10th Oct 2017

When is flooding not flooding?

Reported in the national press last month was the ongoing case of a family who bought a large house in a sought after area of Newcastle upon Tyne, only to discover the property had a hidden history of flooding. 

As is usual, the sellers completed a Property Information Form which asks questions about the property that a buyer needs to know and which might not be disclosed in title deeds, such as maintenance of boundaries. One of those questions asks if the property has ever suffered from flooding and, if so, what type? The form makes it clear that the question relates to any part of the property and not just buildings and a reply to this question that is anything other than “no” should alert a buyer’s solicitor to ask for further details from the seller’s representative and advise the buyer appropriately.

In case the case in question, the sellers – John and Margaret Corson – answered “no” and the transaction proceeded as normal, with the buyers moving into their beautiful new home just in time to celebrate Christmas 2014 there. 

Less than a year after moving in, Mr and Mrs Edwards, the new owners, awoke one morning after heavy rain to find that the back garden, a particular feature of the property, was under water. This happened a further two times over the next three months and on the third occasion also flooding the basement of the property.

Was this just back luck, down to climate change or something else? The Mr and Mrs Edwards allege that the sellers deliberately misled them during the conveyancing process and that they were well aware of flooding, citing a posting on the seller’s Facebook page showing a photograph of the flooded back garden a couple of years before the property was sold. As a result Mr and Mrs Edwards are taking legal proceedings against their sellers.

The case is currently going through the Courts and so we don’t yet know the final outcome.   However, one only has to Google to see how many cases there have been over the last few years where buyers have claimed against sellers for misrepresentation in the Property Information Form. 

Unusually, Mr and Mrs Edwards are applying to the Court to rescind the Contract, meaning that the property would be transferred back to the sellers, and claiming damages for money they have spent in the purchase and in the few years that they have owned it, such as mortgage repayments.  It will be interesting to follow this case through the Courts as more details may well come to light which might affect the final decision.

So what can we learn from this case so far? 

  • Sellers must realise that they simply have to be truthful when completing Property Information Forms
  • Buyers are entitled to rely on them, meaning they are entitled to take legal proceedings against sellers if the form has deliberately been completed inaccurately

While There is sometimes a temptation when ticking boxes on a pre-printed form not to be as thorough as one could be but this case is perhaps a salutary lesson for everybody to take care.  It is also worth reminding buyers that they too should make proper searches and enquiries when buying a new home – which is after all a huge investment for most of us.  

Diane Scott is a residential property specialist at Berwins where she handles all types of residential conveyancing matters 

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