Conveyancing

Unit 1
Definition- Conveyancing is the mode of transferring or assuring interests in property. It involves the
drafting of legal documents to give effect to all manner of dealings in property whether it may be a
conveyance, gift, partition, assent, mortgage, etc. It involves investigating and advising on title to
properties as well as advising parties to a conveyancing transaction on their rights and obligations.

Dominica has two conveyancing systems, the Common Law System/Unregistered conveyancing
system and the Registered Conveyancing System.

Contract for sale of land and preliminary matters

 Conveyancing transaction made up of 3 stages: (1) Pre-contract stage- preliminary enquiries and
searches; (2) Contract stage- a contract for sale is executed; (3) Conveyancing stage- the assurance of
the legal estate in the Purchaser.

Overview of a Conveyancing Transaction re Unregistered System of

Title
 Taking of instructions which should be signed by clients ending in retainer: Vendor & Purchaser
 Preparation of contract for sale: Vendor
 Pre-contract searches (structural survey & physical inspection etc) and enquiries: Purchaser
 Approval of draft contract: Purchaser
 Execution of contract: Vendor & Purchaser
 Investigation of title: Purchaser
 Requisitions on title (if any): Purchaser
 Advising client on results of searches i.e. title: Purchaser
 The preparation of conveyance: Purchaser
 Approval of conveyance: Vendor
 Completion documents- any documents required to complete a particular type of conveyancing
transaction- includes source of funds, identification of parties etc.

Mungalsingh v Juman (2015) UKPC 38

Facts: The parties entered into an agreement, dated 13 September 2006, under which the appellant
agreed to sell to the respondent a property (the agreement). The respondent paid a deposit. On 28
December, the appellant's attorney wrote to the respondent referring to the agreement, stating that the
respondent had orally agreed to complete within 90 days of 13 September, and calling upon him to pay
the balance of the purchase and complete the transaction on or before 31 January 2007, as to which
time would be of the essence. There was no reply until 14 February, when the respondent's attorney
wrote saying that he wished to complete, but the appellant's failure to provide the water and sewage
authority certificate (WASA certificate) and the land tax receipt (together, the documents) was causing
the delay. In May, the appellant's attorney wrote saying the transaction was at an end and returning part
of the deposit. The partial return of the deposit was not accepted by the respondent, who then
investigated the position with regard to the water rates and land tax owing in respect of the property.
He obtained the WASA certificate and discovered that there was outstanding land tax, which he paid in
July. The respondent was then prepared to complete the agreement and, on discovering that the
property was being re-marketed by the appellant, he issued proceedings seeking specific performance
of the agreement.
 Held: There is no distinction between a 'good title' and a 'good and marketable title'. A good
marketable title is what the court would require before it forced a property on an unwilling
buyer. Whether documents have to be produced by a vendor and, if so, whether their production
was a matter of title, had to be governed, to some extent, by the practice of conveyancers in the
jurisdiction. Unpaid water rates and land tax could lead to distraint on, or even the sale of, the
relevant property. Therefore, the vendor has to produce documents showing that these were paid
before good title was shown. If he does not produce the documents, he should not serve notice to
complete, making time of the essence, as he has not shown good title.

Further: The Court of Appeal had correctly concluded that the judge had reached a decision which
had been correct in law and which should, therefore, be upheld. In the present case, the evidence of C,
coupled with the fact that unpaid water rates and land tax could lead to distraint on, or even the sale of,
the relevant property, rendered it impossible for the appellant to challenge the judge's conclusion that,
in Trinidad and Tobago, the vendor had to produce the documents before good title was shown.
Further, the evidence of C, coupled with the fact that completion meetings were no longer common
practice, at least in England and Wales, rendered it hard to argue that the appellant could have
contended that the production of the documents should have waited until a completion meeting. In
those circumstances, it had not been open to the appellant to serve notice to complete, making time of
the essence, as he had purported to do on 28 December 2006, as he had not shown good title by that
date

 Execution of the conveyance: Vendor & Purchaser

 Stamping of the conveyance: Payment of Stamp Duty by Vendor
 Registration of the conveyance: Purchaser
 Obtaining the certified copy: Purchaser

