Sale of land — Misrepresentation — Fraudulent misrepresentation — Seller’s property information form — Representation that “neighbours were good and friendly” — Representation stating no disputes — Disputes between sellers and neighbours preceding sale — Disputes maintained against buyers — Whether misrepresentation by sellers about disputes — Whether misrepresentation fraudulent — Whether buyers relying upon misrepresentations
In 1999, the claimants purchased a house from the defendants. They subsequently alleged fraudulent, negligent and/or innocent misrepresentation upon which they relied in purchasing the property. They relied upon two matters that arose prior to the contract. First, when the claimants were viewing the property, the defendants made a verbal representation that the “neighbours were good and friendly”. Second, in the seller’s property information form (SPIF), the defendants replied “no” to two questions asking about disputes with neighbours and about complaints. The claimants contended that the defendants had not revealed that, during their ownership of the property, they had been involved in disputes with Mr and Mrs C both about parking on an access road and about rubbish: Mr and Mrs C were the owners of the access and of a dwelling nearby. The defendants argued that there had been a dispute. However, following legal advice that Mr and Mrs C had been correct about the car-parking issue, which advice the defendants accepted, no further dispute arose. The defendants also maintained that, although there had been an incident concerning rubbish, it did not constitute a dispute.
Held: The claim was allowed. The defendants had made a fraudulent misrepresentation. Disputes with neighbours had occurred prior to the misrepresentation and the defendants should have recognised that they constituted disputes that they were required to disclose in the SPIF. After the claimants had purchased the property, the disputes continued; there was an atmosphere of constant confrontation between Mr and Mrs C and the other occupants of houses in the road. The problem suffered by the defendants when they had lived in the property was precisely the kind of information that they were obliged to disclose to a potential purchaser. The defendants knew, or ought to have known, that these matters constituted disputes. The questions on the SPIF were expressed in clear and simple language that was designed for everyone to understand. The claimants had relied upon the misrepresentations in purchasing the property.
No cases are referred to in this report.
This was the hearing of the liability issue in a split trial in proceedings by the claimants, Mr and Mrs McMeekin, for damages for fraudulent misrepresentation against the defendants, Mr and Mrs Long.
Andrew Parsons (instructed by Blake Lapthorn, of Fareham) appeared for the claimants; Mark Duberry (instructed by Warner Goodman & Streat, of Portsmouth) represented the defendants.
Giving judgment, Astill J said:
The claimants alleged fraudulent and negligent and/or innocent misrepresentations made to them by the defendants, upon which they relied when purchasing the defendants’ property at 14D High Trees, Waterlooville, Hampshire, in the summer of 1999. The misrepresentations relied upon are a verbal representation, when the claimants went to view the property, that the “neighbours were good and friendly”, and the representations in writing in a document called the seller’s property information form, in which the defendants answered “no” to each of the following questions under the heading “Disputes”: “Do you know of any disputes about this or any neighbouring property?”; and “Have you received any complaints about anything you have or have not done as owners?”.
In the notes to the seller’s property information form, headed “Important note to sellers”, appears the following:
It is very important that your answers are correct because the buyer will rely on them in deciding whether to go ahead. Incorrect information given to the buyer through your solicitor, or mentioned to the buyer in conversation between you, may mean that the buyer can claim compensation from you or even refuse to complete the purchase.
In the requisitions on title, the defendants were asked:
Please confirm that the written information given by or on behalf of the seller prior to exchange of contracts is complete and accurate. This includes SPIF, parts 1 and 2, replies to pre contract inquiries and correspondence between us.
That is obviously a lawyer’s document, and the response to it was: “Confirmed to the seller’s actual knowledge, save as varied in subsequent communication.” It is agreed that there was no subsequent communication. The claimants did not rely upon the answers to the requisitions. They did not see them, and they give assistance only insofar as they inform about the instructions the defendants were giving to their solicitor.
The claimants’ factual case is that the defendants deliberately, or at the very least carelessly, did not reveal that, during their ownership of 14D High Trees, they had been involved in disputes about parking on the access road, over which they had a right of way, on land owned by the freeholder owners of 14A High Trees, Mr and Mrs Cooper, and also that the occupiers of nos 14B and 14C had similarly been in dispute during that time with Mr and Mrs Cooper and that there had been a problem about the dumping of rubbish on a piece of land adjacent to the garage at 14D High Trees.
