Moths and mansions

In a landmark decision earlier this year, the High Court granted rescission and damages in favour of the buyers of a £32.5 million mansion in West London found to be infested with clothes moths. The case, Patarkatsishvili & Anor v Woodward-Fisher, highlights the need to proceed with care when replying to pre-contract enquiries.

In this case, the property had suffered from persistent moth infestation since at least 2018, affecting the natural wool insulation in the walls. Despite multiple treatments by pest control contractors, the issue remained unresolved at the time of sale in May 2019. During the conveyancing process, the seller, an experienced property investor, provided replies to the buyer's standard pre-contract enquiries, to the effect that he was not aware of any "vermin infestation" at the property, that there were no reports relating to any such matters, and that he was not aware of any concealed defects in the property.  

The seller's replies were later held to amount to fraudulent misrepresentations in that they were knowingly false or were made recklessly, in the belief that disclosing such information would likely lead to further enquiries from the buyer. While clothes moths are, alas, frequently encountered in London properties and are perhaps not commonly considered to be "vermin" in the same way as say rats or cockroaches, the sheer number of moths in this case, and their presence in the fabric of the building, was such that the seller was aware that this may amount to an infestation. Similarly, while the seller argued that he had not received copies of any formal reports regarding the moths, whilst perhaps not labeled as such, there was clear evidence of emails, treatment plans, quotations and other documents sufficient to amount to "reports" and these should have been disclosed to the buyer. Finally, the statement that the Seller was "not aware" of any defects that were not apparent from an inspection was untrue. The Seller was aware of the serious nature of the moth infestation, as evidenced by the investigations and treatment undertaken prior to the sale, and as such this should have been disclosed.

This case does not mean that all sellers are now required to disclose the existence of every moth, beetle or mouse that may be encountered, and the established principle of caveat emptor ("buyer beware") remains.  However, sellers should be reminded to give full consideration to all enquiries made and replies given.  While it is open to a seller to decline to provide a reply to a particularly tricky enquiry, a buyer may view the seller's silence with suspicion.  Where a reply is given, such a reply should accurately and truthfully reflect the seller's knowledge. Failure to do can unravel even high-value transactions, such as in this case, even after completion of the purchase.