Date Published 29 October 2012

In a case that will resonate with the industry, three agents are to face a retrial on a charge that they breached the Property Misdescription Act over the size of a garden.

Had the garden simply been described as ‘large', there would have been no case against them.

As it was, the garden was described in particulars signed off by the vendor as being three-quarters of an acre, with the caveats ‘approximately' and ‘stm' (subject to measurement) used. However, the garden was actually 0.4 of an acre when the purchasers measured it some time later and reported the firm to Trading Standards.

It will be the third time that Charles Bycroft, his wife Julie and son Daniel, partners in Bycroft & Co, at Great Yarmouth, Norfolk, have had to face a court.

The first time, the matter was thrown out when a district judge at a magistrates court ruled that ‘approximately' and ‘stm' were effective disclaimers.

But Norfolk Trading Standards decided to take the matter further and last week the High Court ruled that the case must be tried again.

The High Court also ordered the Bycrofts to pay £6,500 in legal costs, and told them they could still argue due diligence when the case returns to magistrates court. The High Court accepted there was no intention to mislead.

After the High Court ruling, Catherin Girvan of Norfolk Trading Standards said: `This case is a warning to estate agents from the court to take care when giving specific measurements, or even general measurements, in relation to anything, but particularly land.

`They are not obliged to give measurements, and in this particular case, a perfectly good description would have been ‘large garden'.`

Charles Bycroft spoke to EAT after the High Court hearing.

He said: `The original case did not actually involve myself, wife or son, but a member of staff – a very experienced agent and long-standing employee.

`He went to look at a house belonging to a retired dentist who insisted he had bought the place 20 years ago with a garden of three-quarters of an acre, and also insisted that was what we said in our particulars.

`Our employee had his doubts and should have done what I would have done and measured it. But the seller was insistent, and therefore, when the particulars were drawn up, on the two occasions that the garden was mentioned, on both times the wording ‘approximately' and ‘stm' were used.

`We never release particulars until they are signed off. The vendor on this occasion made 16 amendments but left the description of the garden as it was, and then signed off the details.

`The buyer bought the property because they wanted a large garden, and that is what they got. They bought the property having seen the boundaries.

`Fifteen months later, they had a builder in and told him the garden was three-quarters of an acre. He said he doubted it, and the garden was measured and found to be 0.4 of an acre – a big difference.

`The buyers went off to Trading Standards, possibly because they thought they had suffered a loss. However, that was not in question, as the mortgage valuation had agreed the price they paid.`

Mr Bycroft said he had fully co-operated with the Trading Standards inquiry, which ended in the magistrates court where the district judge found in favour of the agents.

However, in the High Court last week, the legal arguments centred around whether ‘approximately' and ‘stm' were sufficient disclaimers.

Miles Bennett, appearing for Norfolk Trading Standards, argued that ‘approximately' was not a disclaimer and that the term ‘stm' was not explained in the sales brochure.

However, said Mr Bycroft, the judges, Mr Justice Sing and Lord Justice Elias, accepted that the term would have been understood by a man in the street. The court accepted that there had been no intention to deceive, but the statement about the size of the garden was ‘plainly false' and the disclaimers were no defence. The court ruled that the district judge had made an error.

Mr Bycroft, after the case, said: `We were told that had we said in the particulars, ‘We are told by the seller that the garden is three-quarters of an acre but we have been unable to verify this', that would have been sufficient.`

Mr Bycroft is a chartered surveyor who has been in business for 45 years, and his single-office firm displays both RICS and NAEA logos.

He says he does not know how he will plead when the case is re-heard. While the defence of due diligence is still available, he is wary of incurring yet more costs: on top of Norfolk Trading Standard's bill of £6,500 there will also be his own costs, which will at least double the bill.

`It is accepted that there was no attempt to deceive or mislead, but we should have measured the garden,` he says. `It may be better – and cheaper – for me to put my hand up and plead guilty to a technical breach of the PMA.

`I really just want the case over. It started in 2009, but we heard nothing for 15 months, and then it took another year to get to court. We now have to go back to magistrates court, but have no date.`

He also queries why his son has been joined in the action, since – unlike himself and his wife – he is an associate and not an equity partner in the business.

And what of the member of staff who handled the original instruction? He is still with the firm, and is now an associate partner.

The Property Misdescriptions Act is being repealed, and will be replaced by Consumer Protection Regulations.