The essence of the defence is that there may have been areas of doubt about the rights of persons to park on the access road. Those doubts were resolved when the owners of nos 14B, 14C and 14D had |page:82| jointly instructed a solicitor, which had advised them that Mr and Mrs Cooper were right in law to prevent parking on the access road. There never was, therefore, a dispute, because that position was accepted by the defendants, with their neighbours, and that ended the period of uncertainty.
So far as rubbish is concerned, it was on the land for a period of around two weeks, and the Coopers took steps to ask the council to remove it, which was done. There was, therefore, no dispute about that for the defendants to disclose.
I heard evidence from the claimants, from Mr Richard Durrell, the occupier of 14B High Trees, and from Mr Van Dyke, the occupier of no 14C. It is not necessary to recite and repeat in detail their evidence. Mr Durrell said that the advice of the jointly instructed solicitor, that Mr and Mrs Cooper were correct, was not an end to the matter because there was always the possibility of taking counsel’s advice, which, in fact, is being done at the present time. Therefore, that issue is extant, and was never brought to an end during the time that the defendants were owners of 14D High Trees.
There was evidence that Mr and Mrs Cooper put notices on cars that were parked on the access road; not just on vehicles owned by the occupiers of the premises in the road, but on the vehicles of visitors to those premises. Mr Durrell had, for many years, parked a caravan on the road outside his house. The previous owner occupiers of no 14A had raised no objection, but when Mr and Mrs Cooper bought no 14A, they sent around a letter from their solicitor, the so-called “round robin” letter, to all the occupants of the houses in the road to say that parking on the access road was forbidden, or that, more accurately, there was no right to park on the access road. Mr and Mrs Cooper responded to Mr Durrell, he said, by parking an old and dilapidated unpleasant-smelling caravan outside the house of Mr Van Dyke. Mr Cooper told Mr Durrell when he did so: “You put two fingers up to me so now see how you like it.” Mr Durrell said that he realised that the caravan placed there by the Coopers was offensive, not just to himself but to the other occupants, and particularly to Mr Van Dyke, and so he moved his own caravan onto the lawn at the front of his house and the Coopers subsequently moved the offending caravan.
Meanwhile, Mr Van Dyke said that it had caused an obstruction in gaining access to the driveway of his house, which he achieved only with difficulty.
On a small grassed area next to no 14D, a pile of rubbish appeared. It consisted of old linoleum and carpet and it was believed by the occupants of the other houses to have been placed there by Mr and Mrs Cooper. That suspicion was subsequently proved to be accurate, and it was believed by the other occupiers that Mr and Mrs Cooper had done that deliberately in order to antagonise the occupants of the other houses on the road.
I heard evidence from the claimants about subsequent disputes that have occurred between them and others on the road, on the one hand, and Mr and Mrs Cooper, on the other, about parking. Those disputes have taken place after the representations had been made by the defendants. Their only evidential value, if there is any in them at all, is as to whether they assist in deciding if Mr and Mrs Cooper’s actions and the actions of the other householders, and the reactions of each during the time that the defendants were in occupation before the representations were made, can be said to amount to a dispute that should then have been disclosed by the defendants.
It is important to concentrate on the evidence of the events that occurred before the representations were made. There are two questions. Does the evidence that I heard reveal that there were disputes during the defendants’ occupation of the house? If the evidence supports the existence of a dispute, or disputes, were they known by the defendants, or should the defendants have recognised that they constituted disputes that they were required to disclose in the seller’s property information form?
I reject without difficulty the defendants’ submission that the evidence does not support the finding of a dispute about both parking and rubbish during the time that the defendants were occupying no 14D. I accept the evidence of the claimants and their witnesses about the matters that they describe, and I have no doubt that what they have described constitute disputes that fall within the ambit of the questions in the seller’s property information form. Not only were disputes to be disclosed about no 14D, but about any neighbouring property. In addition, complaints received by the defendants “about anything you have or have not done as owners” were required to be disclosed. It appears to me that it is wholly unrealistic to analyse the problems that existed by saying that once the defendants and the other owners had jointly instructed a solicitor and were told that they appeared to have no legal right, that was the end of the problem. I accept Mr Durrell’s evidence that there was always the possibility of going further than the solicitor’s advice, and the proof of that is that that has now happened.
