4th November 2014

Nightmare on Elm Street

If there’s something strange in your neighbourhood, who ya gonna call?” Peter, Ray, Egon? What about your solicitor? Upon purchasing a property, it would be unsettling to discover an unexpected house guest at your new abode. Some buyers may consider it a “treat” and invite the presenter of “Most Haunted” to visit their home, creating a tourist attraction, and maximising financial return from human curiosity. I imagine that the majority of buyers however would want Casper to leave immediately, however friendly he may be.

Does the buyer have any comeback against the seller of the property? One may argue that “vacant possession” has not been granted. However, a seller has limited control over the presence of a ghost, in the same manner as they have limited control over an unwanted house burglar.

The onus is upon a buyer to satisfy themselves on the heritable property that they are about to purchase. Lawyers use the term “caveat emptor”, meaning“buyer beware”. During a property transaction this implied legal position is varied according to the terms of the contract (“the missives”) entered into between the parties. It is standard to include a condition that the seller will warrant that, so far as they are aware, there are no structural issues with the condition of the property or timber problems such as wet rot, damp, or infestation. Where problems are disclosed, either by the seller in the Property Questionnaire or indeed by the surveyor in the Home Report, the solicitor will recommend that the buyer instructs a specialist contractor to inspect the property and provide advice on any issues noted and the estimated costs of repair. There is no requirement within a standard contract to disclose the presence of paranormal activity and I have yet to see an additional clause added to a contract by a purchasing agent. However, one of my colleagues has read a clause within a Home Report highlighting that there was local knowledge that the property had a history of things that go bump in the night.

Under the Consumer Protection from Unfair Trading Regulations 2008 there is a duty of care upon estate agents to advise potential purchasers of any material information that would affect an average person’s decision to purchase a property. Of course a seller could argue that they were not aware of the spooky presence and that they do not have the “Sixth Sense” of the buyer and therefore it may be difficult to prove otherwise.

The responsibility remains with the buyer to ask the pertinent question of the seller at the time of offering for the property. In the same light, as asking if any of the neighbours partake in a seasonal National Lampoon’s Christmas Light exhibition on the exterior of their house.

Happy house haunting hunting!

Joanne Grimmond
Partner – Property



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