How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Law Question Here...
Joshua is online now

I sold my house in December, it was vandalized a week before

Customer Question

I sold my house in December, it was vandalized a week before completion...
my estate agents told the buyer to check the property before collecting the keys but he didn't so only found out about the break in the day he moved in, by which time all funds were transferred/exchange of contracts complete.
3 months later I have now received a letter before claim from him asking for £5400, they say "the fixtures and fittings list which relates to the contract of sale states that the boiler and radiators were included in the transaction. As these were damaged/removed during the break in, you are liable to replace them."
Am I liable?
even though he was told to check the property before collecting the keys?
my agents held the keys.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Was the property sold using a solicitor with a formal contract in the "usual" way please?

JACUSTOMER-bwlj3dz2- :

yes, the "usual" way.

Joshua :

Thanks.

Joshua :

That being the case your solicitor will 99% certain have drawn your contract to incorporate the national conditions of sale (5th edition) though you will need to confirm this with him to be 100% certain.

Joshua :

It would very unusual not to incorporate these conditions as almost all residential properties are sold subject to them and even in the exceptional case where those conditions are not incorporated, it is usual to prepare a contract which broadly mirrors those conditions.

Joshua :

You can view a copy of those conditions here:
www.lawsociety.org.uk/Support-services/documents/Standard-conditions-of-sale-5th-edition/

Joshua :

In the relatively safe assumption that your solicitor did incorporate those conditions, you will note that condition 5.1.1 provides that the risk in respect of the property passes to the buyer on exchange of contracts. This includes risk in relation to fixtures in the property - there is case law that confirms this - Wickens v Cheval Property Developments Ltd 2010

Joshua :

Accordingly providing your solicitor incorporated the above conditions (safe assumption) and providing the above condition was not varied - your solicitor should have sought your instructions before agreeing any variation and explained the consequences failing which he may be negligent - you will not be liable for the damage providing there was no misrepresentation on your part regarding the same - e.g. if the property was burgled prior to exchange and you failed to notify - which from what you say is not the case.

Joshua :

In fact almost exactly these circumstances arose in the case cited above though a rather grand property was involved here. It was broken into between exchange and completion nd many fine features of the listed country house were vandalised or stolen. The buyer sued and lost.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

JACUSTOMER-bwlj3dz2- :

The property was broken into on 28 November 2014. Completion took place on 5 December 2014, simultaneously with exchange of contracts.

Joshua :

To be clear contracts were not exchange before completion but exchange took place simultaneously on completion?

JACUSTOMER-bwlj3dz2- :

yes, simultaneously

JACUSTOMER-bwlj3dz2- :

the neighbour told the buyer that she heard noises on the 28 November during the early hours

Joshua :

Thanks. And you were not aware and there is no evidence to suggest that you were likely to have been aware of the break in before exchange of contract/completion took place? No one notified you or your agent of anything unusual?

JACUSTOMER-bwlj3dz2- :

correct

JACUSTOMER-bwlj3dz2- :

I had no idea

Joshua :

Fine providing that is the case - and of course the buyer may try to show otherwise - you should still not be liable. The buyer buys the property in the condition it is in at exchange of contracts. It is for him to inspect the property to ensure it is satisfactory for his requirements. Your duties are limited to disclosing matters on which you are asked or matters which materially change what you have previously disclosed.

Joshua :

In order to hold you liable the buyer will have to show on balance of probability that you misrepresented or fraudulently misrepresented the position with regard to the fixtures - to do so he would need to show that you were aware of the break in and/or damage but failed to disclose the same.

JACUSTOMER-bwlj3dz2- :

as I mentioned, my agents told him to check before collecting the keys but he refused.

Joshua :

This position is established case law in Wickens v Cheval Property Developments Ltd [2010] EWHC 2249, Taylor v Hamer [2002] EWCA Civ 1130 and you may wish in the first instance to deny liability referring the buyer to the same

Joshua :

Is there anything above I can clarify for you?

