Words come back to haunt home sellers: Careless comments to a property purchaser can land the vendor in court, warns Sue Fieldman

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The Independent Online
REMARKS you make when you are trying to sell your home could come back to haunt you in court, even though there is nothing in writing.

The seller of Britain's 'most haunted' house has just been ordered to pay pounds 71,000 to his purchaser for, among other things, exaggerating the ghostly comings and goings at the property.

Susan Wright thought that there must have been supernatural forces at work when she completed the purchase of her flat. One minute the flat was fully furnished - the next, all the furniture had completely disappeared.

Mrs Wright wanted to buy a show flat - a penthouse suite in a converted block of flats in Grays, Essex.

The seller, Robert Leonard Developments, agreed a price of pounds 105,000 for the flat and all the furnishings and fixtures on the basis of exchange and completion within 21 days.

The deadline of 29 April came and went, and the seller agreed to extend the deadline to 3 May. Contracts were finally exchanged by telephone on 14 May. There had been no mention of the furnishings, although a copy of the schedule of items was included with the purchaser's contract.

The sale was completed on 23 May, but two days earlier the seller had removed the furnishings.

Mrs Wright says: 'When I walked into the flat I could not believe it. It was empty. All the furniture and electrical goods - even the bedside tables and the pictures on the walls had gone.

'There had been no correspondence saying that the furnishings were no longer included. The whole point of buying the show flat was that I wanted everything in it. As it was, I had to move in with just a sun-lounger.'

Mrs Wright went to court and sued for the value of the missing furnishings. Although the seller argued that the furnishings were only included for a completion on 3 May, Mrs Wright won the case.

When the seller appealed against the decision, the Court of Appeal said that the oral agreement made before the exchange of contracts was one package for the sale of the flat and contents.

The court decided to rectify the contract and include the furnishings. Mrs Wright was entitled to damages of pounds 15,872 for replacing the missing items.

John Samson, property partner with solicitors Nabarro Nathanson, says: 'If a seller has made any promises, not just about fixtures and fittings, he may well find they are legally binding. If he attempts to wriggle out of them, he has to face the consequences. Even if a promise is made by a seller's agent, the seller can be bound by it. You really have to be so careful what you say and do before the contract is signed.'

In another recent case, the seller got into an awful mess just by replying 'not as far as the vendor is aware' - the stock phrase all sellers use when they answer tiresome questions from the purchaser's solicitor.

Cambridgeshire County Council sold a piece of development land to a builder. After completion, the builder discovered a sewer underneath the land that was used by an adjoining property.

Neither the council nor the buyer was aware of its existence at the time of the sale contract.

Before exchange of contracts the purchaser had asked the standard question, via his solicitors, about rights or easements affecting the property. The council had given the reply: 'Not as far as the vendor is aware.'

The purchaser went to court, and asked for all his money back. He said the mistake was so important that he could not use the property as he intended.

The court decided that the sewer was not that detrimental, and only minor adjustments were needed. However, it was much tougher about the words 'not as far as the vendor is aware'.

Mr Samson says: 'It is not enough to just make the remark glibly as so many sellers do. The implication of these words now is that the seller has actually checked all his records and can honestly confirm he genuinely has no knowledge. The mere fact that you can't remember anything relevant at the time the question is asked is not enough.'

There is now a huge onus on the seller to research the replies to get them right. The alternative, of course, is to give an even more evasive answer - that you have not had time to check all the relevant records.

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