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.
(a) Madeley v. Booth, (1848) 2 De G. & Sm. 718; Beyfus and Masters' Contract, (1888) 39 Ch. D. 110.
(b) Stewart v. Alliston, (1815) 1 Mer. 26.
(c) Dimmock v. Hallett, (1866) 2 Ch. 21; 36 L. J. Ch. 146; but cf. Davenport v. Charsley, (1886) 54 L. T. 372; 34 W. R. 390.
2ndly. Where the property, as described, is not identical with that intended to be sold; thus where a vendor, intending to sell No. 2 in a street, described it as No. 4, the purchaser, though No. 2 was the same description of house as, and in better repair than, No. 4, recovered his deposit at law (f).
Or not identical;
3rdly. Where a material part of the property described has no existence, or cannot be found (g); or where no title can be shown to it. Where, for example, leasehold property held for a term of twenty-one years was put up for sale and described as including "a small yard and wash-house," and it was found that the yard and wash-house were held only on a yearly tenancy and at a separate rent, the purchaser recovered his deposit, notwithstanding a condition that error in the particulars should not annul the sale, but should be the subject for compensation (h). So, where the vendors have only a title to an undivided part of a small but material portion of the property (i); or where a term, which in the particulars purports to have twenty-six years to run, has, in fact, only nine (k); or where the vendor has no title to part of the property (l).
Or material part of it is wanting, or has no title;
4thly. Where there is a misdescription of a nature material to the due enjoyment of the property; as when, upon the sale of a lease of a house and shop, the particulars or its due enjoyment is materially affected; merely stated that the lease contained a restriction against certain specified trades being carried on upon the premises, whereas in fact several other trades were forbidden (m). So, where the property was described as "leasehold business premises," and the lease, of which inspection,was not offered, imposed serious restrictions in respect of the nature of the business (if any) which might be carried on (n); or, where on the sale of the residue of a term of which twelve and a-half years were unexpired, no notice was, taken of an option on the part of the lessors to determine the lease after five years had expired (o); so, also, where upon the sale of a piece of land described as "a first-rate building plot of ground," no mention was made of a right of way passing over it (p), or of an underground watercourse which third parties had liberty to open, cleanse, and repair, making satisfaction for damage thereby occasioned (q). So, where there was no disclosure of a right to use the kitchen of the tenement sold (r); or of a covenant materially restricting the user of the land (s); or where a reservoir and waterworks were described as yielding a specified yearly rent exclusively of the land and buildings, and it appeared that this rent consisted of water rents paid by the occupiers of houses separated from the reservoir by property over which the vendors had merely a right of waterway under a yearly licence (t); or where a manufactory in a town abounding in springs was described as "well supplied with water," when in fact there was only an artificial supply from a waterworks company upon payment of a heavy annual rate (u); or where property-is described as "freehold," and it is in fact subject to undisclosed restrictive covenants (x); or there is a verbal misrepresentation as to the effect of restrictive covenants (y).
(d) Evans v. Robins, (1862) 1 H. & C. 302; 31 L. J. Ex. 465.
(e) Powell v. Doubble, (1832) Sug. 14th ed. 29; and see Arnold v. A., (1880) 14 Ch. D. 270; and English v. Murray, (1884) 49 L. T. 35; 32 W. E. 84.
(f) Leach v. Mullett, (1828) 3 C. & P. 115.
(g) Robinson v. Musgrove, (1838) 2 Mo. & R. 92.
(h) Dobell v. Hutchinson, (1835) 3 A. & E. 355; 4 L. J. N. S. K. B. 201.
(i) Arnold v. A., (1880) 14 Ch. D. 270; Jacobs v. Revell, 1900, 2 Ch. 858; 69 L. J. Ch. 879.
(k) Nash v. Wooderson, (1885) 52 L. T. 49; 33 W. R. 301.
(l) Re Neale and Drew, (1897) 41 Sol. J. 274; Debenham v. Saw-bridge, 1901, 2 Ch. 98; 70 L. J. Ch. 525.
(m) Flight v. Booth, (1834) 1 Bing. N. C. 370; 4 L. J. N. S. C. P. 66; see Vignolles v. Bowen, (1847) 12 Ir. Eq. R. 194, 196; Stanley v. Mcgauran, (1882) 11 L. R. Ir. 314.
(n) Re Davis and Cavey, (1888) 40 Ch. D. 601; 58 L. J. Oh. 143; Re Haedicke and Lipski's Contract, 1901, 2 Ch. 666; Allen v. Smith, 1924, 2 Ch. 308.
(o) Weston v. Savage, (1879) 10 Ch. D. 736; 48 L. J. Ch. 239.
(p) 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.
(q) Shacklelon v. Sutcliffe, (1847) 1 De G. & S. 609; but see Re Brewer and Hankin, (1899) 80 L. T. 127; Schwann v. Cotton, 1916, 2 Ch. 120. As to the importance of such an easement, see Goodhart v. Hyett, (1883) 25 Ch. D. 182; 53 L. J. Ch. 219.
(r) Heywood v. Mallalieu, (1883) 25 Ch. D. 357; 53 L. J. Ch. 492.
(s) Nottingham Brick Co. v. Butler, (1886) 16 Q. B. D. 778; 55 L. J. Q. B. 280; Re Ebsworth and Tidy, (1889) 42 Ch. D. 23; 58 L. J. Ch. 665; Re Cox and Neve, 1891, 2 Ch. 109; unless such covenant has been waived: Hepworth v. Pickles, 1900, 1 Ch. 108; 69 L. J. Ch. 55.
(t) Price v. Macaulay, (1852) 2 D. M. & G. 339.
5thly. Where the misdescription as to quantity is so serious that it is no longer a fit subject for compensation; as where the estate was said to contain "14 acres more or less," and it was found to contain 27 acres (z); or where the acreage was given as 21,750 acres, when it was in fact only half that quantity (a); and there may be cases where from the use intended to be made of the property by the purchaser, or from its being material to the enjoyment of other adjoining property of the purchaser (b), or from other circumstances, even a trifling deficiency in quantity may not be a fit subject for compensation.