BUILT ENVIRONMENT LAW COURSEWORK 2

Name: BANCHARAM ADIP Student Number: 08014906

1(a) Remedies against Sid Slippery Sid Slippery has not made the deal in fairness and openness. He has all throughout the process of marketing looked for his own interest by not seeking appropriate legal advice accordingly driven by dishonesty and bad faith. According to Mckendrick (2007, at p.265)...fair dealing requires that the supplier should not, whether deliberately or unconsciously, take advantage of the consumers necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor... The following points highlight the instances where Slippery made statements resulting to misrepresentation: 1. Being the co-owner of a business (high class brothel), Slippery qualify for having substantial experience, skill and superior knowledge of the locality (Esso Petroleum Co. Ltd v Mardon [1976]). Therefore referring to Copley Park as a quiet area at the same time taking into account the age and presumably assessing the mindset of the ladies, would amount to a misrepresentation. 2. Falsification of the HIP makes Slippery guilty of Making or Supplying articles for use in frauds under section 7 of the Fraud Act 2006. Below is an extract of from the Forgery and Counterfeiting Act 1981, s1 (from Simon et al, (2007 at p.112)): A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do some act to his own or another persons prejudice. 3. The change of on street parking for local residents (permitted subject to display of permit) to street parking for all (2 hours maximum stay) was not communicated to the ladies. Slippery was under a duty to disclose such change of circumstance but rather he remained silent. Understanding that this alteration will impact on the usual course of things on the daily life of the ladies; more strangers coming , consecutive noise after 2 hour and no right to priority for parking would probably be not what they expected from this deal. The silence of Slippery undoubtedly amounts to a misrepresentation similar to (With v OFlanagan *1936+). 4. Receipt of rents in excess of 2,000 per calendar month is prima facie a bold lie. From these words it is understood that Slippery was trying to deceive the ladies and give them an intention of what could probably be their rent, hence making them to come up at a decision on this ground. This is clearly a statement of fact as Slippery do have knowledge in its falsity.

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According to Elliott & Quinn (2005, at p.155), The misrepresentation will only be actionable under contract law if it is at least one of the reasons for which the claimant entered into the contract. The points above converge to the fact that Slippery was indeed trying to induce the ladies to buy the property. The strength of the inducements and the emphatically made statements are likely to be regarded as a term of contract. Slippery did breached the Statutory Implied Terms of the Sales of Good Act 1979 where he knew the position of the ladies but failed to exercise honestly and give fit for purpose advice that globally lead to a misrepresentation of the whole marketing scenario. Even though Slippery acted deceitfully, there existed a duty of care from the both ladies to inquire about the property by taking the service of a surveyor. There was an opportunity to discover the truth about the misrepresentation but it is clear enough that the ladies did not bother about this. The buyer could have been more careful, caveat emptor. Paying the sum of 980,000 (not a modest price) without conducting a personal survey will raise a spectre of contributory negligence (Smith v Eric S Bush [1990]). The case of Redgrave v Hurd [1881] with a different point of view; according to Richards (2007, at p.224) However, if the house was of substantial value or comprised commercial property, the House of Lord indicated that the position would have been different and failure to take the opportunity to discover the truth of affairs would have prevented them from taking action. Under the Misrepresentation Act 1967 Section 2(1), there are no bars to stop the ladies for having recourse to rescission. Slippery has no reasonable ground to believe and argue that points 1, 2 & 4 prior to the contract was true at the time of the representation (no innocence defence). Even though the plaintiff had the opportunity to ascertain about the truth, Slippery cannot counter attack on this omission as the law will ensure that one party has not an unfair bargaining position over the other (International Management Group UK Ltd v Simmonds [2003]) as Slippery is first and foremost guilty of fraud. The misrepresentations have been made to draw the mind of the buyers to finally make the purchase which a reasonable man would have eventually done. Furthermore the test of materiality proves that the misrepresentations are strong enough to make the decisive party rely on it. In Down v Chappell [1996] the Court of Appeal confirmed that a misrepresentation is material when its tendency, or its natural and probable result, is to induce the representee to act on the faith of it in the kind of way which they are proved to have in fact acted.

