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Caveat Emptor

Anyone buying a home is told of the importance of having a detailed survey – but a question that I’m often asked is, says solicitor Sarah McGregor, “Is a survey really necessary?”

Sarah McGregor

Buyer Beware survey imageEstate agents too are, of course, regularly asked that question, so Sarah’s explanations could be very useful. Having a survey conducted is not a part of the legal process required to purchase a property, however, it is highly recommended that at least a Home Buyer’s Report (survey) is conducted.

This is different to the valuation offered by a mortgage provider. The lender’s valuation ensures the value of the property is correct and that the home is in a fit state to be mortgaged to secure the loan amount.

When a person buys a property in the UK the legal principle of caveat emptor – ‘let the Buyer Beware’ applies.

This means that the seller is not required to disclose unknown defects in the property and it is down to the Buyer to investigate the home they are planning to buy.

Sellers are required to complete a Property Information Form, yet this is limited and additional formal searches may not show issues and defects with the property or the land.

The Seller (or their Agent) must disclose any information they are aware of, yet in reality, the danger is they don’t in case it puts a Buyer off!

CHECK, CHECK AND CHECK AGAIN

Failure to spot a defect before buying could be a very expensive mistake. For example, a Buyer should get the gas, electrics and plumbing checked if no recent test certificate is available from the Seller.

Failure to spot a defect before buying can be a very expensive error.

Sarah McGregor image

Sarah McGregor

If having moved into the home the buyer finds any services unsafe or damaged then the expense will fall on them, unless they can prove misrepresentation by the Seller or their Agent.

If a full professional survey is conducted and it reveals an issue then a buyer may be in a position to renegotiate the sale price to take into consideration some or all of the cost of the works required to remedy the defect.

Common things to check initially when going to view a house are the boiler (especially in the summer when the boiler is likely to be off), ask the Seller/Agent to switch it on, inspect water pressure by turning taps/ shower on and off, flush toilets and check exterior door locks, handles, do the windows open and close etc.

One common thing that Buyers fail to check is behind furniture in the home. It may seem rude to move a wardrobe to see whether it is hiding damp for example, but, of course, if they have a survey it will look at all these things – and it reveals nothing and then they move in and find an issue that the survey should have revealed they may have legal recourse to take action against the surveyor.

THE ROLE OF THE CONVEYANCER

A solicitor/conveyancer is only able to pursue enquiries based on the information provided by the Seller’s property information forms, the Agent’s particulars and by any information provided by the Buyer. They do not physically inspect the property, and solicitors rely on the Agents or the Buyer to provide a copy of the brochure so that we can get a visual of the property.

The National Conveyancing Protocol recommends that solicitors and conveyancers should only ask the Sellers questions which:

  • clarify issues relating to any documents submitted;
  • are relevant to the particular property; or
  • the Buyer has expressly requested.

On top of this they will check the legal title, search results, ensure planning permission and building regulation certificates are in place for any alterations to the home which may stand outside of permitted development and raise enquires based upon the results of these searches and surveys.

WHAT IF…?

A buyers may also say, “If we buy a home without a survey and later want/need to sue the seller, we can.”

However, they should be reminded that it can be expensive to sue a Seller for misrepresentation and, due to the legal principle of ‘Buyer Beware’, the case is not likely to go in favour of the Buyer unless a Seller goes out of their way to hide defects or acts fraudulently by supplying doctored documents – this is very rare.

The best course of action is to factor a survey into the cost of purchasing a home and research the best surveyors near to your property – check the Royal Institution of Chartered Surveyors website to confirm qualification.

Finally, having the right checks conducted ahead of a purchase can help avoid buyers making costly mistakes and significantly reduces the risks of a home purchase ending in tears.

Sarah McGregor is a residential property Solicitor and an Associate at Mackrell Turner Garrett Solicitors.
www.mackrell.com

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