JACUSTOMER-bwlj3dz2- :

deny liability referring the buyer to the same?

Joshua :

Sorry to be clear - you may wish to deny liability to the buyer referring him to the above cases as legal authority for your denial.

Joshua :

Is there anything else I can help you with?

JACUSTOMER-bwlj3dz2- :

finally, just to clarify, I can ask my solicitor if he drew the to incorporate the national conditions of sale. if he did not, then does that matter?

JACUSTOMER-bwlj3dz2- :

they are expecting me to respond to them by the 19th March, what should I tell them?

Joshua :

No as contracts were exchanged simultaneously it doesn't matter. This is only relevant if the damage took place after exchange and before completion which is not the case here.

Joshua :

Has the above answered your questions satisfactorily?

Joshua :

Ref your last post, you can consider saying that you sympathise with their position but you were unaware of the break in and that the buyer purchases the property in the condition it is in at the time of exchange and it is his duty to satisfy himself as to the condition of the property on exchange and to refer them to the above cases

Joshua :

Has the above answered your questions satisfactorily?


JACUSTOMER-bwlj3dz2- :

yes Joshua

JACUSTOMER-bwlj3dz2- :

and with the answer being in my favour, I am very satisfied... thank you

Joshua :

Thanks. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

JACUSTOMER-bwlj3dz2- :

will do, many thanks again...

Joshua :

Best wishes

Joshua and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Hello again Joshua,

I wonder if I could show you the reply I received today regarding my question?

Further to our recent communications in respect of the above matter, I have now had the opportunity to speak with my client who has confirmed that he was not contacted by Haarts estate agents to inspect the property prior to the simultaneous exchange/completion. From reviewing our file, it also appears that no such contact was made with us either.

I note your argument that a buyer purchases a property in the condition it is in at the time of exchange and it is his duty to satisfy himself as to the condition of the property. Having signed the contract, you will be aware that it contains a list of fixtures and fittings that were to be included in the sale of the property. Due to some of the fixtures/fittings being stolen or damaged, you are in breach of the contract by failing to transfer the property to my client with the fixtures and fittings specified. Furthermore, my view in this regard was that my client signed the contract with the intention to purchase the property as he had last seen it, which was obviously prior to the break in/damage. One of the fundamental elements of a contracts is “intention” and my client did not intend to buy a property which was badly damaged.

I also note your reference to the cases of Wickens v Cheval Property Developments Ltd [2010] and Taylor v Hamer [2002]. These do not provide “legal authority for [your] denial” in this case, as you state, particularly because our client had not been aware of the break-in when contracts were exchanged (Wickens v Cheval Property Developments Ltd ) and because there was no fraudulent misrepresentation in respect of the state of the property at the time of exchange (Taylor v Hamer).

Ultimately, at the time of the break in, you were the owner of the property and the only person with a beneficial interest in it. Therefore, the responsibility to ensure that adequate insurance was in place to cover damage to the property if there was a break in, was yours. Unless we receive payment or proposals for payment of the cost of the damage by 4:00pm on 2 April 2015 Court action would be commenced against you.

~~~ so does this mean that if I can get hold of my estate agents and they say that they did tell him to check the property before collecting the keys then he will be in the wrong?

Expert:  Joshua replied 2 years ago.
It is not up to the agent to offer an inspection. The duty is upon the buyer to satisfy himself of the condition of the property before exchange.

The solicitor is seeking to distinguish the case of Wickens (this is the solicitors job of course to make the best case he can for his client). There is no obvious basis on which to distinguish the case. The case is not of course identical to this and the outcome of litigation is never certain however the thrust of the judgement is that it is the duty of the buyer to inspect and in the absence of fraud on the part of the seller, the buyer who fails to inspect buys the property in the condition it is in at the time of exchange.

If you believe the buyer intends to proceed with a claim the likely best course of action is to notify your buildings insurer that you retaimed a policy with for the property of the position and hand the matter to them to deal with under your insurance policy. Take care not to admit liability or it may invalidate your cover in relation to the claim.