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

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)

Start your day with The Independent, sign up for daily news emails
News
election 2015The 10 best quotes of the campaign
News
A caravan being used as a polling station in Ford near Salisbury, during the 2010 election
election 2015The Independent's guide to get you through polling day
News
people
Voices
David Blunkett joins the Labour candidate for Redcar Anna Turley on a campaigning visit last month
voicesWhat I learnt from my years in government, by the former Home Secretary David Blunkett
ebooks
ebooksA celebration of British elections
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Money & Business

Ashdown Group: Editor-in-chief - Financial Services - City, London

£60000 - £70000 per annum + benefits : Ashdown Group: A highly successful, glo...

Ashdown Group: Junior Application Support Analyst - Fluent German Speaker

£25000 - £30000 per annum + benefits: Ashdown Group: A global leader operating...

Guru Careers: Management Accountant

£27 - 35k + Bonus + Benefits: Guru Careers: A Management Accountant is needed ...

Guru Careers: Project Manager / Business Analyst

£40-50k + Benefits.: Guru Careers: A Project Manager / Business Analyst is nee...

Day In a Page

General Election 2015: ‘We will not sit down with Nicola Sturgeon’, says Ed Balls

'We will not sit down with Nicola Sturgeon'

In an exclusive interview, Ed Balls says he won't negotiate his first Budget with SNP MPs - even if Labour need their votes to secure its passage
VE Day 70th anniversary: How ordinary Britons celebrated the end of war in Europe

How ordinary Britons celebrated VE Day

Our perception of VE Day usually involves crowds of giddy Britons casting off the shackles of war with gay abandon. The truth was more nuanced
They came in with William Caxton's printing press, but typefaces still matter in the digital age

Typefaces still matter in the digital age

A new typeface once took years to create, now thousands are available at the click of a drop-down menu. So why do most of us still rely on the old classics, asks Meg Carter?
Discovery of 'missing link' between the two main life-forms on Earth could explain evolution of animals, say scientists

'Missing link' between Earth's two life-forms found

New microbial species tells us something about our dark past, say scientists
The Pan Am Experience is a 'flight' back to the 1970s that never takes off - at least, not literally

Pan Am Experience: A 'flight' back to the 70s

Tim Walker checks in and checks out a four-hour journey with a difference
Humans aren't alone in indulging in politics - it's everywhere in the animal world

Humans aren't alone in indulging in politics

Voting, mutual back-scratching, coups and charismatic leaders - it's everywhere in the animal world
Crisp sales are in decline - but this tasty trivia might tempt back the turncoats

Crisp sales are in decline

As a nation we're filling up on popcorn and pitta chips and forsaking their potato-based predecessors
Ronald McDonald the muse? Why Banksy, Ron English and Keith Coventry are lovin' Maccy D's

Ronald McDonald the muse

A new wave of artists is taking inspiration from the fast food chain
13 best picnic blankets

13 best picnic blankets

Dine al fresco without the grass stains and damp bottoms with something from our pick of picnic rugs
Barcelona 3 Bayern Munich 0 player ratings: Lionel Messi scores twice - but does he score highest in our ratings?

Barcelona vs Bayern Munich player ratings

Lionel Messi scores twice - but does he score highest in our ratings?
Martin Guptill: Explosive New Zealand batsman who sets the range for Kiwis' big guns

Explosive batsman who sets the range for Kiwis' big guns

Martin Guptill has smashed early runs for Derbyshire and tells Richard Edwards to expect more from the 'freakish' Brendon McCullum and his buoyant team during their tour of England
General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'