Exchanged contracts, discovered seller not been tranparent

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Durzel said:

The seller of this property was an active participant in the planning resistance. The notion that he/she would not have known about the appeal is ridiculous to my mind. More likely, and pretty obvious to any objective observer, is that the seller realised - or were themselves advised - that the chances of an appeal succeeding were significant, and therefore tried to sell up to avoid the devaluation hit themselves. This tactic obviously only works with a lie of omission to the buyer.

Not sure the solicitor would be on the hook, based on the information they would've seen at the time, but the EA and seller are (imo) clearly culpable, the seller moreso.

(Not a lawyer or property expert though, so take with pinch of salt)

Yup, that is our thinking.

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essayer said:

Are you saying they didn’t complete the bit in TA6 which says something like ‘are you aware of any local developments which may affect the property’ at all?

When was this form received/completed in relation to the appeal?
Did your solicitor not clarify with them why the did not complete that part of the form?

They left that section blank (implying nothing to be aware of).

Form completed week after appeal made public. See earlier posts - if we give BOD and assume they were unaware at time of declaration - does that get them off the hook? Maybe, if their obligation is only to be honest at time form is signed and anything in 6 weeks after that leading up to exchange is our hard luck.

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Muncher said:

This is not an entirely straight forward issue and I don't believe there are any posters in this thread who are qualified to advise on this.

As your solicitors have pointed out, issuing proceedings against the seller is a very risky, and potentially very expensive strategy. The sellers have likely taken their own legal advice on this.

Thanks, we tend to agree this is too riskier a strategy.

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Wobbegong said:

The company will probably win the appeal. We had similar in Hatch Warren near Basingstoke, a company wanted to build an anaerobic digestion plant.

Despite residents trying to stop it, it went ahead.

Despite the council promising it wouldn't smell and there wouldn't be lots of lorries racing through the residential streets each day, it stinks and there are lots of lorries racing through the residential streets each day.

Glad we moved!

I too have little faith in residents activism / people power, although they are clearly doing the best they can and making some strong arguments.

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CAPP0 said:

Are you mortgaging it? Would the Building Soc have an interest in a potential devaluation of the property in the near future? Worth raising with them too?

Sabotage our own mortgage? It's an option. But we'd still be on the hook for the contract if they pull the lending. I think this is a question for the solicitor Monday morning...

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@silentbrown
Amazing, that helps - so it's not a fixed declaration at time of form filling, seller has duty to inform solicitor thereafter too.

We have evidence that they were involved in the case, so I don't think that should be a problem.

Thanks all so far. Will post outcome later this week...

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essayer said:

The form is a tick box yes or no so if they had not ticked either one I would say that should have sounded alarm bells somewhere, maybe the solicitor is remiss in not pointing it out to you

Yup, seems likely they didn't give it due attention. Box was entirely blank and no questions asked.

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elanfan said:

Sounds like your sellers are real low life sts. Wonder why they were selling? There was only one reason!

First thing Minday INSTRUCT your solicitors to halt the purchase, advise your mortgagees of the situation - doubtless they would not have approved the loan as the valuation would not be met and state they refuse to allow it.

Get your solicitors to cancel the contract, ask for the return of your deposit which will be in TP solicitors client account. It looks like your solicitors will be able to cite several recent cases of similar deceptions - get them to quote these and state you will chase the third party for your legal and costs so far or alternatively they can agree to quietly withdrawing from the contract. I think your solicitors need to go in hard and I think they should do so knowing full well this could have legal/cost implications for them which might make them pull their finger out. If they need specialist advice from a barrister whose specialism is in this field suggest they do so rapidly and at their own cost.

If you proceed with the purchase you will hate being there, you will potentially have years of stress with appeals and counter campaigns, years of traffic, smells and being unable to sell and a much reduced value. DONT DO IT! The seller will know they are on very dodgy ground and won't want to risk the high likelihood of legal action and high likelihood of losing. They will not sue you for withdrawing for this very reason!

I hope you are keeping hard copies of all the evidence. Do you have legal cover on your home insurance - if so use it quickly to get a specialist involved.

Very good luck to you and yours!

Thanks, sounds like a good plan.
We'll see what they say tomorrow.

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SantaBarbara said:

Who owns the land on which they want to build the new plant?

