High Court Judgement: Rosser v Pacifico Ltd

November 8, 2023

Brief Facts of the Case:

Mrs Rosser was buying an investment property in Cardiff from Pacifico Ltd. The house had been converted into two apartments in 2015. The plans provided to Mrs Rosser set out the apartment was a two bedroom and she had received an email from the agents describing it as a two bedroom apartment.

Mrs Rosser bought the property on that basis. One of the bedrooms had a Velux window which was the sole source of light and ventilation. Velux windows are usually permitted if you have the required building regulations, however the apartment was located in a conservation area, which did not allow for windows that overlook highways.

Mrs Rosser received a letter from the council in October 2017 requiring her to remove the Velux window. As the window was the sole source of light and ventilation, the room could not be used as a bedroom.

The owner of Pacifico had completed the standard enquiries for a residential property, Form TA6. Point 4.4 outlines whether the seller is aware of any breaches of planning permission or building regulations. The owner marked that they were not aware of any breaches.

Mrs Rosser’s argument was that the apartment was no longer a two bed and claimed damages for misrepresentation.

The Claim:

The claim was brought under the Misrepresentation Act 1967, which sets out that where a person has entered into a contract on the basis of misrepresentation and as a result suffered loss, the person making the misrepresentation would be liable to damages. Unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true. 

A claim under the Misrepresentation Act 1967 is one of tort and not contract, so it results in different damages.

The Judgment:

Pacifico argued that the burden for discovering the position relating to the Velux windows was being unfairly placed on them. They also argued that Mrs Rosser had employed an experienced conveyancer who should have investigated the planning breaches more thoroughly.

The judge determined that it was not the conveyancers responsibility, and that the purchaser is entitled to rely on a vendor’s answers.

The judge determined that Pacifico’s answer implied reasonable steps has been taken to provide valid information, and there was a representation that there was no breach of the planning permission and building regulations. Pacifico had no reasonable grounds for believing that the relevant permissions had been obtained for the Velux bedroom window.

Pacifico was found liable and damages were awarded of £30,000.00 being the difference between a one bedroom apartment and two bedroom apartment in the same location. Damages also awarded for the increased SDLT amount paid and the removal the Velux window.

Importance of this case:

This case is not new but serves as a good reminder to be careful to provide accurate answers to information forms and replies to enquiries. Common responses of ‘not insofar as we are aware’ or ‘no’ are still representations, which are given on the basis that reasonable steps have been taken to find out the answer. Conveyancers must ensure that reasonable steps are taken to validate information. It is good practice on enquiries to get buyer’s solicitors to rely on their own searches and inspections and if required, make it clear in your response that no investigations have been made. Practitioners should also review previous files, if you or your firm have worked on the property in the past.

James Sawyer
Trainee Solicitor – Development Department

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