Should you disclose a murder that has taken place at a property on which you are instructed?
So far, there has been no case law under the duties of disclosure that make an agent liable for prosecution under CPR.
However, there was a particularly unpleasant murder at a house, resulting in a case which went to the Court of Appeal which tested whether the sellers – who knew about it – should have disclosed it.
The murder was horrific, involving the death of a 13-year-old girl at the hands of a previous owner. Her body was first buried in the garden and then dismembered, with some body parts never recovered.
The case preceded CPR by four years and did not involve any agents – presumably because under the old Property Misdescriptions Act agents were liable for giving the correct measurements of rooms rather than making disclosures.
Instead, the case looked at the duty of vendors to answer questions truthfully on the conveyancing forms.
The case is outlined in today’s blog section. Two leading experts who we asked offered differing views as to whether, as a precedent, it is still relevant as case law today or whether it has been superseded by statute.
However, it is an interesting case both in terms of legalities and consciences.
What would you, as an agent, do about it, were you handling the sale or letting of this property today?
%20-%20IMAGE%20Client%20Accounting%20%E2%80%93%20what%20are%20your%20options.jpg)
.png)
Comments
For those that didn't read these VERY relevant articles previously...
http://www.estateagenttoday.co.uk/news_features/Agents-must-err-on-side-of-caution-with-CPR-warns-Hamer
http://www.estateagenttoday.co.uk/news_features/Ombudsman-When-and-what-agents-should-disclose
PMA x infinity, methinks...
Case Law MUST be established or no-one is safe from what is basically and OPINION over what is or isn't 'reasonable'.
@ Master of Common Sense,
I think we are splitting hairs here, it is apparent from the wording of the guidelines that they are talking about a 'prospective buyer' and their viewing decision based on the information we as agents make available to them.
I do, however agree that a common sense approach is required, and we as agents cannot be expected to know every minute detail about a property, but my understanding is that if we are aware, or if something is self apparent, that may affect a 'prospective buyer's decision, we need to make 'prospective buyers' aware.
@ Hound on 2013-11-01 15:36:16
It is the actual 'guidelines' issued by OFT that I find a nonsense. Also, a Viewer is not yet a Buyer. In this business one cannot presume. In your experience how many people buy after seeing the actual property - warts and all - AFTER being advised at the point of offer or by their conveyancer?
I'm guessing that 'master of common sense' has not actually read the OFT guidelines on CPR, which state clearly that a 'transactional decision' could be a 'buyers decision to view a property' and 'whether your act or omission is likely to have an impact on the average consumer'
A few years back, I sold for a developer client, a site of three properties adjoining a cemetery, the two properties at the front of the development sold easily, however, the one to the rear, where the view from the property was of the graves of the victims of a high profile murder of two young girls, was a completely different matter. A large number of people declined to view as soon as they knew where the property was situated.
The property did eventually sell, but the number of people that declined to view does make it clear that the proximity of the graves did affect that decision for the 'average' buyer.
What a nonsense all this is.
Agents deal with actual PROPERTY and, if known, the physical faults which may affect the PROPERTY. These other sorts of 'things' should be dealt with by solicitors, as with neighbor or boundary disputes etc. which must be declared if known to the vendors.
CPRs are "policed" by the OFT, they have only recently been given these power, when people like Trevor spout on like they are an authority its dangerous for those that think it is.
They have yet to flex their muscle so its not clear, but its clear the rules of the game have changed, Agents have to disclose, but disclose what? Open to interpretation till case law settles it. Don’t be that case!
PMA was overseen by Trading Standards. PMA wasn't just about measurements being correct so the article is wrong.
My understanding is that under PMA or now CPR's that officials would ask - 'If the average Joe knew of the event and it could put them off, then average Joe would need to know'
I asked Trading Standards years ago this question when we had a medieval hall for sale. The owner said they had a ghost. As such do we mention or not under PMA?
TS came back and asked why are the owners moving?
The reason was to move from the Romney Marsh to London for the owners IT consultancy work.
TS said that if the ''ghost'' that the owners thought there wasnt the reason, then it needn't be mentioned. Yet if to them it was a real problem, then buyers should know their reason for moving.
We added a disclaimer about the owners felt they had a friendly presence in the property - for Joe Public to make their own minds up.
Equally, with the article, finding out a child had been abused and killed there should maybe for the length of an average lifetime be made aware to potential buyers so they have a choice to decide. Obviously after 60-70-80 years on, things have long moved on.
The agent can only know so much. Part of the respobsibilty falls on the buyer to ask certain questions. If the agent can't answer then the q is forward to the vendor.
However, if you are deliberately hiding information, then it's a con.
Don’t worry they will develop case law and target the big boys as examples, so watch out Corporates, but then the Independents will get slated in the same way!
Stupid law, but that’s what it is, the industry will have to wise up.
As someone who advises agents on compliance matters I am asked this question regularly. The problem, along with a number of others, is something that the OFT could and should have included in their CPR Guidance issued last year, but didn’t. (There’s another debate)
You could therefore be forgiven for assuming that as they didn’t include it then it isn’t material; do so at your peril. The Property Ombudsman takes the view that it is material and should be disclosed in ‘all’ cases at the earliest opportunity. My advice is that ‘generally’ it is material and should be disclosed, but there may be exceptions, which we could discuss.
How you disclose is again something the OFT didn’t deal with in their guidance either, but again my advice would be it doesn’t matter how you disclose, providing you are confident that you can confirm your disclosure, if it goes pear shaped later.
Margaret Annabel
The "new" regime to which you refer has been on the statute book since 2008, so all viewers would need to have been informed of such occurrence.
The PMA was repealed on 1st October but that didn't alter anything.
IMO, It is not relevant if someone has been murdered in the house. How long ago do you have to disclose? If the house is 500 yrs old do you have to research it's history? Ridiculous! Happy Halloween!
Nanny state. Discussing murders, suicides etc is tittle tattle, private and none of our business nor that of buyers IMHO.
Sensitive people will pick up the vibes, if there is such a thing. Perhaps there is... part of a converted inn I was selling years ago sent vibes to several viewers that it had a hanging outside a window over a carriage arch. One man rushed out during the viewing saying he coudl barely breathe!
But if CPR means we must tell people this kind of thing before they book a viewing, we need to either put it in the details (how insensitive is that?) or try to ensure that all staff discuss it before taking a booking .... how likely is it that someone will forget? This is utter nonsense yet we may have to perfomr or risk the consequences.
CLEAR rules would be helpful
whether we were to tell them or not, no doubt the agent would get blamed for the murder.
Nice comment PBK but you fail to notice that it was the seller who did not disclose the information and did not involve any agents.
Are you saying that all sellers are scum?
We did have a case of a property being sold as the previous owner had committed suicide there. We took the view that we should not tell every viewer, but where serious interest was being shown, then we should, and that was the case with the eventual buyer. We felt that it would have been wrong not to let the buyer know, as no doubt on the day of moving in, the neighbours would have popped round to tell them!
Under the new regime, however, we presume we will have to let anyone know as that could affect their decision as to whether to view or not. Some definite answer on scenarios such as this would be appreciated, but no doubt it will be the usual situation of having to wait for it to be tested in law.
Should know by now, estate agents cannot win - you say something and you are wrong, you don't say something and you are wrong!