Selling a house with damp, and the question the form never asks
Damp appears once in the Property Information Form, and not where you would expect. There is no question asking whether your house has damp. What that means for what you must say, and where the liability actually sits.
By The Damp GuyLast updated
The short version
It is not illegal, and you do not have to fix it first. The Property Information Form your buyer relies on contains no question asking whether the property has damp. It appears once, asking whether you hold a damp-proofing guarantee. So the risk is not in what you have. It is in what you say, because a misleading statement engages the Misrepresentation Act 1967, and the burden then sits on you to show you had reasonable ground to believe it.
What the form actually asks
Everybody writing about this refers to the TA6. Almost nobody opens it, and the useful fact is an absence.
The TA6 Property Information Form is the document a seller completes and a buyer relies on. In the 6th edition, damp appears exactly once, at question 6.1(b), under the heading "Guarantees and warranties": "Does the property have any of the following unexpired guarantees or warranties? ... (b) damp proofing", with the instruction "If yes, supply a copy."
That is the whole of it. There is no question asking whether the property has damp, no question asking whether it has ever had damp, and no box for describing a patch on a wall. The form asks whether a guarantee exists, and a guarantee is a document you either hold or do not.
So the popular framing, that you must "declare" damp or you are breaking the law, does not survive contact with the form. There is nothing to declare it on. What there is instead is a set of questions you must answer accurately, and a statute that bites on statements you make.
Having it is not the risk. Saying something about it is.
This is the distinction the whole question turns on, and it is the one nobody draws.
| What you do | Risk | Why |
|---|---|---|
| Own a house with damp and sell it | None | There is no duty to repair before sale and no question on the form about it. |
| Answer 6.1(b) accurately about a guarantee you hold | None | That is the form working as intended. Supply the copy it asks for. |
| Say "there has never been any damp" when you have had it treated | Real | A statement the buyer relies on. This is the territory the Misrepresentation Act covers, and it applies to emails and conversations, not only to the form. |
| Answer a question you are not sure about, confidently | Real | The form asks for a reasonable basis, not certainty, and it explicitly permits saying you do not know. |
The form's own instructions are the practical route through all of this, and they are more forgiving than the folklore suggests. Sellers are told to "answer the questions truthfully, completely and as accurately as you can from your own knowledge", and that "you are not expected to have legal or technical knowledge, but you are expected to have a reasonable basis for the answers that you give".
And then the sentence that answers most of what people are actually frightened of: "If you do not know any answer, you must say so." Not knowing is a permitted answer. Guessing confidently is where sellers get into trouble.
What the Act actually says
It gets named on every page about this and quoted on almost none, which is a shame, because the operative half is one clause.
Section 2(1) of the Misrepresentation Act 1967 reads:
"Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true."
Two things are worth pulling out. The first is "notwithstanding that the misrepresentation was not made fraudulently". You do not have to have lied. An honest answer that was wrong can still land here.
The second is "unless he proves". The burden is on the person who made the statement to show they had reasonable ground to believe it, not on the buyer to show they did not. That is why "I do not know" is a safer answer than a confident guess, and it is why the form goes out of its way to permit it.
The TA6 says the same thing in plainer words: buyers can rely on the information you give, and "if you give misleading information, the buyer may be able to claim compensation after completion".
What the buyer's side is actually going to do
Knowing this is more useful to a seller than any amount of worrying about disclosure.
Your buyer will instruct a survey, and the form tells them to: it says the seller gives no warranty about condition and that they should "instruct a surveyor to carry out a survey to make sure they are informed about the physical and structural condition of the property".
What that surveyor will do is narrower than most sellers fear. RICS's own published description of a Home Survey Level 2 says the surveyor uses a damp meter and does not force or open up the fabric of the building. So the realistic outcome is not a forensic diagnosis. It is a recommendation for further investigation, which lands on your buyer as an open question with no price on it.
That open question is what stalls sales, far more often than the damp itself. A buyer who cannot tell whether they are looking at a blocked gutter or a structural problem will either over-correct on price or walk. The seller's real lever is therefore not concealment and not silence: it is knowing what the reading actually means and which of the three kinds is on the wall, before the survey lands rather than after.