Duties of AAL with respect to Money Laundering

An AAL engaged in the purchase or sale of real property must establish the true identity of their clients
by means of reliable documentation, and, if acting for the purchaser, should request a source of funds
declaration to help combat money laundering;
Purrunsingh v A’Court & Co. (A Firm) [2016] EWHC 789 – as the defendant conveyancers’ firm
failed to inform the claimant that defendant solicitors’ firm could not confirm, from the information
available to them, a link between the [fraudster] vendor and the property, the claimant’s claim for
breach of contract and negligence succeeded as the defendant conveyancers’ firm failed to
discharge the burden that it acted reasonably.
Facts: The claimant sought to purchase property. A fraudster, D, retained the first defendant solicitors'
firm, ACC, to act on his behalf in the sale of the property. He falsely claimed to be the owner and
provided false documentation to support his claims. D stated that the property was vacant, and that he
lived elsewhere. He retained the second defendant conveyancers' firm, HOC. A potential purchaser, C,
was found, but D pulled out of the negotiations when C asked questions requiring D to confirm the
details of his employment. The claimant was the second potential purchaser. The claimant made
payments in October 2012 to purchase the property. By the time that the fraud was discovered, the
whole of the purchase price (around £470,000) had been paid by the claimant to HOC, by HOC to
ACC, and by ACC to D's account. It was common ground that genuine completion of the transaction
had not taken place and that, had ACC attempted to contact D at the property, they would have made
contact with the real owner and the fraud would have failed.  In April 2014, judgment was entered for
the claimant against ACC for breach of trust. HOC was added as a defendant. It admitted breach of
trust but sought relief under s 61 of the Trustee Act 1925, which provided that, where a trustee was or
might be personally liable for any breach of trust, but had acted honestly and reasonably and ought
fairly to be excused for the breach of the trust, the court could relieve him either wholly or partly from
personal liability for the breach.
Held:
(1) HOC had been in breach of contract and/or duty to the claimant in failing to inform him that:
(i) the additional enquiry had been raised;
(ii) that the purpose of that had been to attempt to establish a link between the property and the
apparent vendor, and
(iii) the answers received showed that:
(a) ACC had no documents whatsoever relating to that property, save for those already
received;
(b) ACC had no personal knowledge of D, and
(c) ACC had not verified, and could not confirm from the information available to them,
or at least had not confirmed from the information available to them, a link between the vendor
and the property; and (
d) in consequence, there had been a risk in proceeding with the purchase. Had that
information been supplied to the claimant by HOC, it would have been for the claimant either
to decide either not to proceed or to seek advice from HOC whether to proceed. It was close to
inconceivable that he would have proceeded had been advised as he should have been. In those
circumstances, the claim for breach of contract and negligence succeeded (see [49], [52] of the
judgment).
HOC had failed to discharge the burden of proving that it had acted responsibly, applying the
test established by the case law, and it was not entitled to rely on s 61 of the 1925 Act (see [53]
of the judgment).

(2) ACC had failed to discharge the burden resting on it to establish that it had acted reasonably in the
circumstances and thus it was not entitled to the benefit of s 61 of the Act. A reasonable solicitor in the
position of ACC's representative, carrying out client due diligence and adopting a risk-based approach,
ought clearly to have considered whether D had been the owner of the property that he was attempting
to sell in order to assess whether the transaction was a lawful one.
(3) Regarding contributions, it was clear that HOC and ACC had to bear equal liability for the loss.

Dreamvar v Mischon de Reya (2018)(C of A) UK –

Facts: A fraudster impersonating the actual owner of a piece of property purported to sell the property
to the claimant. In exchange for the purchase price the fraudster gave the claimant a forged transfer
document. When the fraud was discovered the fraudster and the money could no longer be found. The
Claimant sought to recover the loss it suffered from the solicitors instructed by it on the purported
purchase and also the solicitors instructed by the fraudster for negligence and breach of trust.
Held: The court held that MdR had been in breach of trust by paying away the purchase money to the
vendor's solicitors, in circumstances where there had not been, nor could there had been, a genuine
completion of the contract of sale, which was in any event a nullity.

Pre-contract stage
Re Forsey and Hollebone’s Contract (1927) 2 Ch 379 – a clause of the contract was for the estate to
be free from incumbrances – the property was sold but unbeknownst to both parties the property was
included in the area proposed to be dealt with by the local authority by a resolution, thus prompting
the purchaser to seek repayment of the deposit – the court held that the resolution did not impose
any subsisting incumbrance on the land.
Facts: By clause 1 of a contract, dated December 10, 1926, the purchaser agreed to purchase certain
premises "for an estate in fee simple absolute, free from incumbrances," except as thereinafter
mentioned. Clause 2 provided that the property was sold subject to the restrictive and other covenants
contained or referred to in a conveyance, dated September 28, 1925. The deposit was paid by the
purchaser on the same day. Shortly before the date fixed for completion the purchaser discovered that
the property was included in the area proposed to be dealt with by the local authority by a resolution
dated October 26, 1925, under s. 2 of the Town Planning Act, 1925, which resolution had been
registered as a land charge under the Land Charges Registration Act, 1925, in January, 1926. Neither
the vendor nor the purchaser was aware of the existence of this resolution at the date of the contract.On
an application by the purchaser for a declaration that the vendor had not shown a good title to the
property sold in accordance with the contract and for repayment of the deposit:-

