Nobody’s perfect, and that applies to homes as well as people. If you are trying to sell a property, it may be tempting to try to hide any defects that could put off buyers, but this is never a good idea.
The first and most important reason is legal: while the general principle of “caveat emptor” (buyer beware) does apply to property sales, if the seller fails to disclose problems that they were aware of – or should reasonably have been aware of - then the buyer could be entitled to make a compensation claim against them on the grounds of misrepresentation.
Even for less serious issues, honesty is the best policy. If you are upfront with potential buyers about problems with your house, they will be able to make an offer based on what they may need to spend to remedy the situation. This will lead to a far smoother and faster transaction than having them uncover a problem during a survey, and then dramatically reducing their offer or pulling out altogether, wasting time and money. If a survey turns up minor problems that have been concealed, they will naturally be suspicious that something more serious could be lurking too.
Here’s our guide to what you need to disclose to buyers, as well as three common physical problems and how to proceed if you want to sell a property affected by them.
In general, caveat emptor applies, which means it is the buyer’s responsibility to inspect the property. The seller is legally obliged to disclose “latent” issues with the building title that could not reasonably be discovered by inspection, such as restrictive covenants or easements – but this does not apply to physical defects.
While there is no legal obligation for the seller to reveal information about such defects voluntarily, they must answer any enquiries about the property honestly and accurately. In practice, this is simplified by filling in a Property Information Form (TA6). Completing the TA6 is not mandatory, but conveyancing solicitors will generally insist on it, as it simplifies the process and failure to do so will be considered a red flag by buyers.
The TA6 form includes questions about the property and its construction, boundaries, disputes, planning issues etc, as well as environmental issues such as flooding, radon gas and pests, including Japanese knotweed. It does not include specific questions about problems such as damp and subsidence, although it does ask about buildings insurance claims and guarantees for work such as damp-proofing and underpinning.
If the seller gives incorrect information on this form, either deliberately or by failing to disclose information they should reasonably be aware of, then a buyer would be likely to have a claim for misrepresentation.
Questions about the property will not be limited to those on the TA6 form. Additional questions from prospective buyers, whether in writing or verbal, could also give rise to a misrepresentation claim, as could physically hiding problems by covering up cracks or painting over damp.
The obvious signs of damp are moisture and mould on walls, carpets and furnishings, but these don’t necessarily indicate a fundamental problem with a property. So the first thing to do is find out what is causing the damp, as it could be relatively straightforward to fix.
There are three main causes of dampness in houses:
Subsidence problems occur when the ground beneath a property moves, causing the building to shift. This can happen for a number of reasons, including:
The most obvious symptom of subsidence is large cracks opening up in walls, especially diagonal cracks across both external and internal walls, but other signs can be floors sinking, wallpaper crinkling in the corners of walls, and doors or windows sticking or failing to fit in their frames properly. Cracks and puddles of standing water on the ground around your house could also be a sign that drainage problems are undermining the soil.
If you suspect subsidence, you will need to call in a surveyor to identify the cause of the problem. This may require monitoring over a period of months. The cost of remedial work will depend on whether the cause is relatively straightforward, such as a nearby tree that can be removed, or whether underpinning is required, in which case the bill could run into tens of thousands. Such work is likely to be covered by buildings insurance (with an excess payable) but it is likely to make it more difficult to get insurance in future.
Japanese knotweed was first introduced to the UK in Victorian times as a garden plant. Nobody realised how invasive it was until it was too late, and it is now a growing menace. While there is limited evidence that the wilder scare stories about knotweed destroying house foundations are true, it nevertheless spreads rapidly and can be extremely difficult to eradicate. Since 1981 it has been illegal to plant Japanese knotweed in the wild or allow it to escape from your garden – although contrary to popular belief it is not a “notifiable weed”, so there is no legal obligation to report it to the authorities if it is growing on your property. However, when you come to sell your property, the TA6 form does specifically ask whether Japanese knotweed is present. Mortgage lenders are unlikely to approve a loan on a property with knotweed until a remediation plan has been put in place. Even infestations on neighbouring properties can affect buyers’ mortgage prospects.
If you suspect a plant could be Japanese knotweed, check a site such as the RHS for identification tips. Knotweed is a perennial plant that dies back in winter and regrows in spring, with distinctive red shoots. It has an extensive root system (rhizomes) that can survive for many years even when the top growth is destroyed, so killing it can require a multi-pronged approach of chemicals, plastic sheeting to smother the shoots and physical removal of soil. Specialist firms can provide advice and produce an eradication plan.
Remedying physical defects is often a lengthy and expensive process. You may not have the funds immediately available, and if you want to move house anyway, is it worth waiting while repairs are carried out?
Where problems can be resolved relatively quickly and cheaply, our advice would be to get them done before selling. A property that requires work will always appeal to a smaller number of buyers than one which is comparatively problem-free. So if, for example, you can solve a damp problem by improving ventilation and maybe replacing a window or two, it makes sense to go ahead. The money you spend is likely to be repaid in a higher selling price.
Major structural problems, or a serious knotweed infestation, present more of a challenge. In an ideal world they would be fixed before putting the property on the market, but that may not be practical. In such cases, we would recommend at least getting professional advice as to the extent of the problem, and obtaining a quote for remedial work. This will allow you to be as open and honest as possible with potential buyers, as you can explain the problem but also present the solution and tell them what it would cost – otherwise they may well err on the side of caution, overestimating the cost and offering a lower price, or walking away altogether. Having a figure for repair work in mind will also enable you to manage your expectations for the price you are likely to achieve.
Yes, you are obliged to disclose remedial work that has been done if a buyer asks: concealing the fact that problems have occurred in the past could also be classed as misrepresentation. In any case, you should ensure that all paperwork, certificates and guarantees covering such work are made available. The TA6 form specifically asks about guarantees or warranties for work such as damp-proofing and underpinning. If you have claimed on buildings insurance to carry out remedial work, this also needs to be disclosed on the form. In the case of Japanese knotweed, the TA6 form asks for details of the management plan in place, along with any specific insurance cover linked to the plan.
Movewise’s property experts will be happy to discuss the best way to sell a problem property. Get in touch with us today.
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