non disclosure on property info form of problem neighbour

[Bramblebeany]

Hi, we have bought a flat for our son at uni, we went twice to look round and all in order. However when we went after completion the lift doors opened and we were met with the overpowering smell of wee coming for the next door flat. He is a council tenant and the council are currently going through the legal process to gain entry. the lady that sold the property to us was fully aware of the problem and had complained along with many others to the onsite caretaker (employee of the council who are freeholders) the seller completed a Property Information Form (3rd edition) TA6, and ques 2.1 and 2.2 refer specifically to the issue of nuisance neighbours. ~I am looking at taking a small claims court action against her to get some financial recompense, the seller now lives in Germany, am I still able to take her to court and if so do you think that 5% of purchase bprice is a reasonable sum to claim for?

What kind of measurable loss have you suffered?

Whilst I sympathise, I believe there have been very few case in which buyers have sued sellers for misrepresentation in this form, and you would need to prove that the non-disclosure had a material affect on whether you would have purchased the property, or that you have suffered material measurable loss due to it.

You would also need a qualified bilingual lawyer.

My honest opinion is that it's not worth the time, aggravation or costs involved, especially now the vendor is abroad. Does the flat you purchased smell or is it just the access?

If it is just the access and the council is taking steps to deal with the issue with the tenant then I would concentrate my energies on other things.

When you buy a flat in a block like that and there is a mix of occupants - owners and tenants

We were in a situation where our vendor didn't bother to check the state of the place when his tenants moved out and we were left with a skip's worth of junk, missing carpets and light fittings and a filthy house to get cleaned. We considered our options and decided that getting on with things was more constructive as we had bought the place for a good price and negotiated a reduction following the findings of the survey.

Just realised I skipped a bit in my drafting:

When you buy a flat in a block like that the and there is mix of occupants - owners and tenants - it is not the same as somewhere where the flats are all owner occupied.

I guess the thing is that we cannot have any of the windows open as the smell comes in from his windows (which are open all the time) also there are maggots/flies/pigeons on his balcony, which is next to the bedroom window in our flat. Had we known about this before we bought the flat we may not have pulled out but we would have certainly renegotiated the price because of it. If there is no legal recourse why do they have the TA6 form in the first place? ques 2.1 and 2.2 clearly ask the seller whether they no of any issues as well as whether they have reported them. The seller is English and has moved to Germany, I have her address and she also sent me her bank details (HSBC) so I am guessing it wouldnt be impossible to sue her?

I think the TA6 does mean a documented dispute, so if the council have written proof that the seller contacted them regarding the neighbour's wee smell, then you should have a case. Unfortunately, if the seller only made phone calls (and were not recorded) or didn't actually complain herself, then it would be very hard for you to prove that she had an open dispute with the neighbour, especially if the complaints were only made to the caretaker verbally rather than the council itself.

This is what the TA6 says:
2.1 Have there been any disputes or complaints regarding this property or a property nearby? If Yes, please give details
2.2 Is the seller aware of anything which might lead to a dispute about the property or a property nearby? If yes, please give details

Both of which she aswered no to.

On the notes it also has this paragraph:
It is very important that your answers are accurate. If you give incorrect or incomplete information to the buyer (on this form or otherwise in writing or in conversation, whether through your estate agent or solicitor or directly to the buyer) the buyer may make a claim for compensation from you or refuse to complete the purchase.

If it is not documented, she can say no.

If you take action against the vendor, will it fix the problem? In all likelihood she will just deny there was an issue and it could be difficult to prove otherwise. Even if you won in court in her absence I don't know how the court would enforce any monetary penalty with the vendor living in a different country.

I would concentrate my actions on dealing with the current situation, supporting the council's action, doing what you can to deal with the smell and pests/vermin until it is resolved.

Bear in mind that you may plan to sell the flat on when you son has completed his degree and will have to fill in those forms yourself.

When does term start? A lot could happen between then and now.

I would disclose anyway. What has irritated is that she has knowingly completed the forms incorrectly. I have confirmation from all the other neighbours that it is a 'well known' and documented problem. I want money from her as recompense for the fact she lied. As I will declare when selling that will have an impact on the price I will be able to achieve, a fact that she knew when selling. Seperately is the issue of the tenants problems...he is not receiving the support he clearly desperately needs and I am attacking that through the cabinet member under who's portfolio this comes ( I have sent 2 emails so far and not so much as an acknowledgement!) I see this as 2 seperate issues - I would hope that if I can prove she knowingly falsified the documents the court should find in my favour?

"I want money from her as recompense for the fact she lied"

Problem is, the courts won't give you this. You need to prove a monetary loss; you can't get compensation simply because you are annoyed at her, or simply because she didn't disclose. Her non-disclosure has to have had a material impact on you, and that is what you are going to really struggle to prove.

what was she complaining about to the warden? If the issue wasn't noticeable when you viewed twice, it clearly wasn't as bad then.

re reading what I have written, I see your point. However we will now have to disclose the issues when we come to sell in 2 yrs time (when our son finishes at uni) which will have a negative impact on its value (from what I have ound online this could be anywhere between 5 and 10%) she complained to the caretaker about the smell and also flies coming from next door. (as per caretaker) she did not formalise her complaint to the council, I presume because she was about to put flat on the market.
Everyone else on that floor has also complained and talked between themselves about the issue (the seller being one of those) It in very early spring when we visited and there was a slight smell but nothing of note. then again the windows were shut and we didnt hang around in the hallway. I would just like to have some recompense as ultimitely her non disclosure will have an impact on the price we will achieve on resale. Had we been made aware of the issues we may not have proceeded with the purchase

It is annoying, but should be a temporary problem if the council are going through a process to get the property back.

Well - if the council do sort it out as you suggest they are doing, there won't be a problem in 2 years time hopefully. So at present you can't use that as an argument because it may well be irrelevant.

I suspect you may struggle to prove she had any such conversations as well if she didn't formally complain.

Little point in emailing the Cabinet Minister responsible - if you email the local MP, they will get in touch for you and it will be much more effective than you doing it. Although it will still take a month or so to get a reply.

i've been down the english small claims court process before, and is was a great deal of aggravation, and took a long time, as the person i took to court kept finding spurious (and, it turns out, fictitious) excuses to delay the hearing - i pursued it to the end because i'm a stubborn sod, and felt it was a matter of principle. i won, and regained my money, with interest, and some additional compensation.

in retrospect, however, it probably wasnt overly healthy for me, and i would have been better off letting it slide.

it seems that if the usual residence of the person you wish to claim against is overseas, you can't use the UK small claims system. as they are in germany, you will need to use the european small claims procedure, however this appears to be only applicable for claims of less than €2000. if you are after more than this, i believe you have to use the national court system in germany...and that will definitely involve solicitors, significant fees, and even more inconvenience and cost on your side.

this link gives some additional info: hmctsformfinder.justice.gov.uk/courtfinder/forms/ex725-eng.pdf

i understand your anger and frustration, but really consider hard whether this is an avenue you think will be worthwhile to follow, especially, as others have said, the problem well may be temporary.

Thanks for all the advice. The cabinet member at the local council is who I have contacted. I dont think the local mp is to good!