Held: the mere passing and registration of the resolution by the local authority did not operate to
impose on the land any subsisting incumbrance within the meaning of clause 1 of the contract; that the
sections of the Act of 1925 showed that the purpose of the registered resolution was not so much to
impose restrictions on the land as to prevent unreasonable claims being made by persons who bought
up land subject to the scheme; and that there was nothing like an interference with the property which
made it different from that which was contracted to be sold.

that even if the registered resolution was an incumbrance, it was an incumbrance of such a nature that
the purchaser must, under s. 198 of the Law of Property Act, 1925, be deemed to have contracted with
actual notice of its existence, and was therefore precluded from refusing to complete the contract.

De Lassalle v Guilford (1901) 2 KB 215

The terms of a lease were arranged, but the plaintiff (intended lessee) refused to hand over the
counterpart that he signed unless he received an assurance that the drains were in order. The defendant
verbally represented that they were in good order, and the counterpart was thereupon handed to him.
The lease contained no reference to drains. The drains were not in good order, and an action was
brought to recover damages for breach of warranty:-
Held: the defendant’s representation was a warranty which was collateral to the lease, and for breach
of which an action was maintainable. To create a warranty no special form of words is necessary. It
must be a collateral undertaking forming part of the contract by agreement of the parties express or
implied, and must be given during the course of the dealing which leads to the bargain, and should then
enter into the bargain as part of it.

Gilchester Properties v Gomm (1948) 1 All ER 493

During correspondence relating to the proposed sale of certain leasehold premises comprising four
flats, the vendor's solicitors stated in answer to enquiries by the purchasers that the total rents payable
by the tenants was £449. This was an innocent misrepresentation on their part, and, in fact, the rents
amounted to less than £449. The purchasers claimed specific performance of the contract and an
abatement of £550 in the purchase price.

Held: the statements complained of were inducements to the contract and did not constitute any part of
the contract or a warranty or a collateral agreement. The form of relief claimed was inappropriate as it
would amount to an award of damages in respect of an innocent misrepresentation.

Hill v Harris (1965) 2 QB 601 – despite not having the authority to do so, a representative of the
defendant estate agents gave permission to the plaintiffs that they could use the premises as a
tobacco shop under the sub-lease – the head lessor later prohibited such use prompting the plaintiff
to sue for damages- the court held that the defendants gave no express warranty as the
representative had no authority to enter into any contractual arrangement with the plaintiff
The plaintiff inquired of a representative of the estate agents as to whether under the sub-lease he use
the premises as a tobacco and confectionary shop to which the representative answered in the
affirmative. However, the representative had no actual authority to give any warranties. The plaintiff’s
solicitors wrote to the defendant’s solicitors bringing their attention to the beforementioned. The
defendant’s solicitors never replied to that part of the letter but submitted a draft sub-lease with a
clause permitting the use of the premises as a retail tobacco and confectionary shop. However, by the
head lease the defendants could not, without consent of the head landlord, use the shop for any
business other than that of boot and shoe makers and dealers. The sub-lease having been executed, the
plaintiff went into possession and for some time carried on the business of a confectionery and tobacco
retailer. The head landlord, in the exercise of his powers under the head lease, prohibited the sale of
tobacco in the shop, as a result of which the plaintiff sustained a considerable loss of business. The
plaintiff brought an action against the defendants for damages.
The court held that (1) there was no term to be implied from the letting of premises for a particular
purpose that the premises could lawfully be used for that purpose and, therefore, the plaintiff could not
rely on any implied warranty.
(2) That the defendants had not given any express warranty since (a) the estate agent’s representative
had no actual authority to enter into any contractual arrangement with the plaintiff, collateral or direct,
and the ostensible authority of estate agents did not ordinarily extend to the giving of warranties; (b)
the failure of the solicitors to reply to an assertion made in the course of negotiations for a sub-lease
could not constitute a warranty and (c) the submission of a draft sub-lease was no more than an offer to
negotiate a sub-lease on the terms of the draft accordingly, there being no express or implied warranty,
the plaintiff's claim failed.
 The court also found that the solicitors acting for the plaintiff were negligent in not calling for and
inspecting the head lease and would be liable to the plaintiff for the measure of damages as he would
have obtained had he established a warranty by the defendants.
Leyland and Taylor’s Contract (1900) 2 Ch. 625 –
The omission by a vendor, without fraudulent intent, to disclose, before sale, to the purchaser of town
leasehold property the fact that he, the vendor, had been served by the local authority with the usual
notices under the Public Health Act, 1875, to pave, &c., the street fronting the premises, is not such an
"omission in the particulars" tending to depreciate the value of the property as to entitle the purchaser,
if he completes his purchase, to compensation under the usual general condition, where the works are
not executed by the local authority, and the expenses thereof do not therefore become a charge on the
premises, until after the completion of the purchase.

