The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The particular issue has not previously been considered. The section had been enacted after case where the seller had been refused specific performance and the court had found itself unable to order the return of the deposits. ‘Parliament by section 49(2) has conferred jurisdiction on the court, in any action for the return of the deposit, to order the repayment of that deposit. That is a jurisdiction, it seems to me, which it is not open to a purchaser to waive. Indeed, bearing in mind the context of the section and how it has been interpreted, as akin to a power of the court to grant equitable relief against forfeiture, by necessity the jurisdiction, when exercised, will always interfere with the contractual rights agreed between the parties. It seems to me it would be inconsistent, if the legislature has conferred upon the court the entitlement to interfere with the contractual rights of the parties, for the legislature at the same time to allow for the parties to contract out of that interference. Of course, Parliament could do that expressly, but it has not done so.’
Judges:
Steinfeld QC
Citations:
[2007] EWHC 1694 (Ch), Times 04-Apr-2008
Links:
Statutes:
Law of Property Act 1925 49(2)
Jurisdiction:
England and Wales
Citing:
Cited – Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – Universal Corporation v Five Ways Properties Limited CA 1978
The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude . .
Cited – Re Wynn (deceased) 1952
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public . .
Cited – Schindler v Pigault 1975
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2).
Held: He was entitled to the repayment of the deposit on the first ground. The court went . .
See Also – Aribisala v St James’ Homes (Grosvenor Dock) Ltd ChD 14-Mar-2008
The claimant contracted to buy two apartments from the defendant. The contract purported to exclude section 49. . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 17 July 2022; Ref: scu.266949