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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11544
Experience:  30 years as a practising solicitor.
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There, I am seeking an advise in regards ***** ***** property

Customer Question

Hi there, I am seeking an advise in regards ***** ***** property law
We have purchased B listed house in Scotland 8 month ago. House was previously restored and renovated. And now we have discovered that house is contaminated by woodworm, listed panels and other wood elements. Seller knew about the problem and covered it up and of course never told this to us. In home report there is only statement that extensive timber treatments have been carried out. Our solicitor never question this statement from home report. The home report itself is not full and professionals should noted this, but this was never picked up by our solicitors.
We invited an independent property care specialists who currently planning to make full house survey, but it looks like that house is severely poisoned by woodworms.
who is liable for required restoration (seller, solicitors, survey company who carried out original survey in the house)?
Thanks, Maria
Submitted: 2 years ago.
Category: Law
Expert:  JGM replied 2 years ago.
Thank you for your question. I am a solicitor in Scotland and will help you with this.
Can you clarify your sentence:
"The home report is not full and professionals should noted this, but this was never picked up by our solicitors."
Customer: replied 2 years ago.

We have 2 home reports one is 2012 another was done in September 2014 just before sale. They both identical and signed by the same person. In the section 'rot, dump and infestation' - it says


Extensive damp and timber treatments have been carried out to the subject property. Any available reports and guarantees to be obtained and laid safely with the Title Deeds. category for repairs - 1



Once we spotted signs of woodworms - and started to look around the house - we discovered that it is a long term problem and many holes were just patched and painted over. Also some woodworm holes on stair case are so obvious and professional shall noticed such things, especially if he is doing a survey.



Our solicitor, although informed us that he is going to request these documents, never provided these document to us. As it stated in home report - cellar, loft was not inspected - no explanation why. Nothing of these has made our solicitor suspicious. While we trusted our solicitor experience and knowledge we have bought big problem now.



Hope I have answered your question.

Expert:  JGM replied 2 years ago.
From what you say there may be fault in both the surveyor and the solicitor.
Surveyor for not inspecting parts of the house unless there is a good reason for not doing so. That would exclude anything covered or concealed.
Solicitor for not getting the documents so that you can see what work had been done and make an informed choice about whether to proceed or not, although I would have to stress that the solicitor would not be responsible for whether work was actually carried out or not. Liability on his part would only be arguable if he caused you loss in whole or in part.
The surveyor should have been able to advise on any obvious woodworm issue but will not be liable for anything "covered up".
The seller is only liable for any statement made which is a misrepresentation. He is not liable for saying nothing on the basis of caveat emptor.
From your narrative, the surveyor is the best choice as regards ***** ***** a claim.
JGM and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you for your response. I am still in the very beginning of my own investigation on this issue and it can be incorrect but what I already have discovered tells me that potentially seller cannot rely on caveat emptor in my case.

Of course you do not know the scale of the issue (it is VERY serious and potentially structural issue and the job to repair this will cost half of the price paid for the house if not more. As I can understand - caveat emptor will work in the following situations: in fully restored and only 2 years since being renovated house the water mains is still from led and we have to find resources to change this to proper piping; only 2 years old decking area will have to be fully repaired because of the way it was build (rain water was accumulated in the middle, no proper drainage). I can continue this list longer and we took this as a 'buyer beware'.

Here, I think we talking about:

1. Surveyor - for not making survey properly - cellar, attic were not observed, did not even ask what type of timber treatment was carried out.

2. Solicitor - 'duty of care' for their clients, they must ask for all information and ensure that information is provided. Being specialists they must to be able to notice 'gaps' in paperwork.

3. Seller has a 'duty to disclose latent defects (this is an exception to the 'caveat emptor'). If not our 'luck' we might not find this for next 5 years or so and then we could not prove anything. Seller also has a duty of care as he got to restore to its original beauty listed building and even possibly got a grant from Scottish Heritage society (to be checked) for renovation and restoration works.

Also the Consumer Protection from Unfair Trading Regulations 2008 that is an EU legal instrument and applied within the EU (Scotland as part of the UK had to comply with these rules also, regardless its opinion on this). According to this Regulation seller MUST disclose all the information in regards ***** ***** product (immovable property is included) if this information can affect potential buyer's decision and affect the price of the product.

I really hope I am correct - otherwise family with 2 kids (2 years and 6 month) will be on a street (this is a reality). However, thank you for your response (at least I know what direction will be taken by the majority of solicitors and possibly courts). Thank you for your time, I will rate your answer as satisfactory, however, I would appreciate your comments (not mandatory so).

Expert:  JGM replied 2 years ago.
1. Surveyor - for not making survey properly - cellar, attic were not observed, did not even ask what type of timber treatment was carried out.
A. Agreed, subject to the stated restrictions on the survey which will be apparent from the HR.
2. Solicitor - 'duty of care' for their clients, they must ask for all information and ensure that information is provided. Being specialists they must to be able to notice 'gaps' in paperwork.
A. Agreed, subject to your being able to establish a loss directly attributable to the lack of information that a solicitor would, in the exercise of reasonable care, be expected to get. You will have a problem with this one as a solicitor is mainly concerned with conveyancing and that duty is fulfilled by complying with the "conveyancer issues" highlighted in the HR and no more.
3. Seller has a 'duty to disclose latent defects (this is an exception to the 'caveat emptor'). If not our 'luck' we might not find this for next 5 years or so and then we could not prove anything. Seller also has a duty of care as he got to restore to its original beauty listed building and even possibly got a grant from Scottish Heritage society (to be checked) for renovation and restoration works.
A. Do you have authority for that proposition under Scots law? If so send me the case reference and I'll read it.
Also the Consumer Protection from Unfair Trading Regulations 2008 that is an EU legal instrument and applied within the EU (Scotland as part of the UK had to comply with these rules also, regardless its opinion on this). According to this Regulation seller MUST disclose all the information in regards ***** ***** product (immovable property is included) if this information can affect potential buyer's decision and affect the price of the product.
A. I don't think these regulations still apply. There are updated regulations in 2013 and in any event they don't relate to contracts between individual sellers and buyers, just to companies and consumers. If the seller was a private individual the Regulations are unlikely to apply although I am happy to be persuaded otherwise.