Pre-contract enquiries
 There is no binding obligation to answer preliminary enquiries or to prove title before contract. An
answer to a question before contract will be deemed a representation. They do not form part of the
contract and cannot give rise to breach of contract. There are two exceptions: (1) a false statement
made during negotiations inducing the contract (misrepresentation); (2) a promise forming part of the
contract, moving from the person making the statement (collateral warranty).

Contract for sale of land: Statute

Section 4(1) of the Conveyancing and Law of Property Act of Dominica Chap 54:01 – Contract
for sale etc. of land to be in writing - “No action may be brought upon any contract for the sale or
other disposition of and or any interest in land, unless the agreement upon which the action is brought,
or some memorandum or note thereof, is in writing and signed by the party to be charged or by some
other person thereunto by him lawfully authorised.”
Section 7 of the Conveyancing and Law of Property Act of Dominica Chap 54:01 – Applications
to the Court by vendor and purchaser- (1) A vendor or purchaser of any interest in land, or their
representative respectively, may apply to the Court, in respect of any requisitions or objections, or any
claim for compensation, or any other question arising out of or connected with the contract (not being a
question affecting the existence or validity of the contract), and the Court may make such order upon
the application as to the Court may appear just, and may order how and by whom all or any of the costs
of and incident to the application are to be borne and paid.
(2) Where the Court refuses to grant specific performance of a contract, or in any action for the return
of a deposit, the Court may, if it thinks fit, order repayment of any deposit.
(3) This section applies to a contract for the sale or exchange of any interest in land.

Baldeo v Singh (1961) British Guiana Rep. 149

Elias v George Sahely & Co. (Barbados) [1983] 1 A.C 646 -
Facts: On February 10, 1975, the plaintiff and the defendant made an oral agreement for the sale of
premises to the plaintiff. On the same day the plaintiff's attorney wrote to the defendant's attorney
confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 per cent. of the
agreed price describing it as a deposit which he directed should be held by the defendant's attorney as
stakeholder pending completion of the contract of sale. He asked for an acknowledgement and receipt
for the money. The defendant's attorney signed and sent a receipt. The receipt stated that he had
received the money as deposit on the property "agreed to be sold" by the defendant to the plaintiff. The
defendant refused to complete the sale. The plaintiff brought an action claiming specific performance
of the contract. 
Held: 1) that on the facts the parties had concluded an oral contract of sale on February 10 and that
nothing contained in the letter of that date indicated that they did not intend to be bound until a formal
written contract had come into existence
(2) That the acceptance of a deposit as stakeholder did not preclude the recipient from acting as agent
and that on the facts the defendant's attorney had had authority to sign the receipt on behalf of the
defendant
(3) That where the terms of a document signed by a party charged with a contract referred to an oral
agreement for the sale of land, parol evidence was admissible to identify any other document which
related to the oral agreement and the document so identified could be read together with that signed
by the party charged and if the two documents together contained all the terms of a concluded
contract, they were sufficient to constitute a memorandum in writing of the oral agreement as
required by section 2 of the Statute of Frauds, and that, accordingly, the trial judge had rightly
admitted the parol evidence and the letter of February 10 and, since the letter had contained all the
terms of the concluded contract, it could be read together with the receipt and, since the two documents
constituted a sufficient signed memorandum, the contract was enforceable and the plaintiff entitled to
specific performance
Monnickendam v Leanse (1923) 39 TLR 445
The closest to a case on the point was Monnickendam v. Leanse 39 T.L.R. 445, produced by us by
counsel for the appellant. In that case Horridge, J. held that there was a completed agreement to buy
land but no memorandum to satisfy the Statute of Frauds and consequently the purchaser could
repudiate his bargain, which was unenforceable, but could not get back his deposit. The report states
Horridge, J. went on to say:–
“…He thought the result would have been the same if he had held that there was not a completed
contract, because the terms on which the money was deposited had been carried out so fax as the
defendant was concerned, so that in that case also the plaintiff would have no right to recover.”
90.

