For those buying, selling or carrying out improvement works on a prime residence, it can be very important to maintain privacy and confidentiality, particularly if you already have a public profile. At Kingsley Napley, helping our clients to do so is a key part of our role and there are a range of steps we can take.
Non-disclosure agreements (NDAs) can be effective in relation to the sale of a property or to ensure privacy during building works and should be put in place before commencing a process. Selling or letting agents can be asked to sign an NDA at the point of engagement. Similarly, once a buyer has been found, or a property has been found to purchase, the other side’s agent, surveyor and any others in their professional team can also be requested to sign NDAs. Likewise, it is not unreasonable to expect builders, developers, architects, designers and other specialists hired in relation to an improvement project and any party they sub-contract to be bound by the terms of an NDA.
A further step that a seller can take is to request that their agent seeks interest in the property off-market. This maintains a level of discretion and minimises the risk of marketing photographs or videos of the home circulating online.
Once a sale or purchase is agreed, it is possible to include a confidentiality clause within the contract. This will ensure that the other party is not permitted to disclose the terms of the contract and the transfer, the details of any negotiations between the parties or any documents supplied without prior written consent, and that they will do their best to ensure that agents and all parties instructed by them will also keep the matter confidential. This contractual obligation brings the importance of confidentiality to the fore for the parties and will ensure remedies are available if the other party goes on to breach confidentiality.
Such an agreement can be entered into with a proposed buyer. The buyer will usually pay a reservation fee (which is only refundable in certain circumstances) to ensure that negotiations do not take place with anyone else during the agreed exclusivity period. This will encourage only committed buyers to enter into the conveyancing process.
The purchaser of a property that has been on the open market can take steps post-purchase to obtain the copyright in any marketing materials (e.g. floorplans and photographs of the property) to control their circulation going forward. This can assist with preventing the re-publication of the material or in seeking the removal of the material online, without the assistance of the original copyright holder. If you are an individual or a family who attracts international interest, obtaining copyright can be important to deal with publication by foreign media. If copyright has not been obtained, privacy rights can be advanced to prevent any re-publication or the removal of material in this jurisdiction but local advice would need to be taken in respect of overseas media.
Land Registry records
New rules took effect last year to enhance the transparency of property owned in this country by foreign firms, trusts and shell-companies, as part of the Government’s crackdown on money-laundering and financial crime. The idea is that public records must show the beneficial owner of a property. It has been reported that many overseas entities have still failed to comply with these new laws, however ultimately this is ill-advised given fines can be imposed. These new rules are in addition to an existing requirement to disclose the price paid for a property, where exemptions only apply in exceptional circumstances.
Local authorities are likewise required to keep a public register of applications for planning permission to carry out works to a property in the interests of providing the public with an opportunity to comment on proposals. This must be kept at the local authority’s ‘principle office’, although in practice, it is usual for local authorities to post applications online, even though there is no enhanced duty or legal requirement to do so. This may be a cause for concern in relation to security, for example, where applications include specific details of entrances and exits, the location of bedrooms and external access points to a property. It may encourage campaign groups to protest against a proposal and/or the media may seek to report on information in the public domain. The potential challenge that can be made to the local authority is that in making such information available online risks interfering with an individual’s right to privacy in respect of their family and home life. There are also legal steps that can be taken to prevent the dissemination of private information and material by media outlets and on social media platforms.
What action can be taken if my privacy and confidentiality is breached?
Our focus at Kingsley Napley is on taking pre-emptive steps to prevent intrusion into privacy surrounding your home. However if details about the purchase of your new home, or the sale of your previous home, become available to the public, there are steps we can take to manage this depending on the type of information that has been published.
Details relating to the sale or purchase transaction, photographs of the interior of your home or areas not visible to the public, and specific designs and plans of the property contained in planning applications, can be private information. It is therefore possible that disclosure of this information online or in a newspaper would constitute an infringement of your right to a private and family life. We can assist you in seeking the removal of private information about your home from social media platforms and newspaper articles and prevent its continued spread.
The re-publishing of architectural designs of your property, photographs of your home taken for marketing purposes and drawings and floor plans of your home may be protected by copyright laws. As explained earlier, if you own the copyright in these materials, you can enforce your rights to prevent re-publication of them. If a third party publishes the materials you can seek the removal of the re-publication on the basis that it constitutes a breach of your copyright if you are the ultimate owner. If you are not, you will need to request that the copyright holder (e.g. the architect or photographer) asserts their rights in order for the materials to be removed or transfers the copyright to you. It is however preferable for copyright to have been transferred during the purchase process as referred to previously.
Generally, we recommend that when deciding whether to buy, sell or carry out home improvements those particularly concerned with privacy consider their options at the outset of their sale, purchase or building works, before the property has even been marketed or planning permission submitted, to ensure maximum protection. However, there are legal steps that can be taken in the event that privacy is breached in order to prevent the damaging spread of material.
A shortened version of this blog was first published by PrimeResi on 7 November 2023.