Another question sometimes arising is whether the parties intended to sell and buy for a gross sum though the acreage is mentioned, or according to a certain price per acre though the acreage is not mentioned. If proper words are chosen to express the intention of the parties, there can be no difficulty. While we cannot dwell on the different phases of the question, we may state that the safer method is this: - If it is intended to sell a plot of unknown acreage at a fixed price per acre, it should be distinctly stated that the acreage is then unknown or uncertain, that the price is so much per acre, and that the exact acreage is to be determined by subsequent survey or agreement of the parties. If the sale is intended to be for a gross sum for the entire land irrespective of the number of acres, then, although the approximate acreage may be stated if insisted upon, it should be made to appear specifically that the price was fixed irrespective of the number of acres within the plot.
Closely involved in the description of the property and therefore discussed under that head, are certain rights or encumbrances known as easements, negative easements, and the like. To one of these we have already referred when the matter of party walls was spoken of. Another is a matter of restrictions. If the property is restricted and this is not stated in the contract for sale, the purchaser has a legal right to refuse to accept the proffered title. This is because restrictions, or as the matter is popularly known, "covenants and restrictions" - by which is usually meant covenants against the erection of certain nuisances, or restrictions against certain uses of the property - are encumbrances and what are known in law as "negative easements," and if not specified, give the purchaser the right to refuse to complete the contract and to demand damages as already mentioned.
Another factor in the passing of titles to real estate, especially in cities, is the matter of encroachments. The buildings on the land to be conveyed may encroach upon adjoining land, or buildings on adjoining lands may encroach upon the land to be conveyed. Then, too, the buildings or some addition thereto on the land to be conveyed may encroach upon the street. If the vendor has taken the wise precaution of having his property surveyed before entering into a contract of sale he may usually ascertain whether the proposed purchaser is willing to accept the property as shown by the survey, and make his contract accordingly.
The matter of encroachments is not only a fruitful source of litigation but a troublesome proposition besides. Encroachments (not provided against in the contract) must be substantial to warrant the refusal to take the title contracted for. That is, the law does not recognize immaterial encroachments. De minimis lex non curat. The difficulty, however, always is to make up one's mind as whether the encroachment is material. The question is often a very close one in the courts. Then, too, the matter is often affected by local statutes which, in effect, permit encroachments to a small extent if they have existed for stated periods, while local ordinances permitting encroachments of stoops, store windows, bay windows and the like to a limited extent upon the street, may also be found. Often the matter of encroachments may be obviated by so-called encroachment agreements. Such agreements really amount to a consent to the existence of the encroachment by the person who might proceed for its removal. Sometimes, but rarely, the encroachment agreement goes further and grants the soil encroached upon.
The encroachment agreement is usually employed where the buildings on the land to be conveyed encroach upon adjoining land. If buildings on adjoining land encroach substantially upon the land to be conveyed, the vendor is usually unable to convey all the land contracted for because, as is obvious, the part encroached upon cannot be conveyed except with the burden of the encroachment, and in some cases the vendor has no means of remedying the matter. Even in such cases, however, arrangements are sometimes made which enable the title to be passed to the satisfaction of the parties. Forms of encroachment agreements are given elsewhere.3 These remarks, which scarcely open up the subject of encroachments, must suffice for this chapter which, as has been stated, is not intended as a presentation of the law of real estate contracts but merely as a suggestive and advisory discussion in connection with the precautions to be observed in drawing a contract of sale.
"Railroad consents" should also be specified, though there is doubt whether a consent to the use of the street for railroad purposes would be a proper objection to a title, particularly if the railroad is in actual operation.