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Stuart J
Stuart J, Solicitor
Category: UK Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Dear Law We are being taken to small claims court for £5k,

Resolved Question:

Dear Law
We are being taken to small claims court for £5k, by the buyers of our house, who want us to pay for repairs to a bathroom. The say we didn't disclose a significant defect to them, a leak from the shower that damaged the flooring. The grouting has come away a little from the tile but no flooring was prised up by us and we didn't know about it. We did mention the shower door leaks and that was what the shower curtain was for. There's more, but what is the best way to defend this?
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
Please give me all the facts?
Customer: replied 1 year ago.

Dear Law


The buyers bought the property 9 months ago, they brought up issues shortly after they moved in. And our solicitors dealing with the property sale at the time dealt with it post sale. We thought it was resolved and heard nothing for months until recently.

 

The Property is over 100 years old, it took 6 months from offer to exchange contracts and 2 weeks to complete and they saw the property 3 times pre exchange, they say we didn't disclose significant defects that will result in repairs for up to 5k - basically replacing their bathroom.

 

They say they have not used it, have instead fitted a shower down stairs in the bottom toilet.

 

They say we knew about the leak because a tile on the floor has been prised up and whole cut in to the flooring for us to assess the damage.

 

We have not done anything like that, some grouting has come away, but we didn't prise the tile up and in the pictures they have provided you can see the cut of the flooring is a very old. Plus we have not tried to cover it up.

 

We did say to them and other potential buyers that the shower door leaks and that we need to use a shower curtain to prevent that leak, which is completely in full view everytime they visited.

 

They also mentioned that the push button on the toilet doesn't work and we did not tell them this. The push button is tempramental, it requires a few pushes sometimes, but it was working perfectly well when we left.

 

They also claim that there is a leak by the toilet damaging the tiles, it is one tile and we were not aware of any leak, this has also been available to see at any visit they made, they say a builder/plumber looked at it and that the toilet should have been bolted /screwed to the floor, apart from using th toilet we have not done anything to it, it's the same as when we moved in (we owned the property for 2 1/2 years)

 

They also claim that underneath the shower and the bath are cracks, we again have know way of knowing this, and they only found this out by getting a plumber and builder to investigate, so how are we supposed to know - if experts needed to find the problem. And I've yet seen any proof of this.

 

Finally they say they paid £100 for some electrcis to be re-done from under the floorboard in the lounge (we weren't to know about that neither) if its under the floorboards, if it was dangerous it's important to us because we had a 12 or so month old at the time - now 2 years old.

 

They have quoted a south african law to us in their claim which makes no sense as it's English law that needs to be referred.

 

We haven't seen a survey, so don't know what came up or even if they did one. The property is over 100 years old, so you would definetly do one.

 

They had ample time to ask any questions or investigate the issues like they have recently pre-exchange of contract, rather than post sale. They never brought up any issues or questions in reference to any of these areas before.

 

Happy to send you copies of their letter, but I'm at work and can't attach it at the moment.

 

They are saying we new about these significant defects and didn't tell them about it. We refute that completely - how could we know.

 

It also seems like they may not have done a survey, but surely this is matter that would have been brought up in the survey and if it wasn't it needs to be addressed to the surveyor not us or they should go to their buildings insurance.

 

Which if we know about it, is what we would have done to it put right.

 

They said since the offer we had neglected the property, which is not true, we waited 6 months to exchange and there is normal wear and tear, but thay could have pulled out pre-exchange, so it doesn't make any sense for us to negelected the property. And we're not like that.

 

In a couple of letters at the time our solicitor was dealing with this, they mentioned a leak froma downstairs radiator not claryfying which one, we did have a leak from a radiator but this was fixed by a qualified plumber before we exchanged. So why we wouldn't fix another if there was such as thing makes no sense.

 

The property is old and the condition was not New and the price of the property reflected that. The exact same property 4 doors down that has a new bathroom and windows etc, was on the market for £25,000 more and I'm just trying to find how much it actually sold for.

 

As I said I can provide you with their claim later, but what do you think is our best way to defend our claim, as we have a few days to respond.

 

We have already send the acknowledgement that we will defend the whole claim and so we have a few more days to put our case forward to the small claims.

 

We don't think we should pay for any of this and I'm staggered to think they think its our responsibility, given the "buyer beware" and "sold as seen" is quoted to me by friends.

 

Appreciate your advice. Do you think a call would help to explain or answer your questions?

 

Thanks

 

Expert:  Stuart J replied 1 year ago.




Thank you.

I think they are clutching at straws and personally I would be telling them
to get lost from the facts that you have given.



I assume that their solicitors are not dealing with this. That is why they
have gone to Small Claims Court.



With regard to the purchase of a property, caveat emptor applies (buyer
beware) to all property purchases. You are not under a duty to disclose any
defects although you cannot misrepresent the property and if they specifically
ask the question, you must not Iie.



So, it doesn't matter if the bathroom is leaking not provided if I asked
the question of you ever had any leaks, you reply honestly. However, there can
be innocent misrepresentation and fraudulent misrepresentation. If there was a
leak but you simply did not know about it, you can possibly be liable innocently.



