Sales instruction where the vendor withholds a known defect
You are instructed to market a 1930s semi-detached house. During your pre-instruction visit, the vendor mentions in passing that the rear extension had building work done three years ago and that they 'never got the sign-off'. They also say a surveyor once flagged possible subsidence near a large oak tree in the neighbour's garden, but they 'didn't pursue it'. The property particulars you are drafting would normally say 'well maintained'. The vendor instructs you to keep the particulars 'positive' and not to mention either issue, saying buyers can 'do their own surveys'. The asking price is £425,000 and the vendor wants a quick sale.
1. What are your obligations regarding the two issues the vendor has disclosed to you?
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You must not mislead. You have actual knowledge of (a) building work without completion/sign-off and (b) a historic suggestion of possible subsidence. Describing the property as 'well maintained' or omitting matters you know could materially affect a buyer's decision risks a misleading action/omission. You should advise the vendor in writing that these matters should be disclosed, recommend they obtain regularisation of the extension and any structural report, and record your advice. You cannot simply follow an instruction to conceal known material facts. If the vendor refuses, escalate internally and consider whether you can continue to act; document everything.
2. How would you word the particulars and what would you do before publishing?
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Use accurate, non-misleading wording. For example: 'Rear extension constructed approximately three years ago; the seller advises that building regulations completion documentation is not available - buyers should make their own enquiries.' And: 'A large oak tree stands in the neighbouring garden; the seller is aware of historic survey commentary regarding possible movement and recommends buyers obtain their own structural advice.' Remove 'well maintained' unless verified. Before publishing, confirm in writing that the vendor has approved the disclosure wording, obtain any available documents, and check that the Energy Performance Certificate and material information are complete. Keep a record of the vendor's instructions and your advice.
3. A buyer's surveyor later reports movement and the buyer threatens to complain. What is your position?
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Your position depends on what you knew and disclosed. If you recorded the known issues and disclosed them accurately, you have a defensible record: the buyer was on notice and advised to obtain their own survey. Produce your file: the pre-instruction note, your written advice to the vendor, the approved particulars and correspondence. If, however, you had published 'well maintained' or omitted the issues, you would be exposed to a misleading-omissions complaint. The lesson is that contemporaneous written advice and accurate particulars are your protection; never rely on verbal assurances from a vendor to justify silence about known material facts.