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.
The vendor is prima facie responsible for his title deeds being properly stamped; so that, if there is any doubt of their being so, he should protect himself (l) as to documents executed before the 17th May, 1888 (m). So, too, where land is in a register county, he should, in case of doubt, guard against the documents being unregistered (n). And where the condition is in the ordinary form, viz., that no objection shall be taken on account of any document being unstamped or insufficiently stamped, or not being registered, the purchaser cannot rescind the contract, though the vendors know there are unregistered documents, and that the defect is irremediable (o).
Unstamped and unregistered documents.
(f) A.-g. v. Tomline, (1880) 15 Ch. D. 150. . (g) White v. Wdkley, (1858) 4 Jur. N. S. 988; 26 Beav. 17; Tabor v. Godfrey, (1895) 64 L. J. Q. B. 245.
(h) A.-g. v. Tomline, (1880) 15 Ch. D. 150.
(i) Lord Hastings y. Saddler, (1898) 79 L. T. 355.
(k) S. 44 (6) of the L. P. Act, 1925, re-enacting s. 3 (2) of the Conv. Act, 1881.
(kk) As to what manorial rights and liabilities are not normally extinguished, see L. P. Act, 1922 (as amended), 12th Sched., paras. (4) - (7), and s. 138 (12).
Sect. 44 of the L. P. Act, 1925, makes thirty years the statutory length of title under an open contract, in place of forty years, and provides (p) that under a contract to grant or assign a term of years, whether derived out of a freehold or leasehold estate, the intended lessee or assignee is not to be entitled to call for the title to the reversion, whether freehold or leasehold. These provisions do not preclude a purchaser from raising aliunde the objection that the title to the freehold is bad, and if he raises a distinct and tangible issue, he can call for production of the documents relevant thereto (q).
The vendor of leaseholds should not refer to the covenants in the lease as "usual"; the proper course is, to produce an abstract or copy of the lease at the time of, and offer opportunities of inspection before, the sale, and to stipulate that the purchaser shall be deemed to have full notice of the contents of the lease, whether he inspects it or not (r). The following have been held not to be "usual" covenants (s); a covenant restrictive of the right of alienation (t); a covenant not to mow meadow land more than once a year (u); a condition of re-entry for breach of covenant other than for non-payment of rent (x); a covenant that every assignment or underlease shall be left with the landlord's solicitor, and a fee paid for registration (y).
Covenants in lease, how to be noticed.
(l) Smith v. Wyley, (1862) 16 Jur. 1136; Coleman v. C, (1898) 79 L. T. 66; Whiting to Loomes, (1881) 17 Ch. D. 10; 50 L. J. Ch. 463; but see and distinguish Re Birkbeck Society, (1883) 24 Ch. D. 119; 52 L. J. Ch. 777; Finance Act, 1895, s. 12, which applies to personal as well as real property: Eastbourne Corp. v. Att.-gen., 1904, A. C.155.
(m) He cannot protect himself as to those executed after the 16th May, 1888; see Stamp Act, 1891, s. 117.
(n) See Furlong v. Bogan, (1893) 31 L. R. Ir. 191.
(o) Girling v. G., (1886) W. N. 18.
(p) Re-enacting V. & P. Act, 1874, s. 2, and Conv. Act, 1881,8. 3 (1).
(q) Jones v. Watts, (1890) 43 Ch. D. 574; and see Leooy v. Mogford, (1856) 2 Jur. N. S. 1085.
(r) Re White and Smith, 1896, 1 Ch. 637; 65 L. J. Ch. 481;
Under s. 45, sub-ss. (2) and (3) of the L'. P. Act, 1925, re-enacting s. 3, sub-ss. (4) and (5) of the Conv. Act, 1881, a purchaser of leaseholds is bound to assume, unless the contrary appears, that the lease or underlease, and every superior lease, was duly granted; and, on production of the receipt (z) for the last payment due for rent (a) under the lease or underlease, before the date of actual completion of the purchase, that all the covenants and provisions of the lease or underlease have been duly performed and observed up to the date of actual completion; and further, that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date. The words "unless the contrary appears," restrict the operation of these provisions, and the receipt is not conclusive, but is prima facie evidence only (b). Hence provision should be made for the case of breaches within the knowledge of the vendor, which he has reason to believe have been, or are likely to be, waived by the lessor (c), and also for cases where there is a peppercorn rent. But the purchaser will be bound, even though it appears that there is a continuous breach of covenant which has not been waived by the lessor, if he was aware of the fact when he signed the contract; unless the contract in terms provides that a good title shall be shown (d).
Purchase of leaseholds.
Evidence of performance of covenants.
Midgley v. Smith, (1893) W. N. 120; Re Haedicke and Lipski's Contract, 1901, 2 Ch. 666; Molyneux v. Hawtrey, 1903, 2 K. B. 487; Allen v. Smith, 1924, 2 Ch. 308.
(s) As to "usual" covenants, see Woodfall, 22nd ed. 142 - 146.
(t) Hampshire v. Wiekens, (1878) 7 Ch. D. 555; Bishop v. Taylor, (1891) 60 L. J. Q. B. 556; Re Lander and Bagley, 1892, 3 Ch. 41; 61 L. J. Ch. 707.
(u) Hyde v. Warden, (1877) 3 Ex. D. 72, 82; 47 L. J. Ex. 121.
(x) Hodgkinson v. Crowe, (1875) 10 Ch. 622; 44 L. J. Ch. 680; Re Anderton and Milner, (1890) 45 Ch. D. 476; 59 L. J. Ch. 765.
(y) Brookes v. Drysdale, (1877) 3 C. P. D. 52.
(z) I.e., from the immediate lessor: Re Higgins and Percival, (1888) 57 L. J. Ch. 807. See General Conditions of 1925, No. 15 (7).
(a) "Rent" does not apply to a peppercorn rent: Re Moody and Yates, (1885) 30 Ch. D. 344; 54 L. J. Ch. 886.
(b) Re Highett and Bird, 1902, 2 Ch. 214; 1903, 1 Ch. 287; 72 L. J. Ch. 220. Cf. Re Taunton, 1912, 2 Ch. p. 385.