Halsbury’s Law of England – Money paid under unenforceable contracts - Where the contract is
unenforceable but the defendant remains ready, able or willing to perform his obligations under the
contract, the claimant will not, as a general rule, be entitled to recover money paid to the defendant 4.
Standard form of Memorandum
N.B- The commonest form of memoranda found to satisfy this section have been receipts for deposits. 

a) Name and description of parties 

The note or memorandum of a contract for sale of real estate must contain either the names of the
contracting parties or such a description of them that there cannot be any fair dispute as to their
identity. The term "vendor" is not of itself a sufficient description. Claim for specific performance
dismissed: Potter v Duffield (1874) LR 18 Eq. 4

b) Property to be described

A letter signed by the purchasers constituted a sufficient written memorandum of an oral agreement
since the property to be sold was described therein with adequate certainty: Harewood v Retese (1990)

Timmins v. Moreland Street Pty Co. Ltd. (1958) Ch. 110

c) Consideration

A memorandum disclosed no agreement with respect to the rent and in consequence failed to satisfy
the requirements: Chew v Richmond (1962)

Smith v. Jones [1952] 2 All ER 907

d) Terms of the Contract

Although the parties concluded a binding oral agreement which was acknowledged by the defendant's
letter, the agreement that payment of the purchase price was to be by instalments was a material term
of the contract and its omission from the letter prevented the letter from being a sufficient
memorandum. Accordingly, the contract was unenforceable: Tweddell v Henderson (1975) 2 All ER
1096

Hawkins v. Price (1947) Ch. 645

e) Existence of the Contract 

Documents “subject to contract” cannot constitute a sufficient memorandum: Tiverton Estates Ltd v
Wearwell Ltd (1974). It is sufficient if the memorandum records the terms agreed and it is unnecessary,
except in cases where the memorandum denied liability under the contract, for the memorandum to
acknowledge the existence of a contract: Law v Jones (1974)

Chillingworth v Esche (1924) 1Ch 97

 f) Signature of party to be charged 

Document must be signed by party to be charged cf. a formal contract for sale of land which is signed
by both parties.

Where the alteration of a document was not merely for the purpose of correcting a mistake in a written
statement of an agreement but effected an alteration of the terms of a contract, the Act was not satisfied
unless the party to be charged signed the document afresh or expressly revived the existing signature
by appropriate words or gestures directed to the signature: New Hart Builders Ltd v Brindley (1975)

Where there is an offer in writing made by the party to be bound which contained the essential terms of
what was offered and the party to be bound accepts that his offer was accepted unconditionally, albeit
orally, that was a sufficient note or memorandum to satisfy the requirements of the Act. An e-mail is
capable of being a sufficient note or memorandum if it is in writing and the offer was accepted orally
on behalf of the other party. However, the automatic insertion of a person's e-mail address after the
document is transmitted by the Internet service provider does not constitute a signature for the purposes
of the Act. Absent evidence to the contrary, it was not possible to hold that the automatic insertion of
an e-mail address was intended for a signature. Accordingly the e-mail in the instant case did not bear a
signature sufficient to satisfy the requirements of the Act: J Pereira Fernandes SA v Mehta - [2006] 2
All ER 891

Rosenbaum v. Belson (1900) 2 Ch. - Instructions given by an owner of real estate to an agent to sell
the property for him, and an agreement to pay a commission on the purchase price accepted, are an
authority to the agent to make a binding contract, including an authority to sign an agreement for sale.
Seechan v F.C.B 2001 Hct TT no. CV 696 of 1998 (unreported)

FORM OF MEMORANDUM

1. The written memo need not be formal.

“Received from Tom Brown the sum of $20,000 being ten percent deposit of purchase price for
property situate at 2 Knoxville comprising 5000 superficial feet 

Signed
Alex Wright”

2. Documents may be read together to form a memorandum for e.g. a series of letters or a
series of emails or a letter and a receipt.

Elias v George Sahely & Co Barbados Ltd - (1982)

The appellant agreed to purchase premises from the respondent for $390,000. The appellant's lawyer
wrote to the respondent's lawyer regarding the sale. He identified the premises and stated the purchase
price. He also paid $39,000 deposit to the respondent's lawyer as stakeholder. The respondent's lawyer
sent a receipt for the $39,000 to the appellant's lawyer which stated that this was a deposit paid on the
property. The CA held that the letter and receipt could not be read together as a memorandum in
writing, and that, because the respondent's lawyer had received the deposit as stakeholder, he could not
have signed the receipt as agent for the respondent. 

Held: Receipt of a deposit by a person as stakeholder did not preclude that person from being
authorised to sign a note or memorandum evidencing the existence of a contract; accordingly, the
respondent's lawyer could act as its agent. The receipt and letter were (when read together) a sufficient
note or memorandum.

