“I have heard of a man who had a mind to sell his home, and therefore carried a piece of brick in his pocket, which he showed as a pattern to encourage purchasers.” – Jonathan Swift 1667-1745.
It is of great comfort to observe that even in the 18th Century vendors placed much importance on representing the sale of their wares so accurately!
In the present day, vendors and purchasers alike are reliant on their agents portraying their property in such a way that is as accurate and as representative as possible. The observance of due diligence in this manner by vendors' agents has been enshrined lawfully under the guise of the Property Misdescriptions Act 1991. This Act requires the vendor's agent to use all possible diligence in order to portray a property in its truest sense. The Act has been open to interpretation since its advent. It tells us to describe the property so that the “ordinary man on the Clapham omnibus” is cognisant of our intention. Agents are employed by vendors to sell their properties and it is in that capacity that they have a duty to portray their client's prized possession in such a way that will be pleasing to the vendor and attract attention from would-be purchasers. The house may be described as being beautifully interior designed but to the man on the Clapham omnibus, it might not be to his taste! So as you see, we have a dilemma. Mr Swift’s acquaintance might have fallen foul of the Act if all the bricks in his house were not of a similar colour and texture to the one that he so uncomfortably carried in his pocket!
There is another side to the Act which deserves attention. It requires agents to set out clearly and accurately the property’s tenure, its outgoings and any other form of financial interest that a would-be purchaser might have to bear. I am continuously amazed by the significant number of fellow members of my industry who never bother to obtain or read a lease, fail to enquire as to the accuracy of the current ground rent or service charge and pay no attention to obtaining information on the status of the building from the managing agents. We may have loathed them but at least a Home Information Pack tried to get to the bottom of this! Sales details for such properties are prepared in haste and, as such, many of the financial statistics set out are either wholly wrong or lacking further information in sufficient depth. We are all aware that the act of due diligence is not satisfied by a casual telephone call to a vendor. Many of them are ignorant of their own obligations without seeking further information from their files or managing agents. This is a good opportunity to inform all would-be vendors who might be reading this article that the Act does establish a responsibility to themselves as well as the agent in the process of due diligence.
Vendors and agents alike would have a much more trouble free, smoother and successful relationship during the process of sale if due diligence is adhered to. Purchasers are happier, solicitors breathe a sigh of relief and we all get on famously! I would like to suggest to all my friends in the industry to show due diligence wherever possible, obtain a lease, read it, ensure your vendor verifies the right facts and enhance the reputation of our trade by knowing all the answers before you are asked them. There is nothing worse than the well known cry from an agent – “I am afraid I don’t know. I will have to ask and ring you back” – it really does none of us any good.
Mr Swift’s friend might well have been right, maybe we ought to carry a piece of stucco in one pocket and a Pont Street “Dutch” brick in the other!
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