Q&A: Moths and silverfish and ladybirds
Ashley Thompson and Georgina Muskett handle queries on infestations following a recent high-profile example.
Question
I am selling an industrial unit used for textile manufacturing and we have historically had an issue with silverfish, although it hasn’t adversely affected our business. One of the standard pre-contract enquiries asks me to confirm if the property has been affected by, among other things, “any infestation”. Do I need to disclose the silverfish issues?
Answer
This will depend on the extent of the problem and whether it is so severe as to damage the property or harm its occupier. However, the position is not clear-cut and professional advice should always be sought about what you will need to disclose.
Explanation
In the widely publicised “moths mansion” case Patarkatsishvili and another v Woodward-Fisher ([2025] EWHC 265 (Ch); [2025] EGCS 25), the court concluded that an infestation of clothes moths was a “vermin infestation” that ought to have been disclosed in pre-contract enquiries. The pre-contract enquiry at issue specifically asked about a “vermin infestation” but the same reasoning could apply to your standard enquiry.
As to whether moths constituted “vermin”, the judge first looked at the dictionary definition and found that, while moths were not typically listed, context was everything. It was observed that the enquiry is designed to find out if there has ever been, or is, a problem with an infestation that has damaged or might damage or adversely affect the enjoyment of property or give rise to an expense to eradicate. Moths were found to satisfy those criteria. As to whether there was an “infestation”, both parties had expert reports, which the judge found revealed an infestation.
That decision related to residential property and, on its facts, an extreme infestation. Therefore, consideration would need to be given to the specifics of your situation. First, your pre-contract enquiry is not limited to “vermin” – simply an “infestation”. It is likely, therefore, to be broader in scope (ie not limited to “something harmful”). Ultimately, the judge made it clear the onus is on the seller to provide honest answers to pre-contract enquiries. That is particularly where the silverfish have caused damage to, or affected the use and enjoyment of, the unit. If there have been only a few sightings this is unlikely to amount to an “infestation” which needs to be disclosed. The important point is to provide honest answers to avoid a claim against you for misrepresentation.
Question
I recently sold a property with a ladybird infestation. The pre-contract enquiry asked if the property had been affected by a “harmful infestation”, and I did not consider ladybirds to be harmful. It is four years later, and, even though the buyers have carried out substantial internal and external works to the property, they are now trying to cancel the agreement for sale. If they succeed, will I be handed back the property?
Answer
If the buyers seek to unwind the sale, you might succeed in resisting that claim given that there has been a significant delay in bringing the claim and that the buyers cannot hand back the same thing that they were sold.
Explanation
Rescission (ie the ability to void a transaction) is an equitable remedy, which means the court may not allow it where it would be unconscionable to do so. In Patarkatsishvili, it was alleged that the claimant was barred due to a delay of 11 months before rescinding and it being impossible for either party to give effective restitution.
The judge found that the delay was, in fact, about eight months, and that there would have to be either “culpably excessive delay”, an irremediable benefit to the claimants, or prejudice to the defendant. Four years is a significant time, and you could argue that this falls into the first of the judge’s categories. You may also be able to show that you have been prejudiced by that delay: perhaps, if the market has declined significantly.
As to restitution, the defendant argued that: (a) he did not have the means to repay all of the purchase money; and (b) the property he would receive back is not what he sold, in light of various alterations. The judge restated the well-established rule that it must be possible to restore the defendant to their pre-contract position, not the other way around. If practical justice cannot be done, rescission should not be ordered. Accordingly, it does not matter if you cannot repay the purchase money: the buyers are entitled to choose rescission, even if they will receive less than what they paid. As to alterations, it is likely to take a not-insignificant reduction in the value of the property to be able to rely on this. Further, your personal tastes will be irrelevant where you do not plan to reoccupy (eg if you have to sell to repay the buyers). It is more likely that this would all feed into a financial adjustment, as opposed to being a bar to rescission. In Patarkatsishvili, the experts agreed that the property had not been devalued at all, and so the judge had no difficulty in rejecting the defendant’s position.
Ashley Thompson is a barrister at Landmark Chambers and Georgina Muskett is a Senior Associate at Charles Russell Speechlys LLP.
This article was first published in Estates Gazette on 1 July, 2025.
