Do sellers have to disclose latent defects to homebuyers?

Photo of author
Written By Berry Mathew

Buying a house is a big investment, and selling a house can be just as stressful and financially significant. It’s important for both buyers and sellers to know what their obligations are when confirming the conditions of a property for sale.

Without having all the necessary details, the buyer can’t make an informed decision, and the seller puts themselves at risk of litigation for representing their property fraudulently – even if they genuinely didn’t intend to. 

So, when it comes to problems with a property for sale, what is the seller expected to disclose? What is it the buyer’s responsibility to enquire about? Here’s what both buyers and sellers should know before listing a property or committing to a sale.

Caveat emptor (buyer beware)

For years, the legal principle of caveat emptor – buyer beware – meant that it was the responsibility of buyers to confirm that the condition of a property met their requirements before committing to the purchase. Carrying out due diligence to uncover any issues was therefore up to the buyer, as the seller was not legally obligated to reveal information about property defects.

However, selling property has fallen under the Consumer Protection Against Unfair Trading Regulations since 2013. This makes it the seller’s responsibility to disclose any information that might affect the buyer’s decision to proceed with their purchase. If the seller omits something important – knowingly or not – they could be prosecuted for misrepresentation.

Sellers must provide all the relevant details they have about the property, and answer the buyer’s questions honestly. This is usually done through the TA6 Property Information Form.

Click here – Can You Sue For Medical Malpractice Without An Attorney?

Property Information Form (TA6)

It isn’t compulsory to complete the TA6 form, but most conveyancing solicitors will expect you to do this to make things easier. Even if you and your solicitor decide not to, the buyer and their solicitor will still be asking questions and expecting honest answers, so filling out the form simplifies the process for both sides.

The form covers a range of categories regarding the property’s construction, boundaries, and Council Tax bracket, plus any issues with planning, the environment, or neighbours. These categories include (but are not limited to):

  • Changes made to the property (alterations and extensions)
  • Disputes or complaints (made by the seller or about them)
  • Areas shared with neighbours (formally or informally agreed)
  • Occupier information (details of whoever lives at the property)
  • Known structural issues (e.g. subsidence, damp, Japanese knotweed)
  • Known material defects (e.g. faulty fixtures or fittings)
  • Environmental concerns (e.g. flooding risk, if applicable)
  • Property boundaries (boundary features, changing boundary lines)
  • Utilities and other services (electricity, heating, drainage, sewage)
  • Council Tax and building insurance costs
  • Any planning or development restrictions on the property or land
  • Known neighbourhood problems (e.g. resident disputes or burglaries)
  • Notices of proposed development and construction nearby

While the form may not specifically ask about structural problems like subsidence and damp, it does require the seller to provide details of any insurance claims or guarantees for repair work like damp-proofing or underpinning. This could also include written agreements resolving disputes between neighbours (not just those living adjacent to you).

So, even if there was a problem with the property that the seller already fixed, they’ll still be obliged to disclose it to the buyer and provide the relevant paperwork. Concealing information that later comes to light is a big red flag for the buyer, who might pull out of the sale or request a lower price – and if it’s already been completed, they could make a legal claim against the seller.

Click here – Truck accidents vs. Car accidents in OC: Things to know

What sellers should disclose

If you’re planning on selling your property, you might be wondering whether you can omit negative information and only disclose positive details. However, this still counts as misrepresentation, and buyers will be put off if you only provide vague answers to their enquiries about potential issues.

When you complete the TA6 form, you’re legally obligated to provide all known information as requested – both positive and negative. Even if you think the negative details will harm your chances of selling for a good price, it’s not worth the financial trouble of legal repercussions for lying.

You may not have to specify details of minor defects, such as cosmetic issues that can be seen on a simple inspection of the property, but you cannot deliberately attempt to conceal defects that you’re aware of. For example, painting over leaks and not disclosing a problem with the plumbing or drainage wouldn’t be worth it, as the buyer would discover it eventually and could take you to court.

When it comes to latent defects, it’s possible that you as the seller may not be aware of a deeper hidden defect that hasn’t manifested yet. However, if you’re aware of problems such as cracking walls or sloping floors, for example – which could be signs of subsidence caused by a latent structural defect – then you must disclose this, even if it means you have to investigate and pay for repairs.

In the end, honesty is always the best policy. As a seller, you should discuss all disclosure obligations with your solicitor and estate agent to prevent possible accusations of fraud in the future. 

What buyers should do

Most sellers won’t set out to be deceptive, and may even go to the trouble of commissioning in-depth surveys themselves so that they can disclose the results and prove that their property is in good condition. However, if no recent surveys have been undertaken, there’s always the possibility of latent defects having manifested in the meantime.

This is why it’s a good idea to fall back on the ‘buyer beware’ adage and request as many inspection reports from the seller as possible. If none are available, or no inspections have been carried out regarding a specific area of concern, the buyer can commission a chartered surveyor to inspect the property thoroughly on their behalf. An honest seller should allow this.

If any undisclosed defects are found, the buyer can request that the seller carry out repairs before the sale goes ahead, or that they reduce the selling price to account for the damage and the cost to repair it for the buyer. If the seller doesn’t agree to either, the buyer may decide to withdraw their purchase offer.

Of course, if undisclosed defects are discovered after the property sale has already gone through, it’s a different story. Depending on the severity of the defect, the buyer could make a legal claim against the seller for the damages resulting from their failure to disclose it. 

The buyer may choose to sue under the Misrepresentation Act, which puts the burden of proof on the seller rather than the buyer. The seller then has to prove that they did not lie and were not aware of the defect in any capacity – but if they’re found guilty of fraud or negligence, the legal costs can run into not just the thousands, but hundreds of thousands of pounds.

How latent defects insurance can help

Court cases are costly endeavours for both sides, in terms of time and stress on top of finances. The simplest way to avoid this is for both sellers and buyers to be as upfront and honest as possible when sharing information about the property.

Something that can help to build trust between buyers and sellers is latent defects insurance. Also known as a building warranty, this cover is typically taken out before construction starts, and offers financial protection against latent structural defects for up to 10–15 years. 

While it only covers structural problems, these are the more serious issues that could threaten the stability of the building, and put the buyer’s investment in the property at risk if they have to pay for repairs. Sellers aren’t always aware of latent structural defects, but if they have a latent defects insurance policy in place and are selling within the cover term, this will transfer to the buyer, giving them and their mortgage lender some peace of mind.

If you’re buying a property built within the last 10–15 years, it’s always worth asking about latent defects warranties – as you’ll have reassurance that the property was thoroughly inspected during construction and any structural defects resulting from faulty work or materials will be covered. 

Disclaimer: Please be aware that this article does not constitute professional legal advice. You should contact a solicitor to discuss your rights and obligations during a property transaction.