‘Not to the Vendor’s Knowledge’ – an always appropriate catch-all?

The recent judgment in Patarkatsishivili and another (the ‘Purchasers’) v Woodward-Fisher (the ‘Vendor’) [2025] EWHC 265 (Ch) serves as a cautionary tale for dishonest sellers.

Facts

The Vendor refurbished his London home including installing wool-based insulation but later discovered an infestation of clothes moths. Several attempts by a pest control company to remove the infestation failed and a report produced by the company stated that the insulation would have to be completely replaced to remove the infestation. By this stage, the house had been placed on the market and was soon agreed for sale to the Purchasers for £32,500,000.

In response to the pre-contract enquiry “Has the property ever been affected by…vermin infestation”, the Vendor replied that he was “not aware of any such matters …but has not had the property surveyed for such matters … and the buyer must rely on the results of its own survey, inspection and professional advice”. The sale completed, the Purchasers subsequently discovered the moth infestation and launched an action for misrepresentation.

Issues

The Court considered several key points: (1) Was the reply (and other related replies) false? (2) Did the Vendor know they were false? (3) Did the Purchasers rely on the replies when entering the contract for sale? (4) What was the appropriate remedy?

Decision

• The Court had to ask whether moths are ‘vermin’. Relying on both the ordinary meaning of vermin, which can include insects, and the purpose of the enquiry being to ascertain whether there is an infestation that would cause damage to the property, the Court deemed that the moths constituted a ‘vermin infestation’. The reply was therefore a misrepresentation. Further replies that requested any reports relating to defects (including infestation) be disclosed and any defects not apparent on inspection be disclosed, were also found to have been answered falsely.
• The replies had been filled out by the Vendor’s solicitor, but had been approved by the Vendor. The Court held that the Vendor knowingly falsely replied in respect of the report and the non-apparent defects and had recklessly replied in respect of the moths (he considered that moths may not be vermin, but had not given the full picture to his solicitor).
• Although the Purchasers’ solicitor read and reported on the replies to their clients, they had not highlighted the specific replies at issue in the case as remarkable. The Court concluded that the ‘substance’ of the replies had been effectively communicated to the Purchasers who relied on the fact there were ‘no red flags’ when deciding to buy. Also relevant was the fact that the replies had been answered generally and negatively (i.e., ‘vendor has no knowledge’); it was acceptable for the solicitor to conclude that there was ‘nothing adverse’ in the replies.
• The usual remedy in misrepresentation cases is to rescind the contract, putting the parties back into the position they were in before they signed it. The difficulty here was the immediate inability of the Vendor to repay the hefty purchase price. To circumvent the issue, the Court secured the sum by way of an equitable charge in favour of the Purchasers which would allow time for the property to be handed back to the Vendor, its issues rectified and then sold to repay the purchase price.

Implications

The often-used reply that the vendor is ‘unaware of any issues and the purchaser should rely on their own survey’ is not a get-out-of-jail-free card. A vendor cannot hide behind their solicitor; they should paint a full picture of what they know about the property when replying to enquiries. A purchaser should be able to rely on the vendor being honest and open in their replies and should not have to go to great lengths to verify those replies. In cases of dispute, a Court will scrutinise the wording of replies and in this case was willing to widely interpret the enquiry which prevented the Vendor from escaping liability on a technicality. The Court was similarly flexible when determining the appropriate remedy.

If you would like any further information or advice on these issues, please contact Dylan Toner from the Real Estate team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.