The Misdescribed Industrial Unit
You are marketing a 1,200 sq m industrial unit with 8 m eaves, a 6 m roller shutter and a 500 kVA power supply. The particulars you drafted (approved by the owner) state: 'Approx. 1,200 sq m; 8 m eaves; 500 kVA; fully fenced yard; suitable for B2 and B8 uses.' A buyer, a logistics operator, views twice, receives the particulars, and offers £1.15m, which the owner accepts. Two weeks after exchange, the buyer's surveyor measures the unit at 1,050 sq m and finds the eaves are 7.2 m at the rear, the power supply is 300 kVA, and the yard is only partly fenced. The buyer's solicitor writes alleging misrepresentation and threatening to rescind or claim damages. The owner says: 'The buyer viewed it twice - they should have checked. And the figures came from the last agent.'
Your file shows you took the measurements from the previous agent's particulars without verifying them, and the owner confirmed them by email as 'about right'.
1. Analyse the buyer's potential claims against the owner and against your agency, distinguishing misrepresentation from breach of contract.
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Against the owner (seller): The statements in the particulars are representations of fact that induced the contract. If they were false and the buyer relied on them, the buyer may have a claim in misrepresentation (Misrepresentation Act 1967). The measure of damages depends on whether the misrepresentation was fraudulent, negligent or wholly innocent; under s.2(1) the burden is on the representor to show it had reasonable grounds to believe the statements were true. The buyer may also argue breach of contract if the statements were incorporated as terms (less likely for particulars, but possible if repeated in the contract). Rescission is unlikely after exchange/completion in a property transaction, so damages are the realistic remedy. The owner's 'they viewed it twice' point is weak: viewing does not cure a false statement, though it may go to contributory reliance.
Against the agency: The particulars were your firm's document. Under the Estate Agents Act 1979 and the Propertymark/consumer protection rules, an agent must not knowingly or recklessly make false or misleading statements, and must take reasonable care that descriptions are accurate. Taking measurements from a previous agent without verification is a clear failure of reasonable care. The owner's 'about right' email does not absolve you - you are the professional producing the particulars. The buyer could bring a claim against the agency (misrepresentation, negligence, or breach of the duty of care), and the agency may face a regulatory complaint. The 'sourced from last agent' defence is not a defence; it is an aggravating factor.
2. What should you do now, and what would you change in future?
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Now:
- Notify your professional indemnity insurer immediately - do not correspond with the buyer's solicitor on liability without instruction.
- Preserve the file - particulars, owner's email, viewing notes, previous agent's particulars, any internal emails.
- Do not admit liability or make offers without insurer/legal advice.
- Correct the record - write to the owner confirming the source of the figures, that they were not independently verified, and that this is being handled. Keep it factual.
- Cooperate with the buyer's solicitor through the insurer's appointed solicitors.
Future changes:
- Verify all material measurements yourself or obtain a measured survey; never copy another agent's particulars without checking.
- Use qualified language ('approximate', 'measured in accordance with...') only where genuinely approximate, and state the source and date of measurements.
- Confirm power capacity (kVA) with the utility provider or the owner's supply documentation, not by assumption.
- Record the verification steps on file - who measured, when, and what was checked.
- Ensure the owner signs off particulars with a clear acknowledgement that the agent has verified the figures, not merely 'about right'.
This is a textbook example of why 'the last agent said so' is not a defence under the Propertymark conduct rules or the Misrepresentation Act.