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
ebookA unique anthology of reporting and analysis of a crucial period of history
peopleMathematician John Nash inspired the film Beautiful Mind
Richard Blair is concerned the trenches are falling into disrepair
newsGeorge Orwell's son wants to save war site that inspired book
Life and Style
Audrey Hepburn with Hubert De Givenchy, whose well-cut black tuxedo is a 'timeless look'
fashionIt may be a paradox, but the industry loves it
Arts and Entertainment
The pair in their heyday in 1967
Life and Style
fashionFrom bathing dresses in the twenties to modern bikinis
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

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

iJobs Job Widget
iJobs Money & Business

Guru Careers: Software Developer / C# Developer

£40-50K: Guru Careers: We are seeking an experienced Software / C# Developer w...

Neil Pavier: Management Accountant

£45,000 - £55,000: Neil Pavier: Are you looking for your next opportunity for ...

Sheridan Maine: Commercial Accountant

£45,000 - £55,000: Sheridan Maine: Are you a newly qualified ACA/ACCA/ACMA qua...

Laura Norton: Project Accountant

£50,000 - £60,000: Laura Norton: Are you looking for an opportunity within a w...

Day In a Page

Abuse - and the hell that came afterwards

Abuse - and the hell that follows

James Rhodes on the extraordinary legal battle to publish his memoir
Why we need a 'tranquility map' of England, according to campaigners

It's oh so quiet!

The case for a 'tranquility map' of England
'Timeless fashion': It may be a paradox, but the industry loves it

'Timeless fashion'

It may be a paradox, but the industry loves it
If the West needs a bridge to the 'moderates' inside Isis, maybe we could have done with Osama bin Laden staying alive after all

Could have done with Osama bin Laden staying alive?

Robert Fisk on the Fountainheads of World Evil in 2011 - and 2015
New exhibition celebrates the evolution of swimwear

Evolution of swimwear

From bathing dresses in the twenties to modern bikinis
Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine