Withheld information during sale

[gadgetsrus]

In October 2007 we bought an old farmhouse as a renovation project from a farmer who's father had lived in it and died about 5 years prior to us buying.

The searches were all fine including environmental and flood searches - no issues so we bought and moved into a caravan on the site.

About 2 months after moving in we had a horrendous storm and we found that rainwater cascaded down the access lane, accross the yard straing into the front of the house. With nowhere else to go the water came into the house and shorted out the mains and damaged quite a few of our posessions that we had stored in the house.

We have made significant improvments to the drainage to send the water by designed water runs arround the house and into a brook but it is still a little nerve wracking whenever we get a bad storm.

Talking to a local log merchant just last week it is apparent that it was common knowldge that the house flooded (he will attest that he knew of it 10 years ago) and the farmers idea of a solution included filling in the cellar (we were told that was to stop the old man falling down the stairs!) knocking several bricks out of the back wall of the house to allow the water to run right through (these had been plastered over before we bought) and placing building rubble accross the farmyard entrance to try and stop the water.

My question is, as it appears that he deliberatley withheld the information about the flooding aspect do we have any comeback against either him or our solicitor for not asking. I mention our solcitor in this as we were explicitly asked about flooding during the selling of our new build house by him.

Mike

[JustinN]

In my (admittedly extreme) view, the flood risk map is all but useless as a guide to deciding whether an individual house is prone to flooding:
·it does not show potential flooding from ground or surface water, only from rivers and the sea, nor the potential depth of flooding from river or coastal floods;
·it does not distinguish between properties by their height above sea level;
·it is not site-specific;
·it is based on a flood risk assessment that uses a 100 sq m grid, but in reality different properties within that grid will have different levels of risk (eg if one is higher than the other);
·the risk assessment assumes that the flood defences will work properly.

Standard environmental searches (based on postcode sectors) are equally blunt instruments

Property information forms used not to ask questions about flooding (eg: the Law Society's 2007 version), but many now do (eg: the Law Society's 2009 version). I suspect the risk of flooding was treated as a "physical aspect" to be left to surveyors rather than covered by solicitors, but that the fact of any past flooding is now treated as a valid point for lawyers to cover. However, I suspect there is no overall consensus on the point yet

I suggest you ask your lawyer whether he did ask the question; if he did, what was the answer? If he did not raise the question, why not?

If the question was not asked, the seller cannot be criticised for not volunteering the information

I hope this helps

[gadgetsrus]

It appears that whilst our lawyer expicitly asked us about flooding of the house that we were selling he didn't ask the vendor about the house that we were buying!

[JustinN]

OK. So the next question (to your lawyer) is, "Why not?"

I suspect the answer will be that he relied on the information provided in the Property Information Form completed by the seller; whether he should have asked a supplementary question about flooding is difficult to say - I certainly cannot put my hand on my heart and say that I would do so, unless there was some reason (eg: a comment by the client or by the client's surveyor) to alert me to the risk of flooding

Sorry I cannot give you a more conclusive answer, but some of the other conveyancers who contribute to this forum may want to comment ...

[brian]

Wasn't there a court case about a year or so ago where something similar came up - not about flooding, but about the seller otherwise with holding important information on a property which otherwise caused devaluation, with the result that the seller was found liable??

Trying to rack my brains here, but just can't remember the case details.

[JustinN]

Brian - You may be thinking of the "haunted house" case. I cannot remember the details, but I think the sellers were, for some reason, expected to have volunteered the information that the house was haunted.

This is not the usual position, however: the basic position is "caveat emptor" - let the buyer beware. It is for the buyer to inspect, carry out searches and ask questions, not for the seller to try and second-guess what the buyer might want to know, still less to offer a warranty that the property is perfect except for any disclosed defects (as would normally be the position in a contract for the sale of shares, for instance)

[gadgetsrus]

As an update on the saga - we just had cause to talk to the local planning office and we now find that the proprty we bought as a house in an area of land only has permitted development rights on about 1/3 of the land the rest being "grassland".

So our plans to have a nice garden, grow some vegetables, have a greenhouse etc are completely scuppered. It also means that we paid residential price for a paddock!

We have a letter from our solicitor stating that the property has full permitted development rights and she went on to tell us in the same letter what that meant!

[Richard Webster]

I would ask about flooding as part of a long list of nasties such as rodent infestation, subsidence etc. Usually we get a vague "Don't know of any type answer" but if it can be proved that the seller did know then you have a case. Problem of course is actually getting a judgement and collecting the damages form the seller.

Most of the questions like this that we ask are not very helpful, e.g. about say dry rot. Seller can say he didn't know about it and it will often be difficult to prove that he did, but with flloding that is a different matter. There are usually neighbours who can provide information. I even heard a story about a case where the sellers said there hadn't been any flooding and it happened a few months later and the local fire briagde turned up and said "Here we are again..." and proceeded to tell the new owners about the several incidents over the previous few years when the place had flooded!

As a conveyancing solicitor I believe the information given in the post to be useful but I accept no liability except to fee-paying clients