BUILT ENVIRONMENT LAW COURSEWORK 2

Name: BANCHARAM ADIP Student Number: 08014906

1(b) Remedies against Conveyancing Solicitors, Grease, Palm and Swindle According to Butt and Duckworth (2007, at p.225), It is the responsibility of the buyers solicitor to find out as much as possible about the property before allowing his client to enter into a binding contract to buy. At this stage the buyer can freely withdraw from the transaction if he discovers something about the property he does not like... This fact establishes the duty the Conveyancing Solicitor (D) owed to the ladies (P). Below are the key points where they have breached the Solicitors Code of Conduct 2007. 1. D should have made an application for searches at the National Land Information Service (NLIS) to obtain information about the land and property immediately after instruction was given by P; the first thing they ought to do but facts say they did not. 2. Did not cross check the doctored HIP against official certificate of search that complies with the Local Land Charges Acts 1975 nor did they personally verified the register at the Local Authority. Had they performed this, the authenticity of the HIP would have been discovered at a very premature stage. Official copies of title plan and register are to be included in the HIP, as these are the requirement of the Standard Conditions, Standard Commercial Property Conditions and the Protocol. 3. Even thought Slippery mentioned the dwelling was rented, D had the means and power to refute it, as searches dependent upon the location of the property should have been carried out by D. According to Abbey & Richards (2008, at p.128) If a buyer is purchasing a rented or partly-rented property then a search should be made to check on registered rents under the Rent Act 1977. According to Butt and Duckworth (2007, at p.230),... the buyers solicitor will still need to check the results and consider whether any of the Part II enquiries need to be raised. Furthermore Slippery did not engaged the service of a Solicitor which D should have investigated at the very beginning as Sellers Property Information Form (SPIF) should have been completed, both by the Slippery and his Solicitor, which are legal requirement. Unifying the points above, it is evident that D was in a conflict of interest and breached his fiduciary duty, looking for his own gain and that of Slippery rather than his client. This is evident as D did nothing to prevent P from finalising the contract even after finding so many loopholes in the deed. D is therefore liable to P.

BUILT ENVIRONMENT LAW COURSEWORK 2

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1(c) Remedies against Local Authority It is the duty of the Local Authority (LA)...its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with... in respect of section 79(1) of the EPA 1990. The LA had to devise his own method of inspection to maintain the locality within the regulations. A 6ft high For Sale board, in front of the garden and clearly visible to the highway users is definitely something that would catch the attention of many. The advertisement was even published in the local press, a fact if even missed by the LA, they would have come to know it via rumours from public and as a duty of care, and they needed to confirm it. In this case it is clearly a nonfeasance towards the Ladies. Murdoch (2003, at p.326) says, The LPA also has the power to challenge an advertisement display under deemed consent by issuing a discontinuance notice.

2(a) Advice to Mr. K T Placid It is likely that the Copley Park falls in an Area of Special Control. As a member of the public, locals do have a right of involvement. Mr. Placid have a locus standi in this decision as he was a former official in the Local Authority (LA) and lives near to the area affected. Below are the actions that Mr. K T Placid, spokesman of the lobby can bring forward in light of making his voice heard: 1. Definitely he should calm down his lobby of protestors and have recourse to a more diplomatic means as he can be sued for the illegal assembly of crowd amounting to a public nuisance which will not solve the issue. 2. Under the Freedom of Information Act 2000 together with the Environmental Information Regulation 2004 (SI 2004/3391) Placid should send a letter to the Local Authority and request information on the foundation of which the planning has been granted. Blackhall says (2005, at p.379),...any other persons who become aware of a planning proposal, are entitled to see the application file and to make representations to the authority within 21 days of receipt of the notification letter. 3. Analyse the resume supporting the grant of permission against the deposited Local Plan which will give him firm evidence to challenge the decision of the LA on a point of law for the inconsistencies.

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4. It will be obvious from queries that the grant has been the result of maladministration and fraud at the Chair level of the LA, and therefore the complaint must be made to the Local Government Ombudsman. The favourable outcome of the appeal 2(b) Mr. K T Placid found in a comprising position at the brothel If Placid had been indulged any activity of low moral value previously, a good recommendation to him would be to drop the lobbying he is actually maintaining. In this case he will no more be a bona fide spokesman. According to Blackhall (2005, at p.382) such person will not have a legitimate bona fide reason to show an important degree of ownership to the locality and certainly no right to object to a planning permission. If he has been acquiring illicit services from the locality, the court will find no legitimate interest in his petition. He will be classified as a member of the general public and regarded as an officious bystander or an officious busybody just trying to meddle in legal routines. Acting likewise will bring him more harm than good as his reputation will be at stake.