EXCEPTIONS TO S 40
Non Compliance with S40 LPA (1925) UK which states that contracts for sale of land etc to be in
writing
Low v Fry (1931)152 LT 585, [1935] All ER 506- The defendant orally agreed to buy back for the
sum of 800 pounds a cottage which he had sold to the plaintiff. There was no memorandum or note in
writing of the agreement for sale sufficient to satisfy the terms of s 40 of the Law of Property Act,
1925. He handed to the plaintiff a cheque for 450 pounds made payable to him as part of the purchase
price. The defendant subsequently repudiated the agreement and stopped the cheque, which was
dishonoured. The plaintiff, who had always remained able and willing to convoy the property, sued the
defendant on the cheque. The defendant relied on s 40(1) of the Law of Property Act, 1925.
Held: the plaintiff was entitled to recover on the cheque.

Emails – J. Pereira Fernandez SA v Metha 2 ALL ER 891 (2006)

DOCTRINE OF PART PERFORMANCE

An oral contract for sale of land/lease or one not adequately evidenced in writing may be enforced
under the Part Performance. 

MADDISON v ALDERSON (1883) 8 App. Cas. 467 – The appellant lived for many years as a
housekeeper in the service of the deceased, Thomas Alderson. It is certain that the deceased intended to
leave the appellant a life interest in his estate for he had will prepared for that purpose which he signed,
and the will only failed for want of due attestation.
An intestate induced a woman to serve him as his housekeeper without wages for many years and to
give up other prospects of establishment in life by a verbal promise to make a will leaving her a life
estate in land, and afterwards signed a will, not duly attested, by which he left her the life estate. When
the deceased’s heir-at-law brought an action to recover the title deeds which the appellant possessed,
the appellant claimed that she was entitled to the same benefit which she would have taken under the
will if it were duly executed, by virtue of a parol agreement alleged to have been made with her by her
master for sufficient consideration, and to have been on her part performed.
Regarding part performance, Earl Selbourne L.C held that “All the authorities show that the acts
relied upon as part performance must be unequivocally, and in their own nature, referable to some
such agreement as that alleged”
Per Lord O’Hagan regarding part performance “It must have relation to the one agreement relied
upon, and to no other. It must be sufficient of itself, and without any other information or evidence,
to satisfy a Court, from the circumstances it has created and the relations it has formed, that they
are only consistent with the assumption of the existence of a contract the terms of which equity
requires, if possible, to be ascertained and enforced.”

If oral evidence is to be given to establish the existence of the agreement between the parties, it
must:
1) Show the existence of a concluded contract,
2) The terms of that contract must be definite and certain and
3) There has been some part performance by the party seeking to enforce it. The acts must be
unequivocally referable to some contract between the parties and be consistent with the contract
alleged. If the abovementioned requirements are met in Equity it would render it a fraud on a
party to take advantage of the absence of writing.

STEADMAN V STEADMAN [1976] A.C. 536 – the appellant brought proceedings against her former
husband for a declaration that the matrimonial home was jointly owned by the parties. The husband
claimed that there was part performance of an oral agreement made by the parties out of court by which
the wife agreed to transfer her interest in the house to the husband for £1,500, the maintenance order
for the wife would be discharged and the child’s maintenance order would continue. The husband
therefore held the wife had compromised the proceedings. The main question was whether the admitted
facts amount to part performance within the meaning of s.40(2) –“This section… does not affect the
law relating to part performance”

The House of Lords held that the alleged acts of part performance had to be considered in their
surrounding circumstances and, if they pointed on a balance of probabilities to some contract
between the parties and either showed the nature of or were consistent with the oral agreement
alleged, then there was sufficient part performance of the agreement for the purpose of section 40
(2)  LPA. The terms of the agreement of March 2 were not severable and in the surrounding
circumstances, the payment by the husband of £100 and the preparation of and sending the deed of
transfer to the wife were sufficient acts of part performance of the oral agreement and, accordingly, it
was enforceable notwithstanding section 40 (1) of the Act
There is no general rule that the payment of money can not constitute an act of part performance of a
parol contract within the meaning of section 40 of the LPA
In the more recent case of Steadman v Steadman, the House of Lords held that part performance
is available where the alleged acts of part performance point on the balance of probabilities to
some contract between the parties and either showed the nature of the contract or were
consistent with the oral agreement alleged. This was a departure from the more traditional and
stricter test laid down in Maddison