I would like to know on what basis they are bringing the claim. Are they
saying that you misrepresented the property?



You need to look at all the questions they asked and look at your replies.



The only possible question that I can think of that they could have asked
in their precontract enquiries is "has the property ever been flooded"? In
which case, I would submit that even if there is a drip or a leak, that does
not constitute a flood, and indeed cannot constitute a flood if you were not
aware of it!



However even if you were aware of it and covered it up so as to hide it,
provided they did not ask the question, then that is their fault for not getting
a surveyor or other professional to inspect the property. Caveat emptor. If you
Google the phrase, you will get lots of reading.



With regard to the pushbutton on the toilet, I think they really are
clutching at straws unless they asked the question as to whether all the
fixtures and fittings were in good working order.



This is one that I would be going to court over and I would be defending on
the basis that the contract is caveat emptor (the judge will be fully aware of
this) and that you have not failed to answer any of their enquiries honestly.



On these facts, (you never know what
kind of stories the claimant is going to come up with) that claim will fail but
I obviously cannot guarantee that. I think it more than likely and I would be
happy to go to court if this were made. Make sure that you ask for your
out-of-pocket expenses for the day to be awarded against them if they go to
court and lose.



Can I help further?



Please bear with me today because I am online and off-line. Please don't
forget to positively rate my answer service (even if it was not what you want
to hear). If you don't rate it positively, then the site keep your deposit and
I get 0 for my time. It is imperative that you give my answer a positive
rating. It doesn't give me "a pat on the head", "good boy" (like ebay), it is
my livelihood!

If in ratings you feel that you expected more or it only helped a little,
please ask.



Customer: replied 1 year ago.


Dear Law


 


Thats certianly given me more confidence, they haven't mentioned the details regarding innocent misrepresentation or fraudlent misrepresentions so far, how would that affect us if they did.


 


And I've attached the letter we were going to respond with, am I missing anything or adding anything I shouldn't? Could you take a look and let me know?


 


And should we put Caveat Emptor in the defence document. I think if you could help me on those fronts, that would be a relief and ofcourse I would be happily rate you the top marks.


 


Hope thats ok?


 


Here is my letter below, I wasn't sure how to attache it so I just copied and pasted it, thank you for your help? Please let me know what to add or take out please.


 


Response to point A and B


The claimant’s basis for claim appears to be that we were aware of the damaged floorboard prior to the sale of the house and did not reveal it. We refute this and offer the following in support:



  • The buyers claim that there is ‘trap door’ cut into the floorboard, which they offer as proof that we were aware of the damaged floorboard. We have never lifted any tiles on the bathroom floor and certainly never cut the floorboards. In fact the claimant’s second letter to us states that the damage is clearly not caused by cutting, so we are a little confused as to what exactly the condition of the floorboards is.


 



  • It is entirely possible that the owners previous to us may have cut into the floorboard, which we would have been unaware of unless we pulled the tiles up – which we have not done.


 



  • As you can see from the grouting surrounding the tile, it is the same colour as the rest of the grouting on the floor. This is indicates that these tiles have not been removed since the floor was laid, long before we owned the property (reference claimants photograph)


 



  • The claimants state in their second letter to us that ‘it beggars belief that [the vendors] had no idea of the damaged floorboard’, but neither their surveyor nor them - on any of their three visits to the property - noticed anything that caused them to raise any concerns. So, why they expect more from us than a trained surveyor or themselves is incomprehensible to us.


The buyers also refer to cracks in the shower unit and bath. We had no knowledge of any such cracks and offer the following in support:



  • There are no photographs of these cracks supplied, so we do not know where they are purported to be. We suggest that they are not visible without lifting the flooring and removing bath panels, as they have not been mentioned prior to the plumber’s inspection several months after the completion date. Therefore, we do not understand how we were supposed to have had any knowledge of them.

  • As far as we were aware, with proper use of the shower curtain provided, the shower cubicle and bath were both leak-free.

  • The buyers suggest that we concealed the fact that the shower door leaks. We mentioned this to them and all other potential buyers viewing the house and it was clearly evident (from the presence of a shower curtain) that a shower curtain was required. The leak in the door was not mentioned in the SPIF as nowhere in this document does it ask us to comment on the shower door or the condition of anything in the house. The SPIF asks us to note what fixtures and fittings we were leaving, and this included the shower curtain. This shows we had no intention to deceive.




Response to point C



  • We were not aware of any leak at the back of the toilet. Again, if the damage was so obvious why was this not noticed or brought to our attention prior to the exchange of contracts. In the documentation they provide it suggests there has been a leak for some time – in which case this would have been visible.


 



  • The photograph the buyers have provided shows one discoloured tile at the back of the toilet, which based on the condition and age of the bathroom, did not cause us to suspect any significant damage.


 



  • This problem was only identified by a professional, therefore as we are not professional plumbers we could not have known this was a significant defect. Clearly, they have had to bring in a professional to make this assessment. The opportunity to bring in a plumber previous to exchange of contracts would have allowed the buyers to identify this and bring it to our attention pre-exchange of contracts. This is clearly the legal responsibility of the buyers not sellers in the sale process.


