The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because undisclosed covenants variously restricted future development of the land.
Held: The standard solicitor’s undertaking to obtain a good and marketable title was not a warranty of title, but an acknowledgement of the use to be made of the title. A defect in title which was not serious enough to allow a rejection of a title was insufficient to leave the title short of being good and marketable. ‘The Bank submits that this means ‘a freehold title free from incumbrances’; and that such a title is better than ‘a good title’ since it must be both ‘good’ (in the sense of being without blemish) and ‘marketable’ (in the sense of relating to property which is readily saleable). Both propositions are quite untenable. They are the product of a growing unfamiliarity with the language which was once the common currency of conveyancers of unregistered land. They confuse the subject-matter of the sale (what has the vendor agreed to sell?) with the vendor’s duty to prove his title to the subject-matter of the sale (has the vendor sufficiently deduced title to what he has agreed to sell?) ‘
and ‘The expression ‘good marketable title’ describes the quality of the evidence which the purchaser is bound to accept as sufficient to discharge this obligation. It says nothing about the nature or extent of the property contracted to be sold to which title must be deduced. The expression is a compendious one which describes the title and not the property. It is used in contradistinction to ‘a good holding title’, by which is meant a title which a willing purchaser might reasonably be advised to accept, but which the Court would not force on a reluctant purchaser. ‘
Millet LJ, Pill LJ, May LJ
Gazette 28-May-1998, Gazette 24-Jun-1998, Times 15-Jun-1998, [1998] EWCA Civ 868, [1998] 3 All ER 213, [1999] QB 309
Bailii
England and Wales
Citing:
Appeal from – Barclays Bank Plc v Weeks Legg and Dean ChD 26-Feb-1996
The failure by a conveyancer to disclose a right of way either to his lay client or to the lender was not a breach of his undertaking to acquire a good and marketable title. The Solicitor had applied the money in accordance with the undertaking even . .
Cited – Timmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
Cited – Re Stirrup’s Contract 1961
The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, . .
Cited – MEPC Ltd v Christian-Edwards HL 8-Nov-1979
The testator had granted an option to his son, and in his will directed that if he did not exercise it, he should be granted a lease. A later deed then recited that the will had been varied by an agreement. That deed was referred to indirectly many . .
Cited – Pyrke v Waddingham ChD 1852
The seller sought specific performance of the contract for the sale of his land. The buyer said that the title shown was defective.
Held: Though the court found favour with the title, this had not been on any general rule of law, but on the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Cato v Thompson 1882
The phrase ‘a good marketable title’ must mean ‘to the property contracted to be sold’. It can have no other meaning. Where the contract is an open contract which describes the property in general terms without mentioning whether it is freehold or . .
Cited – Manning v Turner 1957
Where the title shown by a seller of land is less than perfect, the question is whether the risk to the purchaser is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an . .
Cited – Re Spollon and Long’s Contract ChD 1936
The court considered the nature of title which could be imposed on a reluctant purchaser of land. One of the title deeds was not properly stamped. This defect was considered a matter of importance to the purchaser because if the title were . .
Cited by:
Cited – Platform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
Cited – Cornelius, Regina v CACD 14-Mar-2012
The defendant appealed against his conviction for fraud under the 2006 Act, saying that the judge had wrongly failed to give a Ghosh direction. As a solicitor he had organised a scheme for buying properties, obtaining finance by the nomination of . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Land, Professional Negligence
Leading Case
Updated: 01 November 2021; Ref: scu.144347