, Mr Henderson argued that he “reasonably believed” he was telling the truth.

Japanese Knotweed is an invasive species and an ever-increasing problem in the UK. It grows remarkably fast (sometimes 30 to 40 centimetres per week), causes structural property damage and is difficult and expensive to eradicate.

Mr Downing brought a claim against Mr Henderson for misrepresentation. Mr Henderson asserted that he had not seen the Japanese Knotweed canes growing behind the bush. However, it emerged in evidence that the plant had grown up to 2 metres high in the past and was treated with herbicide. Finding Mr Henderson had misrepresented the position and that Mr Downing had relied on that misrepresentation, the judge ordered Mr Henderson to pay damages and costs exceeding £200,000.

Lessons

The clear lesson is that if you’re a seller and don’t know the answer to a question on the TA6, you should say so. And if you are unsure or don’t understand the meaning of any of the questions, always ask your conveyancing solicitor for guidance. And as for blatantly misleading a buyer, that can prove very expensive, as Mr Henderson discovered.