Response to point D


Please see response above regarding leaking shower door. We knew about a leak in the door only (rectified by the use of shower curtain), but no other leak in the shower or bath.


We noted that the flush button on the toilet was temperamental, in that you may have to press it twice sometimes if it becomes stuck. It was functional when we vacated the property. We certainly would have replaced such an inexpensive part of the toilet if it was preventing us from using it.


 


Survey


The buyers have not shared with us any information from any survey undertaken – which we assume they would have commissioned on buying a house that’s over 100 years old. So we are left in the dark regarding their knowledge of the condition of the property prior to the sale.


If any such survey did take place, we need to ensure that it did not raise any salient issues that the buyers should have acted upon prior to exchange.


No concerns or questions were brought to us regarding the condition of the bathroom prior to exchanging of contracts.


 


Hidden defects


If they needed professionals such as a qualified electrician, plumber and builder to raise the flooring to identify such defects, it is clear that we would not have been aware of them. Therefore, we did not purposefully conceal or deceive.


 


Building insurance


The other safe guard that protects buyer and seller is building insurance. Had we been aware of any such significant damage prior to the completion date, we would have been able to rectify it on our buildings insurance. As the damage was discovered after the completion date, we presume the buyers will have building insurance that covers this.


This raises two questions; do the buyers have building insurance? And has the building insurance company rejected their claim if one was made? We raise these questions as we are surprised that they feel it is our responsibility to foot the bill.


 


Referencing law


The quotation included by the buyers in their claim statement seems to be referring to the South African Consumer Protection Act and the case reference tried under South African law. Therefore, we feel that these are not relevant to this case.


However, we do recognise that it is important to be open and honest during the sale process, which we were.


 


Wiring


We were certainly not aware of any illegal wiring anywhere in the property. We would have fixed dangerous wiring had we been aware of it, given that we had our year old daughter living at the property. The buyers have not mentioned this issue to us other than in this legal claim. The fact that the buyers seem to expect us to have known about wiring under the living room floor illustrates the unrealistic expectations they had of our responsibilities regarding information in the sale process.


General condition and pricing of property


We would like to point out that the condition of the bathroom was reflected in the asking and sale price. Had the house been in a newer condition, we would have expected a much higher price (based on selling prices of the other houses in the connecting block of four). The buyers bought the property for a fair price given the condition, about which we were open and honest. They had every opportunity to inspect further to discover those problems that we may not have been fully aware of.


Maintenance of property


We also seem to be accused of not maintaining the property in the six months between the offer being accepted and the completion of the sale. Firstly, it was due to the buyers’ chain that the sale took so long to go through; we waited for them at considerable inconvenience and cost to ourselves. And secondly, we refute the suggestion that there was any damage over and above normal wear and tear. We find it insulting that they would suggest that we would not maintain a property that we were living in with our baby daughter. And, given that the process was incredibly slow, there was a very high chance that the buyers would pull out and we would have to find new buyers. It would therefore have been directly against our own interests to neglect the property in that time.


Six months is a long time, especially in a property of this age and some wear and tear is expected. In the previous exchange of letters between both parties’ solicitors, it has been noted that, according to the law, we are only responsible for damage that occurred in the two weeks between exchange and completion. And the buyers do not seem to be claiming that any of this disrepair could have occurred in that time. Therefore, we are not legally responsible for any damage mentioned in the buyers’ claim.


 


Final summary


As far as we are concerned, we acted openly and honestly and in the spirit of the law during the entire sale process.


We refute the claim that we had any prior knowledge of significant damage to the property and have provided evidence to support this. We have not concealed or lied about the condition of the property and provided the buyer with every opportunity to make their own assessments.


It is an old bathroom that is not in immaculate condition, which was always evident and reflected in the price. We feel that the buyers seem to have expected us to fulfil the role of a surveyor in investigating and reporting comprehensively on the condition of the property.


It seems evident that the defects that form the basis of this claim could only have been uncovered through professional inspection. Professional assessment of the condition of the property prior to exchange is clearly the responsibility of the buyer not the seller in UK law. We therefore defend this claim in full.


 

Expert:  Stuart J replied 1 year ago.





I would keep all that for court, but to be frank, you don't need any of it.

I would simply write to them and acknowledge their letter etc etc say that:



this is the purchase of a property
and is governed by the Law of Property
Act 1925 and the Law of Property (Miscellaneous Provisions) Act1989.



As such, caveat emptor applies and you put them to strict proof as to
where, in replies to their solicitors enquiries you have failed to disclose any
defects they have specifically asked about and to point out where in statute
you are under a duty to disclose any defects which they have not specifically
enquired about.



I would tell them that if they do not understand the significance of the
above, they should take legal advice (my comment: they need to take legal
advice because, on these facts, they have not got a clue what they are doing).

 

The purposes of the defence.

I would put that: this is the purchase of a property and caveat emptor applies and you put the defendant to strict proof as to any misrepresentation in replies to pre contract enquiries.

That is all you need



Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 19550
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 5 other UK Law Specialists are ready to help you
Expert:  Stuart J replied 1 year ago.

PS That last bit should read "For the purpose of the defence...

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