Norfolk County Trading Standards prosecuted estate agents Charles and Julie Bycroft under the Property Misdescriptions Act 1991 over property particulars describing a 0.4 acre garden as “approximately 0.75 acre sts.” Did these qualifiers avoid a conviction? Emma Harrington reports.
Topic: Misleading advertising
Who: Norfolk County Trading Standards Service vs. Charles Bycroft, Julie Bycroft and Daniel Bycroft (all trading as Charles Bycroft & Co)
When: October 2012
Law as stated at: 25 October 2012
The Divisional Court (High Court) has recently adjudicated on a misleading statement included in property particulars (Norfolk County Trading Standards Service v Bycroft (2012) (unreported)).
The particulars described the property's garden as being "approximately 0.75 acre (sts)" when it was in fact around 0.4 acres in size. The reference to "sts" meant "subject to survey" (although no such explanation was provided in the particulars) and the particulars contained a disclaimer which stated that "these particulars are believed to be correct, however their accuracy cannot be guaranteed and they do not form part of any contract".
Should such language alert to buyers that they should not take such descriptions at face value and that they should carry out their own checks and searches? Perhaps so on the basis of the district judge's opinion that the use of the words "approximately" and "(sts)", together with the disclaimer wording, constituted a valid disclaimer. However, the issue was referred to the High Court which gave a different view.
The High Court considered that the word "approximately" was not appropriate explanatory language for the description given the difference between 0.75 and 0.4 acres. Furthermore, the view was taken that neither the reference to "sts" (if indeed understood by any consumers) nor the disclaimer wording served to contradict the statement of the garden size being 0.75 acres. It was considered that consumers would understand an estate agent's statement of property size to be an expert's estimation, not an entirely false assertion.
Therefore in the present case, the statement of garden size in the property particulars was contrary to section 1 of the Property Misdescriptions Act 1991 in being a "false or misleading statement".
Why this matters:
This case highlights the need for companies to take care when making claims to consumers about their products or services. Businesses dealing with consumers must be sure they make statements which are true and which they are able to substantiate. As the present case has shown, exaggeration could lead to trouble and it would be better to use general descriptions (such as "spacious" or "large") rather than to volunteer specific details which have not been verified.
Advertisers should also think carefully about whether the wording in their disclaimers is appropriate. Disclaimers should be clear and should not be used in an attempt to evade responsibility for entirely untrue statements. It should not be assumed that the use of disclaimer wording will put the onus on the consumer to carry out their own research and allow the advertiser to disclaim all responsibility– the buyers in the present case did not obtain a survey or check the size of the garden.
These considerations apply both in respect of estate agents' property particulars under section 1 of the Property Misdescriptions Act 1991 and also to advertising for any other product or service, to avoid falling foul of the Consumer Protection from Unfair Trading Regulations 2008.