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.
Or deceptive statement as to covenants.
(d) Shepherd v. Croft, 1911, 1 Ch. 521.
(e) King v. Wilton, (1843) 6 Beav. 124. See Whittington v. Corder, (1852) 16 Jur. 1034.
(f) Cox v. Coventon, (1802) 31 Beav. 378.
(g) Be Boulton and Cullingford, (1892) 37 Sol. J. 25.
(h) Dykes v. Blake, (1838) 4 Bing. N. C. 463; 7 L. J. N. S. C. P. 282; and see Gibson v. D'este, (1843) 2 Y. & C. C. C. 542; Baskcomb v. Beckwith, (1869) 8 Eq. 100; 38 L. J. Ch. 536; Arnold v. A., (1880) 14 Ch. D. 270. See also Jones v. Rimmer, (1880) 14 Ch. D. 588; 49 L. J. Ch. 775.
Where a lease, which contains the usual covenant to deliver up the premises in good repair at the end of the term, is sold, and any of the demised buildings have been removed, the fact should be stated: the omission of the buildings from the particulars is not sufficient (m). So, where other property is comprised in the lease (n), or the interest offered for sale is an underlease (o), though there is a condition that the purchaser shall be deemed to have notice of the contents of the "lease" (p), the fact should appear in the particulars or conditions: and its omission may be considered a sufficient ground for refusing specific performance (q);
On sale of lease, removal of buildings to be stated.
Sale of part of demised property, or of underlease.
(i) Darlington v. Hamilton, (1854) Kay, 550; 23 L. J. Ch. 1000; Bartlett v. Salmon, (1855) 6 D. M. & Gr. 33.
(k) Waring v. Hoggart, (1823) Ry. & M. 39; and see Dawes v. Betts,
(1848) 12 Jur. 412, 709; 17 L. J. Ch. 315; and Spunner v. Walsh,. (1849) 11 Ir. Eq. E. 597.
(l) Flint v. Woodin, (1852) 9 Ha. 618.
(m) Granger v. Worms, (1815) 4 Camp. 83.
(n) Tomkins v. White, (1800) 3 Smith, 435; Leuty v. Hillas, (1858) 2 D. & J. 110, 122; 27 L. J. Ch. 534; Brumfit v. Morton, (1857) 3 Jur. N. S. 1198; which see as to "derivative lease" and "underlease" being convertible terms.
(o) Madeley v. Booth, (1848) 2 De G. & S. 718; Re Beyfus and Masters, (1888) 39 Ch. D. 110; and see Lee v. Rayson, 1917, 1 Ch. 613.
(p) Broom v. Phillips, (1896) 74 L. T. 459.
(q) Brumfit v. Morton, (1857) 3 Jur. N. S. 1198; Creswell v. Davidson, (1887) 56 L. T. 811. See, too, Hayford v. Criddle, (1855) 22 Beav. 477; Flood v. Pritchard, (1879) 40 L. T. 873; Camberwell, etc. Building but the purchaser cannot on this ground refuse to complete, if the vendor has only agreed to sell "all his interest in the lease" (r);
Where the particulars refer to the lease, and there is a discrepancy between the two, and the terms of the lease are the more favourable to the purchaser, the vendor is bound by the description in the lease, and must show a title in conformity therewith (s).
Discrepancy between particulars and lease.
When a plan of the estate is attached to (t), or accompanies, the particulars, or is so incorporated in the contract as to control the description (u), and is incorrect, it will be a material consideration with the Court whether the purchaser was thereby misled; but, if accurate, it is merely tantamount to a view of the property; so that when an estate was sold in lots, and it correctly appeared by the plan that lot 1, an inn, was supplied with water by a drain leading from a well in lot 4, this was held to be merely expressive of the physical fact, and not to amount to any engagement on the part of the vendor that there should be a reservation of a right to water in the conveyance of lot 4; and a bill filed by the purchaser of lot 1 for compensation was dismissed with costs (x). But where the plan so represents adjoining land as to make it apparently part of the property, and the purchaser is thereby misled, this may be a ground for refusing a decree for specific performance against him (y). Thus, where an estate was sold in lots, subject to restrictive covenants as to the trades to be carried on upon the estate, and the vendor retained a small plot which, though shown on the plan, was not coloured nor marked with his name as in the case of other adjoining owners, the Court refused to enforce the contract against a purchaser of one of the lots, unless the vendor entered into similar restrictive covenants as to the excepted plot (z).
Reference to plan.
Society v. Holloway, (1879) 13 Ch. D. 754; 49 L. J. Ch. 301; Re Beyfus and Masters, (1888) 39 Ch. D. 110.
(r) Waring v. Scotland, (1888) 57 L. J. Ch. 1016.
(s) Bentley v. Craven, (1853) 17 Beav. 204.
(t) See Be Lindsay and Forder, (1895) 72 L. T. 832, where there was a note on the plan that it was prepared as a guide for intending purchasers, but its accuracy was in no way guaranteed.
(u) Nene Valley Commissioners v. Dunkley, (1876) 4 Ch. D. 1.
(x) Fewster v. Turner. (1842) 6 Jur. 144; 11 L. J. Ch. 161; but see Dykes v. Blake, (1838) 4 Bing. N. C. 463; 7 L. J. N. S. C. P. 282.
(y) See Weston v. Bird, (1854) 2 W. R. 145; Denny v. Hancock, (1870) 6 Ch. 1; Arnold v. A., (1880) 14 Ch. D. 270; Brewer v. Brow, (1884) 28 Ch. D. 309; 54 L. J. Ch. 605; Jacobs v. Revell, 1900, 2 Oh. 858.
On the sale or lease of building ground, the exhibition on the plan of intended roads or other improvements on the adjacent land does not bind the vendor or lessor to make or execute such roads or improvements (a), nor entitle the purchaser or lessee to a grant of right of way over any roads so laid down on the plan, except such as form the direct means of communication with the nearest highway (b); but a vendor would not, it appears, be allowed to divide and appropriate the land in a different manner, so as to attract an occupancy and population entirely different from that which would probably have been produced by acting on the plan proposed and held out at the sale (c). On the other hand, when a house is sold "with all its lights," a statement in the particulars, that adjoining land belonging to the vendor is building land, does not authorise the vendor or a purchaser from him to build upon the adjoining land so as to obstruct such lights (d). But an implied grant of an easement will be restricted to what at the time the vendor has power to grant. Where, therefore, at the time of sale the vendor's interest in the adjoining land is only for a term of years, the implication will not extend beyond the period when the term expires, notwithstanding that in the meanwhile the vendor's interest in such adjoining land may have become enlarged (e).