Estate Agents: Murdoch says (2003, at p.55), Exactly how far an estate agent is expected to go, in checking information provided by the vendor or landlord, is not entirely clear. In Hunt v Beasley Drake (1995), a potential purchaser agreed to pay commission for an unsolicited introduction on condition that the agent who made the introduction gave an assurance that the publishes particulars of the property in question were accurate. It was held that, having thus undertaken to check the vendors sale particulars, the agent was liable for failing to do so. However, the judge was of clearly of the opinion that, without such an undertaking the agent would not be expected to carry out this task. The same analogy is to be used in the context here, by saying there was no need for an Energy Performance certificate, and the Estate Agent (E) has assumed the responsibility of giving an important reliable advice (Lennon v Metropolitan Police Commissioner [2004]). Had E not given the advice, he would not be liable for his purchasers. Nevertheless, according to Murdoch (2003, at p.55) E can neither be sued for failing to ascertain the authenticity of the HIP nor verifying the permitted use of the property. The Energy Performance Certificate is a requirement of the HIP. The liability of E is in regard to the loss

BUILT ENVIRONMENT LAW COURSEWORK 2

Name: BANCHARAM ADIP Student Number: 08014906

that this misstatement has brought to them; in short a loss of expectation will be appropriate. Either if the purchasers are able to prove that the property is using more energy compared to a standard property then a difference in value should be allocated to the purchasers or they claim on the basis that the property price in the market would have been less; both of which are direct consequential loss of the wrongdoing. The dilemma here is that even if they statement was not made by E; the purchasers would still have counted on the falsified Energy Performance Certificate from the HIP. On this school of thought the court will only award nominal damages as per the bad bargain rule as the point is not to make the claimant into a better bargaining position.

Conveyancing Solicitors The Solicitors have abused their position. According to the Fraud Act 2006, section 4, they occupied a position of trust (the fiduciary position), they abuse that position by act or omission, acted dishonestly and eventually caused loss to their client; therefore the criteria are met to seek legal damages under this act. The whole problem could have been sighted if they had acted diligently according to their codes. Below are points were the Conveyancing Solicitors, further dug their grave in light of being liable to the purchasers: 1. The change of use of a class C3 dwellinghouses into a multi occupancy dwelling is a process which required planning consent (Town and Country Planning Act 1990 s55 (3) (a)). They failed to make these less usual searches which would have revealed that the dwelling was in fact inappropriate for the use of their client. At this time the buyers could have rescinded from the contract. According to Abbey & Richards (2008, at p.160), The buyers practitioner must ensure that the title is good and marketable and free from encumbrances which may adversely affect the use and enjoyment of the property. 2. The contract has no tangible importance in a legal view, as the HIP was never registered, so the ladies cannot have title of the land. 3. The transaction was made on the condition that the property was multiple occupancy but which is in fact not (considering a case where there has been not abuse of position by local authority). The purchaser will be in a pure economic loss as no physical damage is done to the property. The loss they would encounter is that of a loss of expectation and are: 1. Possible rent income had the dwelling been in reality a permitted multi occupancy

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2. They rent a property they thought to be multiple occupancy but which is not. Even though there is a matter of proximity between the Solicitors and the Purchaser, but the foreseeable loss however is that of loss of expectation, hence the proximity is established by extending the assumption of responsibility of the Solicitor to the Purchaser. Therefore the Solicitors are bound to refund the Purchaser the amount of 980,000 less the price of a single occupancy dwelling. And as a punitive damage I firmly believe that the Solicitors membership to their professional body should be discontinued.

Local Authority

BIBLIOGRAPHY Catherine Elliott and Frances Quinn/ 2005/ Contract Law 5th Edition/ Pearson Longman John Murdoch/ 2003/ Law of Estate Agency 4th Edition/ Estates Gazette Ewan Mckendrick/ 2007/ Contract Law 7th Edition/ Palgrave Macmillan John Cooke/ 2007/ The Law of Tort 8th Edition/ Pearson Longman Robert Abbey & Mark Richards/ 2008/ A Practical Approach to Conveyancing 10 th Edition/ Oxford University Press Paul Butt & Neil Duckworth/ 2007/ Property Law & Practice 2007/2008 /College of Law Publishing Simmon Farrel QC, Nicholas Yeo & Guy Ladenburg/ 2007/ The Fraud Act 2006/ Oxford University Press

BUILT ENVIRONMENT LAW COURSEWORK 2

Name: BANCHARAM ADIP Student Number: 08014906

J Cameron Blackhall/ 2005/ Planning Law & Practice 3rd Edition/ Cavendish PublishingLimited Paul Richards/ 2007/ Law of Contract 8th Edition/ Pearson Longman