Incredible shrinking garden: A court battle over misrepresentation by an estate agent has left a family wilting

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The Independent Online
THE McCULLAGH family paid pounds 875,000 for a property with a glorious garden backing on to the Thames so they could build the house of their dreams. But the dream has turned into a nightmare.

Apart from one squatter and his goat, the property has been empty for nearly four years. The family has been fighting for more than three years to get compensation from an estate agent who got the size of the garden wrong.

On Friday 11 May, 1990, Mac McCullagh and his wife, Denise, saw an advertisement in a magazine for a house for sale. It described the property as having a garden of nearly one acre fronting the River Thames at Chiswick, London.

The family, including the two children, William and Charlotte, went to see the property the following day. They met Andrew Scott of the estate agents Lane Fox & Partners on the site.

The family immediately fell in love with the garden, but found the house unattractive.

They decided that they would like to buy the property, demolish the house, and build a new family house with a swimming pool and tennis court.

During the visit they received a copy of the estate agent's particulars. The site was described as 0.92 acres. Mr and Mrs McCullagh say that Mr Scott also verbally confirmed the size of the garden.

While they were at the house they were told that there was another interested party who had made an offer near to the asking price.

The family left the house determined to buy, but they knew they would have to move quickly.

Since the plot was the determining factor of their purchase and they were not interested in the house, they decided not to have a survey.

The same evening they telephoned Mr Scott and made an offer of pounds 850,000, the asking price. As there was the other purchaser lurking, Mr McCullagh agreed to exchange contracts the following Monday.

On Sunday morning, he contacted the seller direct. The family went back to have another look at the property, and increased the offer to pounds 875,000. On Monday, contracts were duly exchanged, and the purchase was completed shortly afterwards.

The family was over the moon. Then the bombshell came. On 24 May their architect went to the property and measured the site. It was 0.48 acres - half the size they had been told by the agent and in the particulars.

Mr McCullagh immediately telephoned Mr Scott, who went back to measure the site. Mr Scott then admitted that he had got it wrong.

Mr McCullagh tried to salvage the situation. He says: 'I asked three architects to tender to redesign our dream home based on the smaller site.

'But we discovered that there was no way, if we put our house on that plot of half an acre, we would ever get back the rebuilding cost and the cost of the plot.'

Mr McCullagh then issued legal proceedings against Lane Fox. He sued for damages for oral negligent misrepresentation - claiming that Mr Scott's remarks about the size of the property had misled him, and that he had suffered loss and damage as a result.

Mr McCullagh argued that if he had known the true size of the plot he would not have bought, or he would have made a lower offer. He reckoned that the property was worth only pounds 550,000.

When the case finally reached court, the judge decided that there was an oral negligent misrepresentation, and that there was a link between that misstatement and Mr McCullagh's alleged loss.

Furthermore, the agent owed a duty of care to the purchaser. The agent was aware that Mr McCullagh was not going to have a survey, and that the size of the plot would affect his decision to buy.

Mr McCullagh thought he was home and dry. But then a second bombshell came. The judge, on the evidence, said that the price Mr McCullagh had paid was not in excess of the market value. He paid no more than it was worth with the land that it actually had. Mr McCullagh had not suffered any loss, therefore he would receive no damages.

Mr McCullagh cannot believe the outcome. He has won and lost at the same time. He cannot understand how a property with half an acre can be worth the same as a property with one acre.

To add further fuel to his indignation, he has been ordered to pay the estate agent's costs.

He says: 'My own legal costs are in the region of pounds 20,000, and then I have to pay the other side's. I cannot believe this is British justice.

'I have been told that this is the first time that anyone has sued an estate agent for misrepresentation. I can believe it. The costs involved would deter anyone.'

His solicitor, Kevin Steele, a partner with the legal firm Mishcon de Reya, said: 'The whole family was so very excited about the possibilities of the property. They were then bitterly disappointed when they knew the truth.'

However, Mr McCullagh is going to fight on. He has lodged an appeal and the case will now go to the Court of Appeal.

The Property Misdescriptions Act took effect last year. It makes it a criminal offence for agents to give wrong information.

John Samson, property partner with the solicitors Nabarro Nathanson, says: 'The act does not help a buyer one iota. It makes no provision for compensation or damages.

'If the agent gets it wrong, you will still have to sue in the courts, which can be horrendously costly.

'The consolation is, the threat of criminal proceedings in the act should make agents more careful to get it right in future'.

(Photograph omitted)