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Right of way

Katrine Sporle imageThis case study concerns a dispute referred to The Property Ombudsman (TPO) from buyers. The complaint that the Ombudsman was asked to consider concerned an alleged misrepresentation of the property by the agent.

No Entry imageThe buyers explained that they purchased the property primarily because it offered rear vehicular access to two neighbouring properties that they already owned. Both of these properties were without parking facilities.

They informed the TPO Office that the agent was aware of this and pointed out that the property was advertised as benefiting from vehicular access to the rear. However, the buyers went on to explain that once they had completed on the purchase, the owner of a neighbouring property advised that the land over which they would have to cross to access the rear of the property belonged to her and they did not have a right of way over that land.

The seller was surprised about the vehicular access issue, as access had been gained for 40 years.

The agent argued that prior to marketing the property the seller confirmed that there were no restrictions affecting the property. They also approved the sales particulars which described the property as benefiting from rear vehicular access through double gates leading to a garage.

INVESTIGATION

Under Paragraph 7i of the TPO Code of Practice, the agent was obligated to act in accordance with the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), including the disclosure of all information of which they were aware or should be aware of in relation to the property in a clear and timely manner, and to take all reasonable steps to ensure that statements made about the property were accurate and not misleading. With this in mind, the Ombudsman noted the following:

The seller had authorised the sales particulars as accurate. This follows Paragraph 7j of the TPO Codes of Practice that states all written details should be agreed with the seller.

The seller had further confirmed with the agent that there were no restrictions affecting the property and that it was to be sold with access to the rear for which there was a right of way.

The photographs of the property provided by the buyers showed that there were double gates to the rear of the property to allow vehicular access to parking in the property’s garden. Nothing in those photographs suggested that access was restricted and the appearance was that access had been gained across the land by the previous residents of the property for the purpose of parking.

The seller was surprised when the issue of vehicular access was brought to his attention. He advised the agent that access across the land had been gained for some 40 years.

OUTCOME

It was appreciated that the buyers considered that the agent should have obtained documentary evidence of the right of way allowing for rear access to the property before marketing commenced. However, as agents, they did not have routine access to the property’s title documentation, nor are they legal experts, and they would not have been expected to request such documentation. This is, of course, unless they were put on notice that information they were provided by the seller was inaccurate.

Having examined the agent’s branch file, no evidence was found to suggest that they should have been aware that information provided was inaccurate. It was clear that the agent had taken all steps that were reasonable in the circumstances to ensure that their description of the property was correct, and that the requirements of the TPO Code of Practice in this regard were met.

Access to the property is a matter that the buyer should have confirmed independently with their solicitor prior to proceeding to exchange of contracts.

It was considered that the agent acted in good faith in marketing the property and in facilitating the sale to the buyers. This complaint was therefore not supported.

LEARNING

In this case seeking the seller’s confirmation of the vehicular access coupled with photographs documenting its previous use constituted reasonable steps in accordance with Paragraph 7i of the TPO Code of Practice. However, where there is an aspect of a property that raises any doubt, this should not be included in any sales particulars until a time comes when documented steps have been taken to resolve that uncertainty.

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