Particulate proceedings possible post property purchase?

Whilst Covid-19 pandemic lockdown measures have caused an unprecedented reduction in transport activity on our roads, giving rise to a corresponding decrease in ground level air pollution, a recent study has concluded that a quarter of UK homes are in areas with dangerous levels of pollution.

A nationwide study commissioned by the Central Office of Public Interest (COPI) assessed the levels of pollution across the UK. The COPI is said to be a "non-profit creative industry alliance", with the aim of deepening "public understanding on issues that matter to people, but the Government no longer seems too concerned about."

Imperial College London carried out the study. The study analysed pollution levels within 20 metre x 20 metre squares across the UK. The study concluded that the levels of pollution at the doorsteps of 8 million homes across the UK exceeded at least one of the World Health Organisation's recommended limits for particulate matter or nitrogen dioxide. Anyone can access the study's analysis for their own postcode.

The COPI also commissioned an opinion from an unnamed QC, who has concluded that there is a "strong argument" that estate agents would be breaching the Consumer Protection from Unfair Trading Regulations 2008, if they fail to inform prospective buyers that pollution outside a property could harm health. By extension, could this "strong argument" have an impact on the obligations on surveyors and solicitors, who owe duties of care to their clients, to warn them of risks in proceeding with a purchase?

A recent article in The Times included a quote from the Property Ombudsman, who agreed that consumers should be aware of air pollution information before making a decision on purchasing or leasing a property and that it is information that all sellers/landlords should be providing to prospective buyers/tenants.

If such information is available to those who owe duties of care to consumers, it may follow that it requires to be disclosed to them. Accordingly, consideration ought to be given to whether consumers are entitled to be informed, prior to purchasing or leasing a property, about the information relative to air pollution at the property.

On the basis that there is said to be a "strong argument" that those selling or leasing property may be in breach of the Consumer Protection from Unfair Trading Regulations 2008, if they fail to inform buyers/tenants of the pollution levels outside a property, the risk of a potential claim should be considered seriously.

It is possible that claims under this head could gain traction in Scotland by disgruntled consumers coming together and seeking permission to raise group proceedings in the Court of Session. Group proceedings are likely to be attractive where individual claims are of minimal or low value, but pursuers can join together to pool the time, expense and effort required, using one legal team in a single action. Such claims will often be capable of attracting third party funders, so removing all financial risk from the pursuers in the event that they are unsuccessful.

If you are an estate agent, surveyor or solicitor providing real estate services, you should consider the steps you may be able to take to prevent or minimise exposure to such claims when advising about the sale or lease of residential property.