The company who want to expand it into a full blown operation. Currently it's just an 8-10 lorry storage centre.

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garyhun said:

Shappers24 said:

That form is quite ambiguous though. The site is 120metres away so is that classed as 'nearby'..?! The owner probably wouldn't have been notified by the planning authority directly of the planning application given the distance.

Very true.

All residents were notified 4 weeks before exchange.

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garyhun said:

As has been posted by another member, is 120m away counted as nearby? The appea issue could be the OPs solicitor's failure, not the vendor.

That may be so, which is why our solicitor needs to sort it else they'll be in the firing line

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Muncher said:

I don't think that sounds like a good plan. If I were acting for the sellers the deposit wouldn't be going anywhere. Again, be very wary of accepting legal advice from those that are not qualified to give it! I would be interested to know why your solicitor didn't press for a response to the unanswered question. My gut instinct is you have a better chance of making a claim against your solicitor than successfully rescinding the contract.

I think the consensus is roughly 50/50 - one half suggesting because there appears to be a strong case of misrepresentation, it's unlikely they'll come back at us. As someone said, it puts us in the driving seat but a risky move with short timeframes involved.

And the other half suggesting a claim against the solicitor would be easier. They are insured for this sort of thing, I understand.

But as must be apparent... I'm no expert so we'll press for specialist advice tomorrow.

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Muncher said:

There's no such implication there.

Well, that's what our solicitor inferred at least. We took their advice that 'blank meant nothing' at face value, which doesn't seem unreasonable.

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Appreciate the replies from all angles, it has provoked some interesting discussion at least!

I paid the EA a visit today, and it *appears* as though they were completely unaware, so for now we'll remove them from the equation.

Our solicitor has advised an amendment to the contract is the best way to go, as per option 2 in my initial post. We feel we have a fairly strong position: evidence points to the fact seller was aware 4-6 weeks before exchange but did not disclose this information, in contravention of the TA6 form:

TA6 said:

It is very important that the answers are accurate. If you give incorrect or incomplete
information to the buyer (on the Property Information Form (TA6) in writing or in
conversation, whether through your estate agent or solicitor or directly to the buyer), the
buyer may be able to make a claim for compensation or refuse to complete the purchase.

If you later become aware of any information which would alter any replies you have given,
you must inform your solicitor immediately. This is as important as giving the right answers
in the first place.

We would of course accept a independent valuation on the house if the appeal goes through, to assess any financial damage. It may be less than estimated - great! In which case we're happy just to take the difference. We can move if the new waste site is terrible without the loss. And if it doesn't go through, we're happy to pay full agreed price. This will be the proposal we'll put to them.

My guess is they will probably reject this proposal, although I do feel it's pretty reasonable. Since we're only going to be in the house for 2-3 years due to work, we could be looking at a potential £40k downside simply because of the action the sellers have taken here. Yes, I know housing markets go up and down, but that affects the whole market not one particular property.

Anyway, if that doesn't fly we'll have a decision to make based on potential upside/downside of pulling out the contract. There is the option to claim damages up to 6 years later, I found out today, which is obviously the less risky option.

I will stop posting updates herewith but I will be back with the outcome in due course!

Edited by gfgdfgergq on Monday 25th September 18:28

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silentbrown said:

I know that councils are pretty risk-averse about refusing planning, because of the costs and likelihoods of appeals. So they're likely to be confident of winning.

At this stage the planning appeal is nothing to do with the council, it's with the planning inspectorate who approximately 40% of the time overrule the local council.

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Busa mav said:

I am sure I read a similar thread on here some months ago where the OP was advised to walk away , this was prior to an exchange.

Unfortunately there is a massive difference prior and post exchange in terms of obligations.

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Completion is scheduled for two weeks (pushed back at both parties discretion). We are still negotiating and have not found a satisfactory resolution yet.

But it is notable that seller's solicitor is proposing various retainer options and therefore we feel they are v worried about us breaching contract and inviting them to sue, which would leave seller in a real pickle.

Will update in two weeks.

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Heres Johnny said:

Don’t they have 10% of the price after you exchanged and you’d need to sue to recover that?

This was our original proposal, that 10% be held in retention pending the planning outcome. They rejected so now we are into higher stakes territory