“Sellers shouldn’t shift a shed without telling the buyer.”

Are garden sheds part of the sale? You need to be clear, either way, says Christopher Hamer, The Property Ombudsman.

Christopher Hamer
Christopher Hamer
This case concerned the removal of a shed from the property between the Buyer making an acceptable offer and exchange of contracts. The Buyer argued that during his two viewings of the property the inclusion of the garden shed was highlighted to him by the Agent’s representative as well as it appearing in photographs marketing the property, therefore, he expected it to be included in the sale. The Agent responded stating that their representative could not recall any conversations regarding the shed at the time of the viewings and pointing out that the shed was not referred to in the sales particulars or in their marketing of the property.

property_inclusion_buyers

Photos of the empty property clearly showed the shed, giving the impression it was included.”

Whilst I was unable to determine precisely what was said during the viewings, in coming to a decision on this complaint, I had particular regard to paragraph 7i the TPO Code of Practice, the principles of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the obligation to disclose any material information about a property of which the agent was aware or should reasonably be aware of.

Having examined the sales particulars, I noted that they did not make any written reference to the garden shed. However, I did not consider it sufficient for the Agent to seek to rely solely on this fact in support of their position on this matter. The photographs utilised by them to market the property showed the shed present in the rear garden. Those same photographs highlighted that the property was empty prior to marketing, with all of the previous occupant’s possessions removed.

I, therefore, considered that it was reasonable for the Buyer to have assumed that everything the Seller intended to remove had already been removed from the property. On this basis, I took the view that it was also reasonable for the Buyer to have concluded that the sale included the garden shed.

written records!

The Agent’s file did not reveal when precisely they became aware that the shed was not included in the sale and I was critical of them for failing to keep clear and full written records in accordance with paragraph 1h of the TPO Code of Practice. The market appraisal made no reference to the shed and there was no record of instructions being received from the Seller in respect of the same. The Agent referred to a telephone conversation taking place with the Buyer, prior to the exchange of contracts, in which they say they informed him that the shed was not remaining, although again there was no record of this telephone conversation.

Given that the particulars showed that the property had been cleared and that the shed was one of the few removable items remaining, I took the view that there was a requirement for the Agent to have at least questioned the Seller about the shed at the point of preparing the particulars. I did not consider it acceptable for the Agent to have relied on the information within the fixtures and fittings list to clarify the inclusion of the shed. I also pointed out that I did not consider it reasonable for the Agent to rely on their disclaimer in the sales particulars, yet display pictures of the shed without including confirmation whether or not it was being offered as part of the sale.

was it ‘material information’?

Accordingly, I considered that the Buyer had been caused avoidable aggravation on finding out the true position at a late stage in the transaction to the extent an award of financial compensation was merited. However, when considering the level of award, given the Buyer’s decision to proceed with the transaction, I took into account that he was unlikely to have acted differently had he known earlier that the shed was not going to be included in the sale. I made an award of £300.

Whilst the shed in this case was not, in my view, material information, the fact that it was included in photographs of a property that was otherwise empty, gave the impression that it was included in the sale. Had the property been occupied and furnished, I would have likely taken a different view on the matter.


What's your opinion?

Back to top button