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.
Requisitions, time for.
The time for making requisitions begins to run from the delivery of a perfect abstract (i); but a purchaser will not be bound by the condition where the vendor has not delivered the abstract on the date fixed in the contract (k). The condition as to time does not preclude a purchaser from taking objections arising out of evidence called for before the expiration of the limited time (l); but the objections must be taken within a corresponding time after the production of the evidence by which they were suggested (m).
Time runs from delivery of perfect abstract.
The condition does not bind the purchaser where the objection concerns "the root of title," that is, a matter which would vitiate the title (n); or where there are grave objections to the title, which are not discoverable on the face of the abstract (o). The condition applies where the defects in the title disclosed could have been remedied if the objection had been made; but not where the abstract shows in express terms that the vendor has no title (p).
When the condition applies.
(e) Drysdale v. Mace, (1854) 5 D. M. & G. 103; 23 L. J. Ch. 518.
(f) Walker v. Barnes, (1818) 3 Mad. 247.
(g) See General Conditions of 1925, No. 9.
(h) Oakden v. Pike, (1866) 11 Jur. N. S. 666; 34 L. J. Ch. 620.
(i) Hobson v. Bell, (1839) 2 Beav. 17; 8 L. J. N. S.ch. 241; Blacklow v. Laws, (1842) 2 Hare, 40; Gray v. Fowler, (1873) L. R. 8 Ex. at p. 280; 42 L. J. Ex. 161. See inf. p. 283.
(k) Upperton v. Nickolson, (1871) 6 Ch. 436; 40 L. J. Ch. 401; Re Todd and Mcfadden, 1908, 1 I. R. 213.
(l) Blacklow v. Laws, sup.; Morley v. Cook, (1842) 2 Hare 106; 12 L. J. Ch. 136.
(m) See Sherwin v. Shakespear, (1854) 5 D. M. & G. at p. 536; 23 L. J. Ch. 177, 899.
In replying to requisitions made after the time fixed, the vendor should state all answers to be made "without prejudice," or the benefit of the condition may be lost (q).
When condition will be considered waived.
Though the condition expressly stipulates that the title shall be deemed to have been accepted subject to the objections made within the fixed time, the purchaser can recover his deposit where the vendor has no title (r); but not where the purchaser can only shew this by making inquiries which he is precluded from making by the contract (s).
Recovery of deposit.
It is generally provided that, if any purchaser shall make and insist on any objection or requisition as to title, conveyance, or otherwise (t), which the vendor shall be unable or unwilling to comply with, the vendors shall, notwithstanding any previous negotiation or litigation, have power to annul the sale.
Rescission by vendor.
Sometimes the condition is made to apply only to requisitions which the vendor shall be unable or unwilling, on the ground of difficulty or expense, to comply with (u). This qualification prevents a vendor from being able to escape from his contract in order to accept a better offer (x); but there is the danger of the vendor being exposed to a controversy as to what amounts to difficulty or expense.
Form of condition.
(n) Want v. Stallibrass, (1878) L. R. 8 Ex. 175; 42 L. J. Ch. 108; Re Tanqueray-willaume and Landau, (1881), 20 Ch. D. 465; 51 L. J. Ch. 434; Saxby v. Thomas, (1891) 64 L. T. 65; W. N. 28. See Pryce-jones v. Williams, 1902, 2 Ch. 517, as to which case quŠre.
(o) Warde v. Dickson, (1858) 5 Jur. N. S. 698; 28 L. J. Ch. 315; Re Cox and Neve, 1891, 2 Ch. 109; see, too, Boyd v. Dickson, (1876) Ir. R. 10 Eq. 255.
(p) Want v. Stallibrass, (1873) L. R. 8 Ex. at p. 181; 42 L. J. Ex. 108.
(q) Cutts v. Thodey, (1842) 13 Si. 206; Lane v. Debenham, (1853) 11 Hare, 188; M'culloch v. Gregory, (1855) 1 K. & J. 286; 24 L. J. Ch. 246.
(r) Want v. Stallibrass, sup.
(s) Re Scott and Alvarez, 1895, 2 Ch. 603; 64 L. J. Ch. 376; and see Beyfus v. Lodge, 1925, 1 Ch. 350.
(t) See Re Terry and White, (1886) 32 Ch. D. 14; 55 L. J. Ch. 345.
Where the words are "make or take," or simply "make." the right to rescind arises, it seems, immediately on the requisition being made (y). This seems objectionable. Where the word is "insist," three conditions must be fulfilled before the right to rescind arises: (1) an inability or reasonable unwillingness to comply with the requisition; (2) a communication to that effect to the purchaser; (3) an insistence by the purchaser on his requisition (z). Whatever be the wording of the condition, when once the right of rescission has arisen, and notice (which must be given within a reasonable time (a)) of rescission has been given, the purchaser has no locus pcenitentiŠ (b). In order to avoid any question as to what amounts to insistence (c), a definite time is frequently fixed within which the purchaser may withdraw any requisition which the vendor states himself to be unwilling to comply with (d).
When right to rescind arises.
There is a clear distinction between requisitions as to conveyance and requisitions as to title. When the purchaser merely requires the performance of an act, which the vendor is able to do by virtue of his own interest in, or power over, the property, or the concurrence of a party to the conveyance, which the vendor can compel, the requisition is as to the conveyance only (e); e.g., requiring the concurrence of mortgagees (f); a legal estate or outstanding term to be got in (g), or the appointment of trustees for the purposes of the S. L. Act (h). A requisition that a rent-charge should be paid off, or an objection taken that there are undisclosed easements, or that no title has been shown to the minerals, are matters relating to the title and not merely to conveyance.
Distinction between requisitions as
(u) Cf. General Conditions of 1925, No. 10.
(x) See Smith v. Wallace, 1895, 1 Ch. 385; 64 L. J. Ch. 240.
(y) Re Starr-bowkett, etc, (1889) 42 Ch. D. 375; 58 L. J. Ch. 651. But see Duddell v. Simpson, (1866) 2 Ch. p. 107; Quinion v. Horne, 1906, 1 Ch. 596.