Tips: Completing the Protocol Forms
Ultimately, a seller can end up in court if they don’t declare certain information when selling their home that may influence a buyer’s decision to proceed with the purchase or even limit their ability to renegotiate on price or the terms of the transaction. There might be plane noise from overhead aircraft, disagreements may have occurred with neighbours or cracks have appeared in some of the walls. Should you declare these issues? The short answer is ‘yes’. Sellers should be upfront about any issues affecting the property. It is critical that that the seller completes all conveyancing forms provided to them truthfully, accurately and comprehensively as possible.
The legal principle of caveat emptor means ‘buyer beware’ which places the buyer under an obligation to discover any physical defects in the property they are buying and to check the physical condition of the property before committing to purchase the property. This principle only goes so far when it comes to selling your home. For example, you must tell your buyer about latent defects in the title of the property, if there is no way they can reasonably find them out before exchange of contracts. An example would be an unregistered easement, such as rights of way for others that does not appear on the title of the property. In addition, the conveyancing process requires the seller to fill in various forms (Protocol Forms) which gives the buyer a whole raft of information about the property that they would otherwise be unable to find out through survey or the standard searches.
The Protocol Forms comprise a set of documents for completion by the seller, prescribed by the Law Society, the professional association representing and overseeing solicitors in England and Wales. These include the ‘Property Information Form’ (TA6), the ‘Leasehold Information Form’ (TA7) (leasehold properties only) and the ‘Fittings and Contents Form’ (TA10), which are periodically updated. The Protocol Forms comprise part of the pre-contract documents reviewed by a buyer and their legal advisors and are legally binding which means that a buyer can sue a seller if they discover incorrect, untruthful or misleading information in the forms or if something has been deliberately concealed.
The Property Information Form is a comprehensive document covering a wide range of matters about the property including boundaries, disputes, planning, insurance, rights, guarantees, environmental matters, parking arrangements and services to the property.
The Fittings and Contents Form indicates what is included in the sale of the property (or perhaps offered for sale) and is divided to enable completion on a room-by-room basis.
The Leasehold Information Form includes specific enquiries relating to leasehold properties including information about ground rent, service charges, management company details and shared responsibilities. The Law Society has specimen Protocol Forms on its website that you can download to give you an idea of the questions you will be asked, along with some helpful explanatory notes to help you understand the legal reasoning behind some of the questions. Most of the questions are straight forward although some of your answers might be quite detailed. If you give incorrect or incomplete information to a buyer, the buyer may make a claim against you for compensation or even refuse to complete the purchase of the property.
Key tips for sellers tasked with completion of the Protocol Forms:
- Read the ‘instructions to the seller’ at the beginning of the forms.
- Answer the questions based upon information known to you – be honest, upfront and provide accurate answers.
- Do not include information you know to be incorrect. Do not exclude information that you know should be included and may influence a buyer’s decision making process or bargaining position.
- If you genuinely don’t know the answer to a question you can state this but don’t use it as a blanket answer to avoid something.
- Provide all supporting evidence that you have in relation to the property, such as any original deeds, planning permission and building regulations documents together with any guarantees.
- If something happens that means your initial replies are no longer accurate/correct, notify your legal advisor immediately.
What happens once the Protocol Forms are sent to the buyer’s solicitors? Usually, the buyer’s solicitor will raise further enquiries arising from the same. The more accurately the forms are initially completed by the seller the fewer enquiries are likely to be raised relating to errors and omissions in completion of the forms, thereby reducing unnecessary delays in the sale transaction progressing.
If sellers do not complete the Protocol Forms accurately, the ultimate redress for a buyer is a claim in misrepresentation, depending on what the seller said about the position. Misrepresentation is a false statement of fact which induces a party to enter into a contract, causing a financial loss. The buyer may be entitled to claim damages from the seller. In some cases, the buyer will be entitled to ‘rescind’ the contract (entitled to their money back and return of the property to the seller), although more usually the court awards damages.