SHORT ANSWER: The council ordered Mrs Rosser to remove a velux window from a bedroom as the window did not comply with conservation area requirements. However, without the velux window the bedroom ceased to comply with building regulations requirements for ventilation and lighting.
Mrs Rosser successfully sued the seller for the losses flowing from this issue, for £34,000. It was held that the seller [Pacifico] had made an untrue statement of fact which Mrs Rosser relied on (i.e. there was a misrepresentation), that there were two bedrooms when in fact there was only one. Mrs Rosser’s duty to investigate during the conveyancing did not excuse the seller from liability – where the buyer had bought a converted property
Rosser v Pacifico on Misrepresentation:
Why the Buyer Won After Losing a Bedroom – In Rosser v Pacifico Ltd [2023] EWHC 1018 (Ch) Mrs Eryl Rosser recovered £34,142.92 from the seller of a Cardiff flat. The case is a leading example of Rosser v Pacifico misrepresentation involving the description of bedrooms and answers given on the Property Information Form.
This article explains four key points
- the seller’s initial position
- why Mrs Rosser removed the Velux window
- how Building Regulations prevented the room being used as a bedroom
- why the court found the seller liable
The Seller’s Initial Position
Pacifico Ltd (formerly Bronte Capital Ltd) converted 15 Hamilton Street into two apartments in 2015. It marketed apartment 1 as a two-bedroom property. The lease plans labelled the two second-floor rooms “Bed 01” and “Bed 02”. The estate agent’s email also called the front room a bedroom. When completing the Law Society Property Information Form (TA6), the seller stated:
- it was not aware of any breaches of planning permission or works without necessary consents; and
- there were no planning issues to resolve.
The seller’s case at trial was that:
- referring to a room as a bedroom did not guarantee it could lawfully be used as one;
- internal layout was flexible;
- the buyer’s solicitors could (and should) have checked the Council planning portal themselves; and
- the director honestly believed the answers on the form were correct because he relied on his memory and the building-regulations completion certificate.
Mr Justice Zacaroli rejected those arguments. [side note – in the William Sindall case, saying you’re ‘not aware’ of something implies you’ve checked carefully. The emu defence of burying your head in the sand is not a great one!]
Why Mrs Rosser Removed the Velux Window
Mrs Rosser completed the purchase on 8 July 2016 for £299,950. Fifteen months later, in October 2017, Cardiff Council wrote to her. The letter stated that the Velux rooflight in the front second-floor room was unauthorised. The property sits in a conservation area covered by an Article 4 Direction.
That Direction removed the usual permitted-development rights for rooflights. Planning permission had therefore been required – and none had ever been obtained. Mrs Rosser took advice and was told retrospective planning consent would not be granted. Leaving the window in place risked formal enforcement action by the Council.
To avoid that risk she instructed contractors to remove the Velux and make good the roof and ceiling.
What Building Regulations Did to the Use of the Room
Once the Velux was gone the front room had no source of natural light or ventilation. Part F of the Building Regulations 2010 (Approved Document F – Ventilation) requires every habitable room – including bedrooms – to have adequate means of ventilation. In practice this means both background (trickle) ventilation and purge ventilation capable of achieving four air changes per hour.
Purge ventilation is normally provided by an openable window.Without any opening the room failed Part F. It therefore could not lawfully be used as a bedroom. Mrs Rosser was forced to reconfigure the flat: she turned the first-floor living room into a bedroom and installed a bathroom in the former front bedroom so the property could still function as a two-bed.
Why Mrs Rosser Succeeded in Her Claim
Mrs Rosser sued under section 1 of the Misrepresentation Act 1967.
She had to prove four things:
- An actionable representation was made
- The representation was untrue
- She relied on it when entering the contract
- She suffered loss
The judge held that two representations were made and were false:
Representation 1 – Capability as a bedroom
Calling the front room a “bedroom” on the lease plans and in the agent’s email would reasonably lead a buyer to believe the room was lawfully capable of being used as a bedroom. That impression was reinforced by the physical layout she had seen (carpet, power points, separate light source).
Representation 2 – Reasonable grounds for the TA6 answers
The “no” answers on the Property Information Form carried an implied representation that the seller had reasonable grounds for those answers. Authority (Smith v Land and House Property Corporation and Brown v Raphael) confirms this implication where the seller is better placed to know the facts. As the developer, Pacifico was in a far stronger position than the buyer. The director had made no proper check of the planning permission. He therefore lacked reasonable grounds. The seller could not escape liability by saying the buyer’s solicitors should have checked the planning portal. [in fact the planning portal would not have show the enforcement notice, which was served AFTER completion. But it would have omitted conservation area consent which ought to have been present if the sellers representations were true…)
However – a purchaser is entitled to rely on the seller’s written answers the TA forms.
Damages were assessed as:
- £30,000 – difference in value between a two-bedroom and a one-bedroom flat in 2016
- £1,399.60 – extra stamp duty
- £2,535 – cost of removing the Velux and making good
- remaining costs of advice
Total: £34,142.92.
Practical Lessons from Rosser v Pacifico Misrepresentation
Sellers and developers must check planning consent for every window or rooflight before describing a room as a bedroom or answering the TA6 form. Buyers and conveyancers should treat a clean TA6 as helpful but still verify planning status of any loft or converted space, especially in conservation areas. Rosser v Pacifico remains the clearest recent illustration that a “bedroom” label is a representation of lawful capability, and that answers on the Property Information Form carry serious legal weight.
Other notes
Had the council issues proceedings before Mrs Rosser purchased? No! The council served notice AFTER Mrs Rosser had exchanged and completed. Mrs Rosser could not have relied on the council’s notice when she exchanged contracts, as the notice did not exist. Instead, she relied on the sellers replies given in the conveyancing process – which gave her the claim in misrepresentation, which succeeded.
Could Mrs Rosser have discovered this issue herself? Possibly, if she’d had a survey. Would the surveyor have told her that the window did not comply with conservation area requirements? It’s difficult to say as lots of surveyors simply ask the conveyancers to check this, and the conveyancers would say it’s surveyors issue. It would fall through the net.
The seller did have a good argument that Mrs Rosser should have known that the Velux was not compliant. This would have meant that the building control issue with the bedroom would have been Mrs Rosser’s risk alone. But the judge did not agree.
Also, Mrs Rosser was between a rock and hard place – with the window there was a conservation area claim, and without it building regulations claim – both originating the council. Title indemnity insurance would have helped her case too (and the seller possibly). Refers back to an important earlier precedents – see Smith v Land and House Property Corporation (1884) and Brown v Raphael [1958] establishes that where one party is better placed to know the facts, a statement of belief imports a representation that reasonable grounds exist.
It would be very difficult at first reading to see how Mrs Rosser could claim. If the Velux window had gone without consents in place – and she bought the property knowing this – there is argument to say she accepted the risk of buying a property with a duff window. The difficulty crept because she was persuaded by the seller and the estate agents that there were two bedrooms, factually when there was only one. This case blurs the lines between the duty to disclose by the seller and the duty to investigate by the buyer – it makes conveyancing more knifed edged than it already is. i.e. slower and more expensive all round.
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Buying a Converted Property: Mortgage Risks, PCCs and Essential Legal Checks