Legal question

dowie

dowie

dowie

Caporegime
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Recently completed on a flat, however upon moving in I found a broken extractor fan in the bathroom.

It was working when I viewed the flat/made an offer and then when I went back a few days later after to see the area/chat to the neighbours I learned that the fan had been left on for a few days by the agent and didn't sound too healthy. I spoke to the agent about it and later mailed them to confirm that it had now been turned off and that there wasn't anything wrong with it and they confirmed it was OK.

I've now completed on the flat and the fan isn't working - in the grand scheme of things its a minor issue but the thing that has bugged me is the blatant bare faced lie from the agent - not just sales chat but answering a simple factual question. I've called my solicitor who'll write a letter but tbh.. completion has happened now and I've already paid the fees etc... so doubt they'll pursue it further (and tbh.. it would be pointless me paying fees to do so) and I wasn't about to have a big conversation over it.

Its just more the principle of it rater than cash - my question is this - can I legally go after the agent myself via small claims court/moneyclaim.gov.uk I don't want the vendor to have to pay as it wasn't his fault so if its a case of I'd have to pursue the vendor then given the facts he has to pursue the agents then I'm not going to bother. But if I am likely to be able to pursue the agents then I'll do so out of principle even if it is just for say a £50 fan or a £100 maintenance visit or whatever it comes to.
 
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Yup they did - I asked them a direct question, they knowingly lied (presumably because it was a vacant property and they didn't want to have to tell the owner they'd gone and broken something which the buyer now wants fixed). Essentially its now going to cause me hassle until fixed as every time I turn on the lights to go to the loo this fan starts spinning very lowly and then won't switch off after the lights are turned off (meaning I currently need to switch the fuse for the bathroom on/off each time I need to use it).
 
Expect them to stonewall you. Happened with me and a damaged door in between settling the lawyer did approach them for me but they came back saying 'not revealed in survey', essentially **** off.

Couldn't be bothered wasting the time or money on it and got on the phone to a friend for a new door instead. I like a principled argument but it just felt midly futile in the larger picture of things to me.
 
I'd think you could go after them if you really felt like it - they provided information that you relied upon as part of a professional service, arguable a duty of care involved there. However the expected response would be along the lines of "we switched the fan off, tested it afterwards for a short period and it appeared fine" - it's then almost certainly up to you to prove that they are lying and that it was their fault which will be difficult if not downright impossible. Essentially you're on a hiding to nothing, even if you win you're likely to have expended as much time and money on getting them to admit fault as you would get back so unfortunately while annoying I'd be tempted to just suck it up.
 
An extract fan is under £20 and is easy to replace (if you can change a plug you can do this). Why would you bother perusing something so minor. Sure you can play the principle card but you will expend more effort upholding your principles than you will simply replacing the fan.
 
Yes I'm already aware that it is a minor cost to pursue like I've already said before - its currently causing me to have to faff about a lot - I need to turn off the bathroom fuse on and off every time I use the toilet.

The point is I specifically asked about it being broken, I was lied to and now its caused me a minor cost and a bit of faffing about. Its not that much effort to pursue - I'd just need to claim on moneyclaim.gov.uk but I want to clarify whether its the vendor or the agent who is liable.
 
She's already written it and not charged me. Though I'm not going to use a solicitor to pursue this further as that would indeed cost....

Anyway what I'm trying to establish is who is liable in this situation.
 
Firstly question is whether a working fan was a term of the contract. That depends on an analysis of the agent's statement and factors like whether it appeared as a term in the written contract, whether it was essential to you, whether you has the opportunity to verify, how long elapsed between the email and the signed contract, inter alia. If so, you can sue for breach of contract.

Second question, if it was not a term and it does not sound like it, was whether it was an actionable misrepresentation. It was certainly a false statement of fact, but did it induce you to enter into the contract? Need not be the only factor, but has to be a material one. My instinct is that you would have entered into it anyway, so there is no misrep. If there were you could claim damages or even rescission theoretically (not going to happen for this).

The agent was, well, the agent of the seller so the seller would be liable to you for the agent's actions. He would have to then go after the agent himself.

You could theoretically go after the agent for negligent misstatement under Hedley Byrne v Heller but to cut a long story short that would fail here too.

In summary: you might have a claim for breach of contract or misrep, but it all depends on lots of factors and would involve you paying a lot of money to lawyers to find that out and you would not get a costs award in small claims. So best to seek some extra-judicial remedy or let it go.
 
Thanks for your reply :)

Nikias said:
Second question, if it was not a term and it does not sound like it, was whether it was an actionable misrepresentation. It was certainly a false statement of fact, but did it induce you to enter into the contract?

Need not be the only factor, but has to be a material one. My instinct is that you would have entered into it anyway, so there is no misrep. If there were you could claim damages or even rescission theoretically (not going to happen for this).
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I'd have certainly asked for it to be fixed prior to completion.

We also had an issue with appliances, the agent had said during the viewing prior to the offer that they were all included, later on she stated the vendor wanted to sell them to me. I told them that my offer was based on the appliances being included and the vendor backed down.

I think that with the fan as the agents broke it and, after having already caused problems with the vendor over promising appliances that he'd presumably not told them were included they likely didn't want to go back to him and tell him they'd also damaged a fan too which now needs to be repaired prior to completion.

The agent was, well, the agent of the seller so the seller would be liable to you for the agent's actions. He would have to then go after the agent himself.
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Thanks, that's what I was wondering and why I started this thread. If that's the case then I wouldn't be pursuing it as I don't personally want to cause the vendor any hassle.
 
dowie said:
Thanks for your reply :)
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You are most welcome. :)

dowie said:
I'd have certainly asked for it to be fixed prior to completion.

We also had an issue with appliances, the agent had said during the viewing prior to the offer that they were all included, later on she stated the vendor wanted to sell them to me. I told them that my offer was based on the appliances being included and the vendor backed down.

I think that with the fan as the agents broke it and, after having already caused problems with the vendor over promising appliances that he'd presumably not told them were included they likely didn't want to go back to him and tell him they'd also damaged a fan too which now needs to be repaired prior to completion.
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It is not so much whether you would have asked for it to be repaired as whether 'a working extractor fan' (or at least all appliances working and correct) was actively present in your mind when you signed the contract. It does sound as if that could well have been the case from what you say.

There are at least the three possible claims I set out above (two against the vendor, one against the agent personally), but I seriously doubt whether it was a term of the contract. The unfortunate thing is that your strongest claim would appear to be against the vendor for misrepresentation, which you don't want to do over such a relatively small issue really anyway. If you made a big thing about the appliances before the exchange of contracts, then you might have a decent chance of winning a claim under s.2(1) of the Misrepresentation Act 1967 because the burden of proof reverses to the agent to prove he reasonably relied on his statement.

dowie said:
Thanks, that's what I was wondering and why I started this thread. If that's the case then I wouldn't be pursuing it as I don't personally want to cause the vendor any hassle.
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If you are somewhat bloody-minded (i.e., like me), it might be worth writing a strongly-worded letter to the agent indicating that they made a negligent misstatement and are personally liable to you for your loss in reliance on it. Use Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and Caparo Industries plc v Dickman [1990] 2 AC 605 as your authority. Say they owed you a duty of care and breached that duty, causing you a loss of (whatever it costs to get the fan replaced/repaired). I agree entirely with what semi-pro waster said about your chances of winning such a claim (i.e., not high because the burden is on you, unlike with the misrep. claim above) but if the damages as compensation you demand from them are not excessive then they conceivably could pay you off. So long as you don't waste too much time writing the letter and it winds them up sufficiently, that is a victory in my books in any case. :D
 
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