Property Buyer threatening to take us to court

[London76]

Sorry for the long post…
We are selling our property and before putting it up for sale we painted the main areas of the house and bathrooms, but did not do the bedrooms or doors.
The property was advertised as ‘freshly painted’. The buyer is now threatening court action against us as after viewing the property (before she put in an offer) and getting the survey completed she apparently realised at some point that some of the doors and the bedrooms were indeed not all newly painted. She is now threatening to take further legal action for false advertising if we do not pay to get the remaining areas painted. We are legally under contract now so neither party can pull out without reason, but any advice as to whether she has a leg to stand on? I feel the term freshly painted is pretty vague but not sure where we would stand legally and if it is indeed misleading or misrepresentation to say freshly painted but have not painted everything. She is a solicitor and using the firm she works for to send us the legal letters so it feels a bit intimidating.
I’m more annoyed that she is doing this 3 weeks before we complete, after we have already agreed to delay the sale for 12 weeks to accommodate her financially. We are already losing so much money as we’re having to pay 2 mortgages until it’s sold!

Agreeing with many others that the ACL does cover companies (incl estate agents) but not individuals. So her complaints should be directed at the estate agent and not you? [Also like many others, I am not a lawyer!]

'The ACL does not cover the sale of a house by an individual because it is not considered a trade or commerce transaction. The ACL protects consumers and small businesses from unfair terms in standard form contracts. It also applies to real estate agents who may be subject to the ACL for misleading or deceptive conduct.

'A transaction between a private buyer and seller is not usually considered to be a trade or commerce transaction because it is not a professional or business activity. This means that a buyer cannot normally make a claim against the seller for a breach of consumer guarantee or misleading or deceptive conduct.

So if your buyer has grounds for beef with anyone, it isn't with you. Your lawyer needs to go back and without giving any grounds whatsoever on the case in point - the painting/the wording - just suggest that it is time to crack on with the property transaction itself. The fact that the buyer can get something so basic so wrong is...puzzling. If she is a lawyer.

She might know that and be chancing it in the hope of getting some money off.

You need "Fiske" on the case.

Is it not a conflict of interest for her own firm to be professionally representing her? 🤔

As Australia is a common law country surely the Caveat Emptor rule applies there. That means that whatever is written by an estate agent in their advertising or in their prospectus is subject to the purchaser checking out the property and verifying that the property is as described.

It's clear your purchaser is chancing her arm to get money off. I wouldn't budge. She must surely have mortgage approval, done a survey, put down a deposit, all require time effort and money, she won't want to back out.

Whatever you do don't paint it lime green or paint it at all. Because then you are demonstrating badness (lime green) or that she is correct by painting it. I'd get my solicitor to write back

• the property was viewed by the purchase who verified the condition it was in can we proceed with the sale (don't get into arguments)

I've known people strip houses between contract and handing over of keys, thinks like light bulbs, sockets etc. She's an unwise woman. Best of luck it must be very stressful, something she is leveraging against you including leveraging her professional role. Very nasty indeed.

If the letter was emailed to you by the head of the firm directly, I'd assume it was legitimate. A firm can act for an employee.

Whether "freshly painted" means the whole house or just part is arguable. Do you want to argue it? You need to take a view as to whether the potential delay is worth it. Either paint the rooms or fight it, in the hope a court (that's the ultimate destination if neither of you give in) will agree with you and not her.

Caveat emptor excludes misrepresentation and that’s what they will claim here. So I bought a house with the only heating being a gas wall heater in the shower - the docs said nothing about heating so if I’d only realised after the fact and objected caveat emptor would apply, but it doesn’t as no statements were made; the ops case would hinge on whether ‘freshly painted’ is a misrepresentation. It is unknown which way that would fall, probably odds are slightly in the ops favour.

Sorry lost my train of thought midsentence. Caveat emptor did apply to my house, unclear whether it applies here.

But I do like cialins email suggestion, unless you think she is using her firm email/name improperly.