Per Lord Reid –*** “If one party to an agreement stands by and lets the other party incur expense or
prejudice his position on the faith of the agreement being valid he will not then be allowed to turn
round and assert that the agreement is unenforceable. Using fraud in its older and less precise
sense, that would be fraudulent on his part and it has become proverbial that courts of equity will
not permit the statute to be made an instrument of fraud.”
- The notion that a payment of money can never be part performance would defeat the whole
purpose of the doctrine
- There is no rational principle stating that part performance applies solely to a contract
relating to land
- “You must not first look at the oral contract and then see whether the alleged acts of part
performance are consistent with it. You must first look at the alleged acts of part
performance to see whether they prove that there must have been a contract and it is only if
they do so prove that you can bring in the oral contract.”
- The rule is that you must take the whole circumstances, leaving aside evidence about the oral
contract, to see whether it is proved that the acts relied on were done in reliance on a
contract: that will be proved if it is shown to be more probable than not

Wakeham v Mackenzie (1968) 1 WLR 1175 – the rule is not that the acts of part performance relied
on must only be referable to a contract such as that alleged, the rule is that the operation of acts of
part performance required only that the acts in question be such as must be referred to some
contract and may be referred to the alleged one- After his wife's death in December 1963, B, who was
seventy-two years of age, orally agreed with the plaintiff, who was a widow and sixty-seven years of
age, that if she would move into his house, and look after it and him for the rest of his life, she should
have the house (which he owned) and contents when he died. It was a term of the agreement that he
should pay for her own board and coal. The plaintiff gave up her council flat and moved to B's house.
She looked after it and him until he died, and she paid for her board and coal. B died in February, 1966.
He did not leave the house or contents to the plaintiff. In an action by the plaintiff for specific
performance of the agreement.

The Court held that the giving up of the plaintiff's flat in order to make her home at B's house, her
moving into that house, her acts in looking after B and the house and in paying for her board and coal
were acts of part performance which must be referred to some contract, and were referable to the
contract that she alleged; accordingly the court would decree specific performance of the oral contract
by B with the plaintiff that she should have his house and contents after his death.
Quaere: whether, assuming (contrary to the decision stated above) that there had not been part
performance, the plaintiff would have been entitled to specific performance on the footing that it would
have been fraudulent for B, immediately before his death, to have repudiated the oral contract for want
of writing 

Chaproniere v Lambert (1917) 2 Ch. 356 – the mere payment of rent of in advance of itself does not
amount to part performance, the person to be charged is charged, not upon the contract itself, but
upon the equities arising out of the changed position caused by the acts of the parties done in
execution of the contract. – the plaintiff brought an action for specific performance of an alleged
agreement by the defendant to grant the plaintiff a lease of a farm. The plaintiff claimed that the parties
made a memorandum, but it was neither signed nor contained the name of either. The plaintiff claimed
this constituted a sufficient memorandum to satisfy the Statute of Frauds and alternatively he relied on
the payment of £25 for rent in advance as constituting part performance of the agreement.

The Court of Appeal held that there was no sufficient memorandum of the agreement to satisfy the
statute. Also, the mere payment of rent in advance is not such a part performance as to take the case out
of the statute. Even in the case of a sale of land the payment of the whole of the purchase-money would
not of itself be sufficient to do so. It must be remembered that the ground upon which a Court of Equity
enforces specific performance of a contract affecting land is that the person to be charged is charged,
not upon the contract itself, but upon the equities arising out of the changed position caused by the acts
of the parties done in execution of the contract. In coming to their decision, they affirmed Maddison

Though the plaintiff relied on Nunn v. Fabian that case was distinguished and seen as not applicable
from the present for in addition to paying an increased rent, the tenant, who was in possession, had
spent a considerable sum on the alteration of the premises.

Swinfen Easy LJ concurred with the case of Thursby v. Eccles (1) Bigham J. in terms decided this very
point. He there held that payment of rent in advance on a parol agreement for a lease of a house was
not of itself such a part performance as would take the case out of s. 4 of the Statute of Frauds. In so
deciding he said: "When the Court of Chancery gives relief from the operation of the statute it does so
upon the equities which have arisen out of the acts of the parties. Payment of money in such a case as
this raises no equity except possibly a right to recover it back." In my opinion that case was well
decided.

Clement Lewis Thomas v. Ange Felix Olivacce [ECSC] [1982] ECSC J0929-1 – Dominican Court of
Appeal Case following Steadman v. Steadman case:
[9] – Steadman v Steadman
[13] essentially affirms Kingswood and Mackenzie regarding “only” and “some contract”
But also note Lawrence v. Blanchard DM 1968 HC 2 where Maddison was applied.

