Need advise on misleading brochure from real estate agent

[ippyevie]

We recently found a flat that we love. The vendor accepted the offer and we launched the survey. There were some damp issues that the vendor agreed to partake the cost, which is brilliant. However, the survey said that the front garden (it's a lower ground floor apartment, the area of the front garden is appx. 16 sqm.) is not demised. We went back to the brochure we first got and it said that the front garden IS demised. We made the offer on the basis that the front garden was demised and the details in the marketing material from the agent was correct, which is not the case anymore.

How should we deal with this? The real estate agent said that she never had similar case before. We just really want to exchange before we go on holiday and do not want to derail the process. It is clearly not the vendor's fault and the agent doesn't know how much would the garden cost. We obviously feel that it's misleading somehow.

Have anyone experienced similar case or have any suggestions on this? Should we negotiate down the fee with the agent?

Thank you, we need help pronto!

Eva

[tridentmorph]

If you are uk based then contact trading standards, as the agents have breached the property misdescriptions act and can be fined. You can only benefit from this however if you can be said to have made a material loss because of this ie - legal fees, surveys etc.

The agent would have asked the vendor to check the marketing material before sending it and I am surprised that the current owner didn't know what land they owned - would have been obvious whenever they purchased the flat originally.

[ippyevie]

Thank you so much for your answer. Today the agent got back to me that the brochure has this disclaimer stating...

"Illustration for identification purposes only. Measurements are approximate. Not to Scale. Floorplans drawn according to RICS guidelines. Copyright Chesterton 2006. Chesterton for themselves and for the vendor of this property whose agents they are, give notice that: (i) these particulars do not constitute any part of an offer or contract, (ii) all statements contained within these particulars are made without responsibility on the part of Chesterton or the vendor, (iii) whilst made in good faith, none of the statements contained within these particulars is to be relied upon as a
statement of representation or fact, (iv) any intending purchaser must satisfy him / herself by inspection or otherwise as to the correctness of each of the statements contained within these particulars, (v) the vendor does not make or give either Chesterton, or any other person in their employment any authority to make or give any representation or warranty whatever in relation to this property Version 1 07/08".

So it means that they can make things up for the brochure and not be liable against it if the buyer found out. It essentially means that the agent doesn't have to be factual about things to put in the brochure, that's what it means. How much rights does a consumer has in this country?

Is it even worth making a fuss about it if this clause exists?

Thank you.

Eva

[Ownerhome]

Is the agent a member of the NAEA? if so they are bound by a code of conduct. This IS a misdescription, and as Tridentmorph pointed out, the current vendor will have had to sign a copy of the marketing brochure to state that the information contained in it is correct.

So either way, you have a legal case to either recover your legal expenses so far OR re-negotiate the price if you still wish to go ahead with the purchase.

Good Luck!

[ippyevie]

NAEA is an individual membership, not an organisational. So when I looked at their website and searched for Chesterton, individual names came up...

My agent's name is not in the list. Also I asked our solicitor and she said there's nothing we can do about it if there is this clause. This property is very desirable. We had to beat the other buyers in the bidding war to the point that the offer price is in excess than asking price. The agent came back to us and said something like if you're seeking some discount, please do not hesitate to let me know as the other buyers are still interested. What an attitude. We really feel like being misled and wanting to fight back but at the same time, this property search and buying process took as a year now and we do really want it to go through. We just want to make sure that we really have a case on this. The solicitor's stance is not very comforting. Is there any particular case/literature to look at/follow? Should I write a complaint to NAEA?

Thanks a lot!

Eva

[Ownerhome]

Unless your agent is a member of NAEA...which it sounds like they are not if you cannot find any details of registered members, then complaining to them wouldn't help.

It doesn't sound like you solicitor is much help either

The problem you have, is if you REALLY want the property and still agree to purchase even though they have now advised about the garden, once you sign to go ahead, you are essentially agreeing to this clause, so wouldn't have any re-cause after purchasing.

I suppose if there weren't other parties interested in the property then it would be worth putting up a fight, but if you stand to loose the property if you kick up a stink (which is basically what the estate agent is hinting at), then your choices are limited.

Sorry I can't be more helpful

[drhouse]

In Uk the Property Misdescriptions Act says that an agent can't lie or provide misleading statements - it is far too late in the evening for me to remember the exact wording !

However, even if the vendor has signed off the details as correct it is the agents responsibility to check and the liability is with the agent. It doesn't matter what clauses they put on the details. For example if they say they have relied on info supplied by the vendor that is not a defence. A court may apportion some or all blame on the vendor.

A simple example is if a bath is described as a Jacuzzi but is in fact another brand of whilpool bath the agent is in breach of the act. If an agent has not been able to verify the make of an appliance they should not mention a brand name.

Also an agent does not have to be an NAEA member as the Prop Misdescriptions Act is a law that applies to all.

All agents also now have to be members of an Ombudsman scheme so it may be possible to complain there.

This all applies only to the UK.

[googler]

Can someone tell me/us what a 'demised' garden is, please?

[ippyevie]

Thanks so much, this is very helpful. There is a very solid evidence for our case to fight against them. I'm just absolutely horrified about the treatment one gets from the real estate agent. And this is not even the boom time, can you imagine in the boom time, how would customers be treated!!!!

PS I'm not sure either about demised, but all I know is that you can make changes to the area that is demised without asking for freeholder's consent.

eva