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.
(m) Worley v. Frampton, (1846) 5 Ha. 560; 16 L. J. Ch. 102; Onslow v. Lord Londesborough, (1852) 10 Ha. 67. The General Conditions of 1925 provide that on a sale of settled land the vendor, who is an absolute owner subject to overreachable interests, shall give the covenants implied by reason of his being expressed to convey as beneficial owner, and that in other cases of the sale of settled land the vendor shall only be required to give the covenants implied by reason of his being expressed to convey as trustee or personal representative.
It is usual to stipulate that the rents will be received, and the outgoings (mm) discharged, by the vendor up to the day fixed for completion, and as from that date by the purchaser, and that if necessary an apportionment of such rents and outgoings shall be made between them. It may be desirable to add, especially when the property is in hand, that the outgoings to be paid by the purchaser shall include all rates made before, but not demanded till after, completion (n); and if any notices have, prior to the sale, been received from the Local Authority to pave or sewer the adjoining road, a condition should be inserted with reference to the same (p).
Apportionment of accruing rente.
As to notices under Public Health Act, etc.
In Carlish v. Salt (p) it was held that the service of a party wall notice under the London Building Act, and the issue of the usual award throwing upon the owner the liability to contribute to the cost of the works when completed, are material facts which a vendor is under a duty to disclose to an intending purchaser.
Where land subject to a rent-charge is sold in lots, it has been usual to stipulate that each purchaser shall pay a specified portion of the rent-charge. But redemption and apportionment of rent-charges is facilitated by the L. P. Act, 1925, s. 192 of which provides that an order for the apportionment of tithe rent-charge may be made by the Minister of Agriculture, under ss. 10 - 14 of the Inclosure Act, 1854, on the application of any person interested, without the concurrence of any other person; while s. 191 contains provisions under which rent-charges (other than tithe rent-charges) can be redeemed or apportioned, on application to the Minister of Agriculture. The obligations and rights of a purchaser on a sale of part of land subject to a rent-charge are now provided for (subject to any express agreement) by ss. 77 and 190 of the L. P. Act. 1925, and Part VIII. of Sched. II., thereto.
Apportionment of rent-charge.
(mm) See sup. p. 119, n. (k).
(n) See Midgley v. Coppock, (1879) 4 Ex. D. 309; 48 L. J. Ex. 674.
(o) See Re Leyland and Taylor, 1900, 2 Ch. 625; 69 L. J. Ch. 764; and see Re Allen and Driscoll, 1904, 1 Ch. 493; 1904, 2 Ch. 226; 73 L. J. Ch. 382. (p) 1906, 1 Ch. 335.
Where property is sold in lots, if any part comprised in two or more lots be subject to a lease at one entire rent, the consent of the tenant to an apportionment of the rent should, if possible, be obtained before the sale. Where the consent of the tenant cannot, be obtained, the conditions should provide for its equitable apportionment; and it should be specified that no legal apportionment will be made, and that accordingly the concurrence of the tenant to an apportionment shall not be required (g).
Apportionment of rent service.
Where the reversion on a lease is severed, and the rent is legally apportioned, the assignee of each part has now, in respect of the apportioned rent allotted to him, the benefit of all conditions or powers of re-entry for non-payment, and of every other condition contained in the lease, as if they had been reserved to him as incident to his part of the reversion in respect of such apportioned rent (r).
Apportionment of rent on severance of reversion.
Upon the sale of land used for agricultural purposes, it may be often necessary to insert a condition as to the growing crops being taken and paid for by the purchaser; or as to allowance being made for seed, manure, tillage, and such other things as, according to the local custom, are usually matters for allowance between an outgoing and an incoming tenant. If the property is in lease at the time of sale, the purchaser will be subject, in this respect, to the rights of the tenants; if, however, it is in hand, and nothing is said as to the crops, they will belong to him from the day fixed for completion; and it is conceived that the vendor will not be at liberty previously to remove them in an immature state: nor, in the absence of stipulation, could the vendor make any claim in respect to seed, manure, tillage, etc.
Right to, if no condition.
(q) Walter v. Maunde, (1820) 1 J. & W. 181; Bliss v. Collins, (1822) 5 B. & Ald. 876. See the L. P. Act, 1925, s. 141; 1 Wolst. & Cherry, p. 372 et seq.; Mayor of Swansea v. Thomas, (1882) 10 Q. B. D. 48; Salts v. Battersby, 1910, 2 K. B. 155; Mitchell v. Mosley, 1914, 1 Ch. 438; and see s. 190 (3) and (4) of the L. P. Act, 1925.
(r) L. P. Act, 1925, s. 140, re-enacting Conv. Act, 1881, s. 12.
There should be a condition as to fixtures (s), if the purchaser is to pay for any. In the absence of express stipulation, common fixtures (t), including such as are not strictly fixtures, will be held to be included in a contract for sale; and will pass by the conveyance, unless a contrary intention can be collected therefrom (u).
Separate payment for timber by the purchaser, if intended, must be provided for by the conditions (x). The effect of the general condition has been held to be destroyed, as to lots A. and B., by a particular statement being appended to the descriptions of lots C. and D., that the timber on those lots was to be paid for (y).
The expression "timber," which means trees fit to be used in building and repairing houses (z), includes oak, elm, and ash, everywhere; and, by local custom, beech (a), and various other trees, even trees which are primarily fruit trees, as cherry, chestnut, and walnut (b); no wood, however, is timber until of twenty years' growth (c). As a general rule, pollards seem not to be timber; if sound, however, they may be timber by local custom. A grant of "timber and timber-like trees "includes not only ordinary timber, and such trees as by local custom are considered timber, but even "thinnings," and the right of determining what are proper thinnings (d); so also it seems to include sound pollards (e). An exception in a lease of "all timber and other trees, but not the annual fruit thereof," would seem not to include garden or orchard fruit trees, unless by local custom (f); the term "fruit" being considered to refer to the mast of timber trees.