This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Defects in an estate may be either patent, - that is, such as may be discovered by ordinary vigilance on the part of a purchaser or his surveyor; e.g. the existence of an open footpath over the property (a), or the ruinous state of buildings (b); or latent, - that is, such as usual or even considerable care (c) would not enable him to discover; e.g., the existence of defects in a ship's bottom when sold afloat (d), a right of way unknown to the vendor and the purchaser (e); or an underground culvert for passage of water (f). A vendor is not bound to point out patent defects (g); nor does the existence of the same entitle a purchaser either to claim damages or to resist specific performance.
Patent and latent defects.
The question what amounts to a patent defect within the meaning of the rule was discussed in a recent case. "I think that in considering what is a latent defect and what a patent defect," said Sargant, J. in Yandle & Sons v. Sutton (h), "one ought to take the general view that a
(a) Bowles v. Sound, (1800) 5 Ves. 508.
(b) Grant v. Munt, (1815) G. Coop. 173; Keates v. Earl Cadogan, (1851) 10 C. B. 591; 20 L. J. C. P. 76,
(c) See Sug. 14th ed. 333.
(d) See Hellish v. Motteux, (1792) Pea. N. P. 156; but see Baglehole v. Walters, (1811) 3 Camp. 154.
(c) Ashburner v. Sewell, 1891, 3 Ch. 405; 60 L. J. Ch. 784. (f) Re Puckett, 1902, 2 Ch. 258; 71 L. J. Ch. 666; Pemsel v. Tucker, 1907, 2 Ch. 191.
(g) Sug. 14th ed. 2. (h) 1922, 2 Ch. 199, 210.
6(2) patent defect, which can be thrust upon a purchaser, must be a defect which arises either to the eye, or by necessary implication from something which is visible to the eye. It would not be fair to hold that a purchaser is to be subjected to all the righto which he might have found out, if he had pursued an inquiry based upon that which was presented to his eye. I think he is only liable to take the property subject to those defects which are a necessarr consequence of something which is patent to the eye."
A vendor must not, either during a treaty for, or while intending a sale, endeavour to conceal a defect, or to divert a purchaser's attention from it; in neither case, if proved, can he enforce the agreement (i); and in the first (as where a vendor, about to sell a house, purposely plastered and papered over a defect in the main wall (k)), the purchaser may recover his deposit, though the estate be sold " with all faults" (l). Where there was an agreement to rent a furnished house, which, from defective drainage, was unfit for habitation at the time fixed for the commencement of the tenancy, the tenant was allowed to rescind the contract, on the ground that in such a letting there is an implied undertaking that the house shall be fit for occupation at the time at which the tenancy is to begin (m), but the warranty does not extend to the whole term (n). By the Housing Act, 1925, s. 1 (o), it is provided that (except as therein mentioned) in any contract or letting for habitation a dwelling-house at a rent not exceeding in the case of a house in the County of London, 40l., and in the case of a house situate elsewhere, 26l., there is to be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy reasonably fit for habitation. In a recent case, there was a letting of a furnished house in which a person had been suffering, shortly before, from pulmonary tuberculosis. It was held by Mccardie, J. that the tenant was entitled to repudiate the tenancy agreement on the ground that the premises were not reasonably safe for human occupation (p).
(i) Sug. 14th ed. 2. See Shirley v. Stratton, (1785) 1 Br. C. C. 440: Small v. Attwood, (1832) You. at p. 490.
(k) See Pickering v. Dowson, (1813) 4 Taun. at p. 785.
(l) Schneider v. Heath, (1813) 3 Camp. 506; Baglehole v. Walters, (1813) ib. at p. 156; Sag. 14th ed. 333.
(m) Wilton v. Finch-hatton, (1877) 2 Ex. D. 336; 46 L. J. Ex. 489; and see Smith v. Marrable, (1843) 11 M. & W. 5; 12 L. J. Ex. 223. But there is no such implied undertaking on the letting of an unfurnished house: Keates v. Earl Cadogan, (1851) 10 C. B. 591; 20 L. J. O. P. 76; Chester v. Powell, (1885) W. N. 67; 52 L. T. 722.
(n) Sarson v. Roberts, 1895, 2 Q. B. 395; 65 L. J. Q. B. 37. See Collins v. Hopkins, 1923, 2 K. B. p. 620.
(o) Re-enacting, with amendments, ss. 14 and 15 of the Housing and Town Planning Act, 1909. And see Stanton v. Southwick, 1920, 2 K. B. 642.
The fact that a vendor, aware of a serious nuisance affecting his property, entrusts the sale to an agent who is ignorant of it, and who, on being asked by a purchaser, innocently denies its existence, does not prevent the purchaser avoiding the contract (q). It has been held in an action upon the contract, that the representation of the agent, if made in the ordinary course of business (r), is the representation of the principal; but in an action on the case for deceit, it has been said that the misrepresentation or concealment must be proved against the principal (s). This view, however, does not appear to be correct. A principal is, no doubt, liable for a misrepresentation by his agent, made in the course of the principal's business and for his benefit (t). But the responsibility of a principal goes beyond this. He is liable for his agent's fraud, committed in the course of his employment, whether such fraud is for the principal's benefit, or for the benefit of the agent alone (u).
Misrepresentation by agent.
(p) Collins v. Hopkins, 1923, 2 K. B. 617.
(q) National Exchange Co. v. Drew, (1855) 2 Macq. 108, 145; Mullens v. Miller, (1882) 22 Ch. D. 194; 52 L. J. Ch. 380; and see Ludgater v. Love, (1881) 44 L. T. 694; Wilson v. Fuller, (1843) 3 Q. B. 68; Barwick v. English and Joint Stock Bank, (1867) L. R. 2 Ex. 259, 262; 36 L. J. Ex. 147; notes to Pasley v. Freeman, 2 Sm. L. C.