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FAO THOMAS : Further to my previous email and your respond,

FAO THOMAS : Further to...
FAO THOMAS :
Further to my previous email and your respond, I wrote the below letter to the property management estate agents and received the following reply.
Would you consider that they are correct or that I could progress with this ?

Further to our ongoing correspondence since the 12th December 2012 this letter serves as formal notification to you that my intention is to rescind the tenancy agreement under contract law for misrepresentation, Misrepresentation Act 1967.
The reason for my action is that I claim Chase Buchanan made a false statement of fact, failing to disclose all information when asked, which had the effect of inducing me into the contract.
Before making the offer and prior to signing the contract, I went on a viewing specifically to check on noise levels and made this clear to the representative of Chase Buchanan, Sarah Lowis. We stood in the kitchen, the lounge and various points around the flat to check the noise levels and I explained that having once had a previous issue of noise in a prior flat this was of great concern to me. I asked if, as a representative of Chase Buchanan, she was aware of any noise concerns with this flat to which she replied that she wasn’t and didn’t believe there had been any previous problems.
On the basis of this answer from Sarah Lowis, a specialist with skill and knowledge, I relied on this representation as part of my decision to make an offer for the property and to sign the tenancy agreement.
Having moved into the property on the 5th December and discovering that there were significant noise issues, I reported the problem to Chase Buchanan St Margaret’s offices in person on the 7th December to both Sarah Lowis and Katie Reeve.
I reminded Sarah Lowis that my final viewing had been for this specific reason, which she acknowledged. Katie Reeve was also party to this conversation.
I later discovered on the 22nd December, through speaking to the previous tenants, that Chase Buchanan were informed in writing that on the arrival of new tenants atXXXXX(upstairs flat) in April / May 2012 the current tenants ofXXXXXwere having issues with the level of noise they were hearing. They asked you to pass that information onto the neighbours as the property management agent.
The letter that they wrote and asked Chase Buchanan to forward to the upstairs neighbours on the 15th May 2012 stated the following :
“... Now that you are settled in, we were just wondering if you could be mindful of how thin the floor boards are please? We hear loud thudding noises across the flat at various times which leads to our furniture and bed headboard vibrating and we can only imagine this might be your children running around.…. please can you be mindful that we are only a few feet below with very thin floorboards and please can you be especially sensitive to this at the weekends. We work long hours and do savour the quiet time we have at home especially weekend mornings.
The above information shows that the statement given by Sarah Lowis, as a representative of Chase Buchanan, on the final viewing of the property ofXXXXX was false and is therefore actionable under contract law for mispresentation, including but not limited to one of the following :negligent mispresentation, negligent misstatement at common law or innocent mispresentation.
I would not have entered the contract had I been made aware of this information. It was communicated to the representative of Chase Buchanan that this was the primary reason for my final viewing

Response :
We have sought legal advise and can confirm that Chase Buchanan have not misrepresented the property at any time during or after you moving into the property.
At no time did Chase Buchanan give a false statement of fact. At the time of your viewings with Sarah Lowis, Chase Buchanan were not aware of any ongoing issues of noise at the property and therefore all communications between parties were correct.
Our Property Management Team received a call on 7th December 2012, to advise you had visited our St Margarets Lettings office with a report of an issue of noise at the flat.
With regards XXXXX XXXXX email that Sophi was asked to pass onto the the neighbours Sophi was only asked to pass on an email to the neighbours. The email was addressed to the neighbours and there was nothing that was requested from Chase Buchanan. The contents of the email merly asked the neighbours to be mindful of the noise as the floor boards were very thin. With this in mind, Chase Buchanan were not directly made aware of any noise issue at the flat. To re-clarify, our St Margarets Lettings office were not aware of any noise issues atXXXXXand our Property Management Team were also not aware of any ongoing issues at the flat.
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Answered in 24 minutes by:
1/11/2013
Thomas
Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 7,634
Experience: BA (Hons), PgDip, Practising Solicitor
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Hi

Thanks for your patience.

It seems that they would defend an termination on the basis of misrepresentation on two grounds 1) that the letter did not amount to confirmation that there was a noise problem and 2) that the representative who you dealt with was not aware of the email even if it did indicate that there was a problem with noise.

Whether the letter demonstrates a noise problem is arguable. It seems that the previous tenant did believe there was excess noise, but suggest also that this may not have been inherent and could be prevented by a small modification of the above neighbours behaviour. If it is the case that the previous tenants took no further action because the noise resolved itself then they could potentially defend on the basis that there was no noise problem given the modification of behaviour. It might be worth attempting to get in contact with the previous tenants to see if they complained further throughout the tenancy, if they did – and were willing to confirm this at Court - then this could be overcome.

As to whether the specific agent you deal with knew about it, you might be able to argue that even if she did not then she should have know about it because a prudent and reasonable agent firm would have sufficient lines of communication so that the email would have been brought to the attention of an agent marketing the property by another employee that was aware of the noise.

There trying to get out of it, no doubt. You’re going to have a fight on your hands if you terminate now. It would probably be imprudent to do so without first getting in touch with the preivous tenants to see if you can get anymore ammo and then going back to the agents with what you have found out.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
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Customer reply replied 5 years ago

Thanks.


A couple of questions.


I asked on viewing whether they were aware of any issues previously raised with regards XXXXX XXXXX not whether they were aware of ongoing noise problems. Does that constitute a difference or so slight it wouldn't count.


They seem to be defending that they weren't informed of an issue for them to resolve but that wasn't what I was suggesting, rather only that they had prior knowledge / information that they didn't impart when asked ?


Unfortunately the previous tenants didn't complain again as they soon after bought a property and left.

Hi,

I see. Well yes, that would get around the first of their objections.

I think they are defending on the basis that the agent you dealt with was not aware of the email that was sent to another employee of the firm as far as I can tell (ie. "Sophi").

If the agent that you dealt with genuinely did not know then it's going to be difficult to claim misrep. It might be that she should have known, which could potentially still mean that you can claim misrep.

Please remember to rate my answer.

Kind regards.

Tom
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Customer reply replied 5 years ago

thank you.


If the agent genuinely didn't know could it still be innocent misrepresentation ?


I'm trying to decide whether to suck up the £3k early release fees or try to continue to get out of the contract.


 

Hi,

Yes, it coudl still potentially be innocent misrep if they genuinely believed it.

I would attempt to find a replacement tenant to take over the tenancy yourself personally. They are under a duty not in unreasnoably refuse a replacement tenant that you bring to them. They can carry out the normal checks that they carried out on you but if the replacement meets them then they are under a duty to accept them.

Tom
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