The truth of the matter is that there was an atmosphere of constant confrontation between Mr and Mrs Cooper and the other occupants of the houses on the road. The evidence clearly supports that. The lives of the claimants living in no 14D are now devalued by a continuation of a running dispute between Mr and Mrs Cooper about the use of motor vehicles and the parking of motor vehicles on the access road, which is a continuation of the problem that was suffered by the occupants when the defendants were there. That is precisely the kind of information that must be disclosed to a potential purchaser for them to be able to make up their minds as to whether they wish to buy a property with the running sore of constant disputes and antagonism existing between the owners of the access road and those who have rights of way over it.
The next matter is whether the defendants knew, or ought to have known, that there were these disputes. I consider their evidence to be incapable of belief about this. The reason is that I accept the evidence given by the claimants’ witnesses, Mr Durrell and Mr Van Dyke, that during the time that the defendants were in occupation, the occupiers of the houses on the road, including the defendants’, frequently discussed the problems that were arising. There were at least two meetings at the defendants’ home, I accept, for the specific purpose of discussing these matters , and it is inconceivable that the defendants were not aware of what I believe can be properly categorised as disputes with Mr and Mrs Cooper. I have no difficulty in preferring the evidence of Mr Durrell and Mr Van Dyke, and even less difficulty in rejecting the evidence given by the defendants, and that of Mrs Cooper given on their behalf. Mrs Cooper was a thoroughly unsatisfactory witness. Her pretence that there were no disputes must be compared with her unpleasant and vengeful act in buying and stationing a caravan outside Mr Durrell’s house to pay him back for not obeying her dictate that his own caravan should be moved.
The correspondence I was taken to during the evidence, especially the evidence of Mrs Long, led me to the clear conclusion that Mrs Long knew that there were disputes about both parking and the dumping of rubbish. Her evidence that the only dispute between Mrs Long and the Coopers was about Mrs Long’s affair with a friend of the Cooper’s is not borne out by the exchange of letters between the defendants’ and the Coopers’ solicitor. During the course of her evidence, Mrs Long was referred to a letter written by Mr and Mrs Cooper to their solicitor, expressing that the Longs had been provocative and saying that they would do as they pleased, including the dumping of rubbish. Mrs Cooper was called as a witness by the defendants, yet Mrs Long said that Mrs Cooper was untruthful when she wrote that letter to her solicitor. Mrs Long’s conjecture that that was done because of Mrs Long’s affair does not match the content of the letter. Mrs Long is using the disagreement with the Coopers about her affair with a friend of the Coopers to divert attention from the realities, which were disputes about parking and the dumping of rubbish.
The seller’s property information form could not be expressed in clearer language. It is not a lawyer’s form, but one that is designed for everyone to be able to understand. There could be no confusion or misunderstanding about the questions: “Do you know of any disputes about this or any neighbouring property?” and “Have you received any complaints about anything you have or have not done as owners?”
Given the background, as I accept it from the evidence, when the defendants came to answer those two questions, it is impossible to |page:83| conclude other than that they must have known that they were not being truthful when they answered those two questions. So simple are those questions to understand and to answer, and so obvious were the disputes that had and still exist, not just in relation to the defendants’ property but to the other properties using the access road, that it is not possible to conclude that, in answering them falsely, that was done merely recklessly or carelessly.
I am satisfied from the evidence that I have heard that the defendants verbally represented to the claimants, when the claimants went to view the house, that there were good and friendly neighbours, and that that was a general comment, not merely directed towards one neighbour, Mr Van Dyke, and that the information given on the seller’s property information form was inaccurate. I am satisfied, also, that the claimants relied upon the representations. Both told me, and I accepted, that had they known the true position they would not have bought the property. I have come to the conclusion, on the evidence that I have heard, that the defendants knowingly made false representations, and have no reasonable grounds for believing that those representations were true. Both realised that their answer “no” to both those questions was false and would be relied upon by the purchasers, as the notes to the seller’s property information form informed them.
In those circumstances, I am driven to the conclusion that the claimants have reached the high standard of proof to be achieved in satisfying me of fraudulent misrepresentation.
Claim allowed.
