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When selling a property is the seller and their agent legally obliged to disclose any information that may affect a potential buyer’s decision?

When selling your home you are legally obliged to disclose any information that may affect a potential purchaser’s decision about buying the property.

The sellers needs to ensure their estate agent is adhering to this and other regulations that could leave the seller open to prosecution if they don’t.

There was a generally held belief that the sale or purchase of a property is a transaction covered by Caveat Emptor – let the buyer beware. Which meant that it was up to the buyer to ask the questions and the seller or their agent to give honest answers.

This is no longer the case, however, a since 2013 with the repeal of the Property Misdescriptions Act the sale and advertising of property has come under the 2008 Consumer Protection Against Unfair Trading Regulations (CPR’s).

This really means that the CPR’s require a seller to inform their estate agent – and any potential buyer – of material information that may affect an average consumer’s transactional decision, not only to purchase a property and “any omission that may affect a potential buyer’s decision to view a property”. No longer can you choose what to disclose to your agent or purchaser.

Before marketing a property, a reputable agent is required to ask the seller to fill in a Property Information Questionnaire where the seller can put down any relevant information. This will include issues the seller may have with their boundaries or other disputes with neighbours; notices of any developments nearby; whether the correct approvals have been obtained for building works such as building regulations or the freeholders consent for alterations such as a loft conversion; any significant occurrences at the property, such as a murder or a suicide; and details of any major defects you are aware of.

Some sellers might consider telling a white lie or being rather vague with their answers, but this can come back to haunt the seller, even after the seller has moved out. For example, a seller may say there are no problems with a neighbour when in reality there is an on-going dispute sbout a boundary wall. This is likely to come up in the conveyance process, but if the lie doesn’t come to light until the new buyers have moved in, the buyers can still come after the seller.

There may have been major works carried out on the property – such as underpinning – before the seller bought it. On the form the seller may state that no works have been carried out while they have owned the property. This sort of half-truth could be considered a misrepresentation.

Ultimately this may land the seller in the dock answering criminal proceedings with the potential of hefty fines and in the worst-case imprisonment.

Estate Agents are duty bound to reveal any material information they know – or ought to know – about a property. For instance if a previous sale has fallen through because of defects that came up on the survey, this must be disclosed.

The National Trading Standards Estate Agency Team has recently released updated guidance that all estate agents should be working to. Agents can’t make misleading statements or fail to mention something that may put off ‘an average consumer’. For example the property is situated next door to a school or above a retail outlet this must be mentioned, and any photos of the property can’t be taken in such a way as to conceal them.

Sellers and their agents should not be keeping potential problems quiet, as not only could they be breaking the law, nearly all the information that should be declared is almost certain to come up during the conveyance process. Hidden ‘faults or disputes’ which suddenly appear could lead a buyer to withdraw from the sale, costing both sides a lot of time and money.

A good, reputable agent will know how to deal with this sort of information and how to pass it on to a potential viewer or buyer at the outset in a sensitive and positive way.

It is a legal requirement under The Energy Performance of Buildings Regulations 2012 to ensure that a valid and up-to-date EPC is available when a property is put up for sale or to let. An existing EPC report which has been carried out within the last 10years will suffice, so long as no material works that may affect the EPC rating have been carried out. Be wary of an agent who will allow you to go to market without first obtaining or at the very least commissioning an EPC report as they, and the seller, will be breaking the law.