As a matter of law a seller is not obliged to provide any information about a property it is selling. This means that if a buyer wants any information it must ask for it as part of due diligence it conducts on the property.

In broad terms if the information provided by a seller is dishonest and a buyer is induced to enter the transaction because of it the seller may be susceptible to a claim for misrepresentation.

The issues that can arise where a party asserts there has been misrepresentation were brought sharply into focus in the recent decision of Hunyak v William Woodward-Fisher [2025] EWHC 265 (Ch) which received a huge amount of media attention.

A seller of prime London real estate was held to have fraudulently misrepresented the position in relation to a moth infestation. In response to PEs that asked about (1) the presence of vermin infestation (2) whether reports had been obtained in relation to any infestation and (3) whether there was any resulting damage to the property the seller replied:

"The Seller is not aware of any such matters affecting the property since the renovation and extension works were undertaken and completed but has not had the property surveyed for such matters so no warranty can be given in this regard and the buyer must rely on the results of its own survey, inspection and professional advice.”

In fact, the seller had investigated the cause of a substantial number of moths at the property and various pest control companies had concluded there was a significant moth infestation and proposed a variety of solutions. This information was not disclosed to the buyer who discovered it after the transaction had completed.

The court held the seller's replies to PE's amounted to a fraudulent misrepresentation and allowed the buyer to rescind the contract and transfer.

Remedy

Once the court concluded the seller had fraudulently misrepresented the position it went to great lengths to put the partes into a position as if the contract and transfer had not existed. It achieved this by ordering the property be transferred back to the seller subject to a lien in favour of the buyer being the purchase monies and damages payable once the remediation work had been undertaken and the house was sold. Recission arose, the court held, despite a delay of seven months and even though it wasn't immediately possible to secure restitution on both sides because the defendant didn't have the money to buy back the £32m property. The court was of the view there was no reason "practical justice cannot be done by an order for rescission."

Postscript

Does the decision mean that every seller of a property must disclose some moths or run the risk of a claim of misrepresentation? The court said not. What a seller must do is provide "honest answers to pre-contract enquiries, if they answer them at all". Any suggestion the decision would cause a general conveyancing problem was "simply wrong".

Although approving pre-drafted replies to enquires might seem like a paper exercise care should be taken to ensure the replies reflect the honest belief of the seller and, if an honest answer cannot be given, the PE should remain unanswered (with the attendant risk that this will flag an issue to the buyer).