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.
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.
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.
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.
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.
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.
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.