About this resource
The form quoted throughout is the Law Society's TA6 Property Information Form, 6th edition, read as a published copy of the form itself rather than described from commentary. The statement that damp appears only at 6.1(b) was verified by searching the full extracted text of that form. The statute is quoted verbatim from legislation.gov.uk. The RICS wording is from RICS's own published description of the Home Survey Level 2, already sourced for the damp survey pillar on this site.
The TA6 is used in England and Wales. Nothing here is researched for Scotland or Northern Ireland, and no claim is made about them. Nothing here is about the 5th edition of the form or earlier, which was not read.
There is no devaluation figure on this page. "How much does damp devalue a house" is a real and repeated search, and no defensible general number exists, because it turns on the kind, the extent, the buyer's finance and the market. A confident percentage would be exactly the sort of number this site exists to distrust.
This is not legal advice, and it deliberately stops at quoting the form and the statute. It cannot tell you whether something you said was misleading, and that is a question for a conveyancer or a solicitor who can see your paperwork. This site does not survey, treat, quote or refer.
Common questions
Is it illegal to sell a house with damp?
No. Owning and selling a house with damp is not illegal and there is no obligation to fix it first. What creates risk is what you say about it. The Property Information Form your buyer relies on does not contain a question asking whether the property has damp, so there is no box you can fail to tick. The exposure comes from the Misrepresentation Act 1967 if you make a statement that turns out to be misleading, whether in an answer, an email or a conversation.
Do I have to tell the buyer about damp?
You have to answer the questions you are actually asked truthfully, which is a narrower duty than volunteering everything. The TA6 tells sellers to "answer the questions truthfully, completely and as accurately as you can from your own knowledge", and adds that "you are not expected to have legal or technical knowledge, but you are expected to have a reasonable basis for the answers that you give". It also says, in the sentence that answers most of these worries: "If you do not know any answer, you must say so."
What does the form actually ask about damp?
One thing, and it is not what people expect. Question 6.1(b), under "Guarantees and warranties", asks: "Does the property have any of the following unexpired guarantees or warranties? ... (b) damp proofing", and if yes, "supply a copy". That is the only place damp appears in the whole form. So the form asks whether you have a damp-proofing guarantee, not whether you have damp. If you had work done and hold a guarantee, that is the question you must answer accurately.
Can the buyer sue me for damp after completion?
They can bring a claim if they were misled, and the wording is worth reading rather than paraphrasing. The Misrepresentation Act 1967 s.2(1) makes a person liable for damages for a non-fraudulent misrepresentation "unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true". The burden sits on the person who made the statement. The form itself puts the consequence in the same plain terms, telling sellers that misleading information can leave the buyer able to claim compensation once the sale has completed.
Can you hide damp from a surveyor?
For a morning, possibly, and it is a bad idea for reasons that have nothing to do with morality. RICS's own published description of a Home Survey Level 2 says the surveyor uses a damp meter and does not force or open up the fabric of the building, so a freshly painted wall is not being cut into. But concealment is an act rather than an omission, and it sits on the wrong side of the line the Act draws. It also does not survive the first wet autumn after completion, when the buyer has your statements in writing.
Do houses with damp sell?
Yes, routinely, usually at a price that reflects it or with the work priced into the negotiation. What tends to cost a seller more than the damp itself is the discovery pattern: an offer accepted, a survey that mentions damp, a buyer who now cannot tell whether they are looking at a £400 gutter repair or a £4,000 problem, and a chain that stalls in the gap. Knowing which kind you have before you market the house is worth more than pretending you have none.
What happens if I do not fix rising damp before selling?
Nothing automatically. There is no requirement to carry out damp work before a sale and no certificate you must produce. A buyer's surveyor may recommend further investigation, and a lender may take a view, but that is the buyer's process rather than a duty of yours. The decision is commercial: fixing it costs you money now and settles the question, and not fixing it hands the buyer an open question to negotiate against.
Does the seller warrant the condition of the house?
No, and the form says so explicitly. The TA6 tells buyers that "even where the seller has guarantees or other documents relating to the condition of the property, the seller is not giving any warranty about it", and that they should "instruct a surveyor to carry out a survey to make sure they are informed about the physical and structural condition of the property". Condition is the buyer's to investigate. Your answers are yours to get right.