Special Conditions 7.1.1 & Encroachment
1. Special Conditions
Clause 7.1.1
Clause 7.1.1 of this contract is deemed to be deleted.
This clause allows a Vendor to rescind the contract when the Purchaser brings a claim against the Vendor for more than 5% of the purchase price. This clause is commonly reduced to a lesser amount or, as in this case, deleted altogether. The consequence upon John is that if he were to make a claim, for example; for an encroachment not clearly disclosed (other than a claim for delay) against the Vendor, no matter how slight, the Vendor has the option to rescind. The Vendor must serve notice of this intention in accordance with 7.1.2, and John then as the option to waive his claim (so that he may still purchase the property without compensation) within 14 days after the Vendor’s notice in accordance with 7.1.3.
Encroachment
The Purchaser acknowledges that the garage erected on the subject land encroaches onto the land adjoining to the west by up to 0.50 metres. The Purchaser cannot make any objection, requisition or claim in respect of the encroachment.
This special condition is an attempt to exempt a Purchaser from making an objection, requisition or a claim in respect of the encroachment of the garage. On its face it appears that John will be unable to object, requisition or claim in relation to the encroachment.
This encroachment may constitute a defect in title as the vendor cannot pass to John the part of the land the subject of the encroachment.
In the case of Flight v Booth the Court of Common Pleas held that because there had been a substantial misdescription, the purchaser was entitled to terminate the contract, notwithstanding the non-annulment clause. Further the purchaser was able to recover his deposit. Cases have come to apply the rule in Flight v Booth where there has been a material and substantial misdescription as such that the purchaser would not have purchased the property.
In John’s case however there appears to be no
Clause 7.1.1
Clause 7.1.1 of this contract is deemed to be deleted.
This clause allows a Vendor to rescind the contract when the Purchaser brings a claim against the Vendor for more than 5% of the purchase price. This clause is commonly reduced to a lesser amount or, as in this case, deleted altogether. The consequence upon John is that if he were to make a claim, for example; for an encroachment not clearly disclosed (other than a claim for delay) against the Vendor, no matter how slight, the Vendor has the option to rescind. The Vendor must serve notice of this intention in accordance with 7.1.2, and John then as the option to waive his claim (so that he may still purchase the property without compensation) within 14 days after the Vendor’s notice in accordance with 7.1.3.
Encroachment
The Purchaser acknowledges that the garage erected on the subject land encroaches onto the land adjoining to the west by up to 0.50 metres. The Purchaser cannot make any objection, requisition or claim in respect of the encroachment.
This special condition is an attempt to exempt a Purchaser from making an objection, requisition or a claim in respect of the encroachment of the garage. On its face it appears that John will be unable to object, requisition or claim in relation to the encroachment.
This encroachment may constitute a defect in title as the vendor cannot pass to John the part of the land the subject of the encroachment.
In the case of Flight v Booth the Court of Common Pleas held that because there had been a substantial misdescription, the purchaser was entitled to terminate the contract, notwithstanding the non-annulment clause. Further the purchaser was able to recover his deposit. Cases have come to apply the rule in Flight v Booth where there has been a material and substantial misdescription as such that the purchaser would not have purchased the property.
In John’s case however there appears to be no
Bibliography: Text Books Skapinker, Diane & Lane, Patricia; Sale of Land in NSW Commentary and Materials, 5th Edition, Lawbook Co, 2010. 2005 Standard Form Contract For Sale of Land (May 2011) Journals and Articles