A property was sold subject to the National Conditions of Sale (19th edition). Condition 17(1) of the conditions provided that ‘no error, the statement or omission in any preliminary answer concerning the property . . shall annul the sale’. There had been a pre-existing boundary dispute with a neighbour which was not disclosed in the course of the preliminary enquiries before contract.
Held: The vendor was not entitled in equity to rely on this condition. The National Conditions of sale do not exclude liability for fraud.
As to the 1967 Act: ‘I do not regard condition 17 as satisfying that requirement in the circumstances of this case. Another way of putting it is that Mrs Boyle has not shown that it does satisfy that requirement.’
The court also refused relief for specific performance in view of the claimant’s innocent misrepresentation, even if that mistake was unilateral and not induced by the claimant’s misrepresentation: ‘It seems to me that the equitable barrier to specific performance extends not merely to matters of title where the vendor has failed to disclose defects known to him in his own title, but also to misrepresentation where the vendor has, albeit innocently, misdescribed the property or made some other misrepresentation about the property, when the true facts were within his own knowledge. A trifling misrepresentation where the truth would have had no effect on the purchaser and the purchaser would have nonetheless entered into the contract, rests in a different category because there the contract has not been induced by the misrepresentation, but here, as I find, the purchaser would reasonably have refused to contract unless the boundary dispute, if disclosed to him, had first been resolved. Therefore, it seems to me that on equitable principles and consistently with the authorities I have mentioned, and consistently also with the fairly recent decision of Walton J in Faruqi v English Real Estates Ltd [1979] 1 WLR 963, the vendor, Mrs Boyle, is not entitled in equity to rely on condition 17 in the circumstances of this case.’
Dillon J
[1982] 1 WLR 495, [1982] 1 All ER 634
Misrepresentation Act 1967 3
England and Wales
Cited by:
Cited – Cleaver and Others v Schyde Investments Ltd CA 29-Jul-2011
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.443307 br>