“Not aware” is not a defence: Infestations, enquiries and the duty of disclosure in property transactions

In property transactions, pre-contract enquiries are more than just routine formalities; they are critical due diligence tools designed to uncover issues that may materially affect the buyer’s decision to proceed. The seller’s responses form part of the factual matrix on which buyers rely, and when those replies are inaccurate or misleading, the consequences can be severe.

The recent High Court decision in Patarkatsishvili & Anor v Woodward-Fisher [2025] EWHC 265 (Ch) serves as a stark warning: when it comes to replying to enquiries, evasive answers can be just as dangerous as outright lies.

Replies to enquiries: More than a box-ticking exercise

Buyers in both residential and commercial property transactions routinely raise pre-contract enquiries using standard forms (e.g., TA6, CPSEs). Pre-contract enquiries are a set of standardised questions raised by a buyer’s solicitor before a property contract is exchanged. Their purpose is to elicit a wide range of important information from the seller about the property; such as disputes, boundaries, planning permissions, occupiers, or defects that may not be apparent from physical inspection or title documents. The seller’s replies help the buyer assess legal and practical risks before proceeding with the transaction.

While the legal doctrine of caveat emptor (buyer beware) continues to apply, this does not give sellers a licence to mislead. Once a seller chooses to answer an enquiry, they must do so accurately, honestly, and completely. Misleading replies, even when cleverly worded, can constitute misrepresentation, fraud, negligence, or otherwise.

Case spotlight: Patarkatsishvili v Woodward-Fisher [2025] EWHC 265 (Ch)

This recent case offers a textbook example of how a sellers careful (but dishonest) wording can unravel disastrously.

The facts

William Woodward-Fisher sold a £32.5 million mansion to wealthy buyers. The property had been fitted with wool-based insulation – unfortunately, an ideal breeding ground for moths. A serious infestation was discovered in 2018, and pest control professionals had advised that the only real remedy was to remove the insulation entirely.

Rather than disclose this, the seller continued periodic spray treatments and, when responding to pre-contract enquiries, stated that he was “not aware” of any vermin issues and had not commissioned any surveys on the topic. He further advised the buyer to rely on their own inspections. The definition of vermin was clarified in this case as “animals or insects that are capable of infesting a residential house and causing a problem to the occupier or the house”. The seller was aware of the issue as he had received reports from pest control companies identifying the moth infestation but chose not to disclose these reports.

The legal issues

The court was asked to consider whether the sellers responses amounted to fraudulent misrepresentation. It concluded:

• The replies were false: The seller knew about the infestation and had expert evidence confirming its severity. The “not aware” response was not just misleading – it was dishonest.
• The buyers relied on the replies: The buyers’ solicitors reviewed the responses, found no red flags, and advised accordingly. The court found that full disclosure would almost certainly have changed the outcome of the transaction.
• The misrepresentation was fraudulent: The seller’s conduct – knowing of the infestation and deliberately evading disclosure – was held to be a clear case of fraud.

The court granted rescission, allowing the buyers to unwind the contract and recover their full £32.5 million purchase price, plus damages. Woodward-Fisher was left with a moth-infested property and a savage legal lesson.

Lessons from the moth mansion

This case shatters the myth that carefully crafted wording (“not aware”, “not surveyed”, “rely on your own inspections”) is a sufficient shield. As the court made clear, wilful omission in the face of known defects will attract liability.

Had the seller refused to answer entirely, stating, for example, “This question does not relate to the legal title, and we will not be answering it” as per paragraph 15 of the Law Society Conveyancing Protocol, he might have avoided the worst of the fallout. But once a reply is given, it must be truthful.

Practical implications for sellers and solicitors

• Be transparent: If you know of a defect, disclose it honestly or decline to answer within protocol boundaries. Half-truths are risky.
• Avoid ambiguous wording: “To the best of my knowledge” won’t help if that knowledge includes damning reports hidden in a drawer.
• Keep records: Document what was known, what was disclosed, and why.
• Update replies if facts change: A duty to correct prior responses may arise if the situation materially alters pre-completion.

Advice for buyers

• Press for clarity: Vague or qualified answers should be challenged.
• Don’t over-rely on caveat emptor: A seller who lies cannot invoke that doctrine.
• Incorporate warranties where possible: Consider contractually binding replies where issues are business critical.
• Act fast on discovery: If misrepresentation is suspected, seek legal advice immediately – delay may prejudice your remedies.

Conclusion: Trust is not a substitute for truth

Patarkatsishvili v Woodward-Fisher is more than a colourful cautionary tale about moths and mansions. It affirms that sellers who mislead buyers through evasive or false replies do so at their own risk. The law is clear: if you know of a problem, you cannot pretend you don’t by clever phrasing. The judgement in this case reinforces that fraudulent misrepresentation in property transactions leads to severe consequences.

In high-value property deals – and in reality, in any deal – the integrity of the transaction depends on the accuracy of representations. Where a seller chooses to respond, they must do so honestly. Because as Mr. Woodward-Fisher discovered, even the most luxurious insulation can’t shield you from the consequences of a lie.

How can we help

If you would like to discuss anything discussed in this article in further detail, please contact a member of our residential conveyancing team.