In Frank Baum’s original novel “The Wonderful Wizard of Oz” – Dorothy’s ruby slippers were actually described as “silver shoes”.  In the original French version of the Cinderella story, the iconic “glass slippers” were actually made of fur and the classic line “elementary my dear Watson” can not actually be found anywhere in the original Sherlock Holmes stories.  In each case, the subject matter was glamed up by the Hollywood block buster movie makers to enhance public appeal with the result that each of these items have now become immortalised in popular culture. Although covered in thick Artic sheet ice most the year round, “Greenland” was so named by its founder Erik the Red to attract settlers to go there from his former home land of Iceland.

In the process of selling a home, over eager owners or agents are of course also prone to take “licence” in the description of the property’s features with the understandable motive of stimulating interest and driving up the price.  Whilst vague and open ended statements like “Dream Family Home” for a property that turns out to be under a low altitude flight path or next to the Neighbours from Hell are generally inactionable, other representations such as Council approvals for renovations, availability of utility service coverage such as ADSL or mobile phone, in warranty termite treatments, the effectiveness of noise mitigation fittings, Council permissions to work from home, and the like are tangible representations that happen all the time and are a ripe source for conflict.

A false representation about such matters can sometimes give to the Buyer an out under the contract or at least the right to demand financial compensation. Recent changes to case  and statute law in this area have strengthened buyers’ rights but none the less the process remains technical and will almost always involve risky, time consuming and expensive litigation.  The situation for a Buyer becomes even more dire if the Buyer has only discovered that the representation was incorrect after the purchase has been completed.

There are some statutory provisions which mandate protection against the existence of potentially contaminated land  or land containing structurally unsound building works which are less than 6 years old.  Beyond these exceptions however, the drafting of the standard land sales contract combined with general land law principles makes it very difficult to hold the Seller accountable for representations which are not actually recorded on the contract.

By far the best practice is for the Buyer to satisfy themselves about the relevant item before the contract is signed however, where this is not possible, the contract should be clearly marked with a special condition which:

• clearly identifies the statement or assertion of fact which the Buyer is relying upon;
• gives an acknowledgement from the Seller that this is an essential term of the contract;
• gives to the Buyer a right to investigate and satisfy themselves about the item by a set deadline;
• if necessary, obligates the Seller to assist in the task or at least prohibits the Seller from impeding or obstructing the task;
• gives to the Buyer an entitlement to terminate the contract and retrieve all monies paid without deduction if not wholly satisfied about the item in the Buyer’s sole discretion.

Most Solicitors can assist with the drafting of such clauses with no or limited charges.

Jenny Zande is a Solicitor of Zande Law with 20 years experience in practice.  Also on staff are Helen Ireland and Pat Walker who between them have almost 50 years experience in conveyancing matters.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.