Who decided on the wording 'freshly painted', was that you or the EA and if the EA what disclaimers are on his web site about the descriptions? Often in the UK there is a disclaimer about not being responsible for the accuracy of the description. Otherwise I think you will have to do something, knock a few thousand off for the bits not painted would seem the easy way out. Get some quotes?

I’ve checked their website and the listing it appears not…

The estate agent wrote it, but we checked it over so not sure what the implications of that would be.

So tempting 🤣

Reply: "I refer you to the response given in the English case Arkell v Pressdram Ltd".

That’s how I feel, we can do it but what is she trying to achieve. The doors have been trashed as the previous (British 😂) owners ruined them by painting emulsion over gloss so it just chips off anyway. If we paint them it will start peeling off in a few months… They were the first thing I noticed when we viewed the property so I don’t know how she can say she didn’t realise…

That’s my issue too, if it was the entire house that would include the render outside, the gutters, everything else, but the only thing she’s obsessed with are the internal doors and a couple of walls.

So then what would be the damages and the remedy? Surely cancelling the contract would be the ultimate remedy for someone buying a house they're not happy with.

This is a complete abuse of the legal system and we all know it, I would be pushing the buyer to cancel the contract, because what's this clown going to threaten to bring a claim against you for after they move in?

I'd also be publishing the details of this story with their name all over the internet, so prospective sellers are forewarned. People like this ought to be blacklisted from purchasing a property.

https://lpcc.sa.gov.au/resources/useful-links/regulatory-bodies-of-legal-practitioners-in-australia

Make a complaint to the firm first, then follow the complaints procedures as set out by the regulator.

In particular, they should be complaining to the estate agent, not you. And in any case, your solicitor should just bat this back and tell them to stop being ridiculous. The buyer viewed the house before offering.

It's 3 weeks before completion. Will your husband be able to paint this week? Cause I doubt you would get tradies to do in time. I guess she knows this so will be angling for a discount rather than the actual work being done.

I think it is legitimate but I want to fight it as I think she’s being totally unreasonable. She viewed the property twice before making an offer. I’m annoyed that she’s left it so late and over 2 weeks after she last visited the property for the 3/4th time. It’s like she is looking for a reason to complain. My husband likes an easy life so we will probably just end up doing it ourselves to just get the sale done.

I think she genuinely wants us to get it done to save herself the hassle. My instinct is that she’s going to be renting it out, but I might be wrong. We won’t be able to get a tradie in time now so my husband will have to do it over the next couple of weeks and he’s terrible at painting 🤣

Thanks, we are using a conveyancer and she has replied to them with a curt response of:

‘We note the property including painting is in the same condition as when the Buyer entered into the Contract on 6 September 2024.

Please direct any misrepresentation claims to the relevant party.’

So we will await the reply from the buyers lawyer and our estate agent…

She’s just trying it on OP. In the circs. I would question whether the letter really did come from the head of the firm.

Your solicitor should be able to handle this.

I don't know why people are suggesting making a complaint against her for using her own firm (which she is entitled to do). If the senior partner emailed you (which you say has happened) then all you need to do is address your response to the senior partner of the firm and send by post and email. If she's been writing in his/her name and wasn't entitled to then she will soon be found out when the reply comes across his or her desk.

Obviously this doesn't change anything about whether the house should be painted so reporting her for whatever seems a fairly pointless exercise.

Have a look at the EA particulars for other properties. I just looked at a local property to us and theirs has a disclaimer on it:

"These particulars are not an offer or contract, nor part of one. You should not rely on statements by EA. in the particulars or by word of mouth or in writing as being factually accurate about the property, its condition or its value. EA has no authority to make any representations about the property, and accordingly any information given is entirely without responsibility on the part of the agents, seller(s) or lessor(s). The photographs show only certain parts of the property as they appeared at the time they were taken. Areas, measurements and distances given are approximate only. Any reference to alterations to, or use of, any part of the property does not mean that any necessary planning, building regulations or other consent has been obtained. A buyer or lessee must find out by inspection or in other ways that these matters have been properly dealt with and that all information is correct."