Misleading Advertising If misrepresentation made before the tenancy
Essentially the Property Misdescriptions Act makes it an offence to make false or misleading statements about specified aspects of property (including land) offered for sale or rent by those in an estate agency or property development business.
There is no general requirement to disclose information but where information is given, it must be accurate and must not be misleading.
So, what is a false or misleading statement? A false statement is one which is false to a material degree. For example, what may be a material discrepancy between quoted and actual room sizes may be one of little, if any consequence if it relates to the dimensions of a garden which is obviously much larger, a few centimetres here or there is not material in a garden but could be contstrued as such in a bathroom for example.
Property Misdescriptions Act
This Act states that such a misleading statement will be a criminal offence and it means that any contract for the property concerned will not necessarily be void but can be voidable so long as you do it right.
This Act will not give you the right to end the tenancy agreement because a landlord’s or an agents advertisment was misleading, as the Act is enforced by local authority trading standards officers. If you decide that any such advertisment was misleading you should contact your local authority standards office to make a formal complaint.
Sometimes statements made before a contract are described as representations and if they are very serious, they may form the basis of an argument to end the contract.
Basically for any statement to be a misrepresentation under the Act it must be a statement of fact, some sort of active statement and a material inducement for you to complete the contract, in that without such a statement you may not have signed it.
E.g If a property is described as a having metal door or double glazing. This is a statement of fact – the house has double glazing – period. If it subsequently was found not to have douboe glazing – thats a misrepresentation of the facts about the property.
If the property is described as a cozy nice apartment, it will be not statement of fact but simply advertising waffle.
If your landlord or agent has made misleading statements your tenancy contract will not be immediately void but could be voidable. Here are 3 ways.
Affirmation. You still want to continue this tenancy contract and stay on in the property, so you will not able to use misrepresentation as a reason to move out later. Also, you can claim compensation if the property is much worse than was promised.
Avoidance. If you discovered the misrepresentation before moving in, you can refuse to go through with tenancy and you are entitled you a full refund of your fees paid.
Rescission. If you had very recently moved into the property but discovered the misrepresentation you can move out. Be careful if you do this as you need to be absolutely sure of your facts and have written evidence of any misrepresenttation. After, or preferably before you have moved out you need to inform your landlord or property agent what and why you are moving out. If you affirm the tenancy contract by making a next payment for rent or stay in the property for some time you will lost your right to rescission.
Damages and compensation.
You have a right to claim compensation if you have suffered loss as a result of any misrepresentation.
If you have a case for Avoidance or Rescission, the damages that you would be claim will usually include incured expenses for finding another place to live, and your removal cost in the case of Rescission.
Also as mentioned, you will be entitled to the return of any deposit or money that you have paid in advance but you cannot decide that you are entitled to damages and deduct them from the rent under your right of set-off.
If you are unable to reach agreement with your landlord regarding compensation, your only alternative to obtain a court order.