· A ‘statistically implausible’ photograph may lead to liability under
the Property Misdescriptions Act
· ‘Due diligence’ requires estate agents to be proactive
Things on the
property misdescriptions front have been relatively quiet, although readers
will no doubt recall our note of 22 January on the case of Lewin v Barratt
Homes Ltd [2000]
03 EG 127. That case served as a useful reminder that the Act is not just
about words, and that a show house that gives a false impression of what a
purchaser is going to get for his money may constitute a ‘false or misleading
statement’ and may lead to liability. Those agents who felt that this was an
unjustifiable extension of the Act’s tentacles should brace themselves for a
nasty surprise. The High Court has just ruled that an estate agent should have
been convicted for publishing a photograph that was entirely accurate!
Jones (Trading
Standards Officer) v Jones & Jones Ltd
[2000] Tr St R 115 concerned the sale, early in 1998, of a stone-built
slate-roofed cottage in Bwlchchwllgwlch, a hamlet just outside Blaenau
Ffestiniog in North Wales. The property was marketed by the defendant, a
long-established local firm of estate agents. The sale particulars were headed
by a charming photograph of the property, which showed it standing proud
against a clear blue sky, with an emerald green lawn running down to a
sparkling stream. This idyllic picture proved sufficiently tempting to a young
couple (coincidentally also called Jones) that they were induced to offer close
to the asking price, and the sale duly went through.
Nine months later,
however, the purchasers finally lost patience with dark leaden skies, constant
heavy rain and a lawn that, by now, was lying at least two feet under the
sparkling stream. Having taken legal advice, Mr and Mrs Jones complained to the
local trading standards department that they had been seriously misled by the
photograph into believing that the property would, at least from time to time,
enjoy some good weather.
Having given this
matter serious consideration, the trading standards officer decided to
prosecute the agent under section 1 of the Property Misdescriptions Act 1991,
which provides that ‘where a false or misleading statement about a prescribed
matter is made in the course of an estate business…the person by whom the
business is carried on shall be guilty of an offence’. The local magistrates
took the view that the photograph was indeed a ‘statement’ for the purposes of
the Act; it would have been difficult to argue otherwise, since the Act
specifically provides that ‘a statement may be made by pictures…as well as by
words’. They were further persuaded that a statement about prevailing weather
conditions fell within the list of ‘prescribed matters’ under the Property
Misdescriptions (Specified Matters) Order 1992, in that it formed part of the
property’s ‘aspect, view, outlook or environment’. They gave very short shrift
to the agent’s argument that it ‘took all reasonable steps and exercised all due
diligence to avoid committing the offence’. This was based upon evidence that
‘due diligence’ means taking positive steps, and, in all its years of practice,
this particular agent (unlike other firms in the locality) had never once asked
the Meteorological Office to provide a climatic report on a property that it
was selling.
Despite all this,
however, the bench came to the conclusion that the agent was entitled to be
acquitted of the charge, since, in the circumstances, its ‘statement’ was
neither false nor misleading. This was because, in the opinion of the
magistrates, any reasonable person would know that it rains most of the time in
North Wales, and, hence, would not be fooled by a picture of sunshine.
Unfortunately for
the agents, an appeal to the High Court produced a very different result. The
Divisional Court held that, even though the picture in the case was accurate
(in the sense that the sun really had been shining when it was taken), it was
nevertheless to be regarded as a misleading statement. Their lordships’
reasoning was explained by Poisson J:
It must not be
overlooked that, while a photograph is essentially two-dimensional (and even a
model is only three-dimensional), the underlying reality, of which a photograph
or model seeks to convey an impression, is four-dimensional; that is to say, it
also includes the passage of time. In my judgment, a photograph or model which
gives a statistically implausible impression of that fourth dimension may
justifiably be regarded as ‘misleading’.
Since sunshine in
Bwlchchwllgwlch was indeed ‘statistically implausible’, it followed that the
case must be sent back to the magistrates with a direction to convict the agent
of the offence.
In the light of
this decision, the crucial question for agents is: what can be done to avoid,
or at least reduce, the risk of liability? As to this, there would appear to be
two main possibilities.
The first is for
the agent to ensure that a photograph does not give a misleading impression of
the weather conditions normally prevailing at the property, by making suitable
adjustments to the colour of all visible areas of sky. Indeed, the High Court
drew attention to the existence of certain software packages, marketed by
climatic consultants, by which this process can be easily automated for any
given locality.
Alternatively, the
agent should make sure that every photograph is date-stamped and that it
carries a prominent disclaimer, stressing that British weather is essentially
variable, that temperatures can go down as well as up and that appropriate
specialist advice as to local conditions should be sought before purchase. If
this is done, and provided the disclaimer is as ‘bold, precise and compelling’
as the offending statement, then perhaps agents can safely continue to live in
a world where the sun always shines.