In order to establish part performance a plaintiff had to show that he had acted to his detriment and that
the acts in question were such as to indicate on a balance of probabilities that they had been performed
in reliance on a contract with the defendant which was consistent with the contract alleged: Steadman v
Steadman 

Jackman v Jones BB 1987 HC 22 (Steadman v Steadman applied) – the payment of money together
with possession could amount to part performance- the plaintiff claimed possession of an area of land
in St. Thomas from the defendant. He alleged that the defendant purchased from the plaintiff a chattel
house situated on the said land and failed to remove the said chattel house within the time agreed by
the parties. In the defence the defendant denies that she purchased a chattel house from the plaintiff. It
is alleged that under an oral agreement between the parties, the defendant purchased a dwelling-house
together with land on which stands at an agreed price which was paid in full and that she was put in
possession of the said property by the plaintiff. In her counterclaim the defendant seeks an order for
specific performance together with damages and a declaration that she is entitled to the fee simple
absolute in possession of the property.

The Court found the following facts:

(a) that an oral agreement had been concluded on the 14th January, 1983 between the plaintiff and the
defendant;
(b) that the terms of the oral agreement were that the plaintiff would sell his house and land at Lot 24,
Edgehill, St. Thomas to the defendant for $18,200;
(c) that at the date of the oral agreement the defendant paid the plaintiff the sum of $18,200;
(d) that the plaintiff put the defendant in possession of the property.

Delaney v. T P Smith Ltd. (1946) KB 393

The defendants were the owners of a dwelling-house which had been damaged by enemy action and
which was being repaired. In April, 1944, the plaintiff entered into an oral agreement with the
defendants' agent that he should become the tenant of the house at a weekly rent as soon as the repairs
had been completed, which the county court judge found to be in December. The defendants
subsequently decided to sell all the houses on the estate on which this house was situate, and so
informed the plaintiff, who, however, made a clandestine entry into possession of the premises in
December, 1944. About a week later the defendants forcibly ejected the plaintiff and his effects. The
plaintiff thereupon brought an action against the defendants for trespass, alleging that he was tenant of
the dwelling-house and as such protected by the Rent and Mortgage Interest (Restrictions) Acts. The
defendants by their defence pleaded that there was no note or memorandum in reference to the alleged
tenancy as required by s. 40 of the Law of Property Act, 1925. The county court judge found that there
was no memorandum signed by the defendants' agent sufficient to satisfy the statute, and that there had
been no part performance, but he held that the plaintiff was not seeking to enforce the agreement by
action, as he had entered into possession of the premises. The defendants sought to justify their trespass
by alleging that the agreement was not in writing, but their justification was defeated by proof of the
agreement, and therefore the plaintiff was entitled to damages for the trespass. On appeal,

Held, allowing the appeal, that though the plaintiff's possession of the premises was sufficient to
support an action of trespass against a wrongdoer, it was not sufficient to support it against the lawful
owner of the premises. In the latter case it was an essential part of the plaintiff's cause of action that he
had a possession in himself consistent with the freehold being in the defendants, and the onus of
establishing this by proving a demise from the defendants to himself lay on the plaintiff. The plaintiff
therefore had to rely on the oral agreement to support his action, and consequently his action was in
substance an action brought upon that agreement and therefore failed.

Broughton v. Snook (1938) 1 All ER 411

In April, 1935, B. verbally agreed with S. to purchase a freehold inn. The purchase was to be
completed on December 31, 1936, and in the meantime the tenant then in possession was not to be
disturbed. In October, 1936, by arrangement with the tenant and with the consent of S., B. went into
possession of the inn and to the knowledge of S. made considerable alterations and improvements,
expending nearly 200l. In March, 1937, S. died and his executors offered the inn for sale. B. claimed
specific performance of the oral agreement. The defendants pleaded s. 40 of the Law of Property Act,
1925:-
Held, that though the entry of B. might be referable to his agreement with the tenant, the other acts of
B. done with the knowledge of S. amounted to part performance of the verbal contract. They were
necessarily referable to the contract, since the existence of the contract was the only reasonable
explanation of the acts in question, and they did not cease to be so because some ingenious mind might
suggest that the acts in question might have been done by B. as an assignee of the tenancy, of which
two months only remained unexpired.

Rawlinson v Ames (1925) Ch. 96 – alterations made to premises upon suggestion of the defendant
amounted to part performance – The defendant entered into an oral contract with the plaintiff to take a
lease of a flat. It was agreed that certain alterations should be made to the flat. During the progress of
the alterations the defendant frequently visited the flat and made suggestions for further alterations,
which were carried out by the plaintiff at her request. She subsequently repudiated the contract. In an
action for specific performance she relied on the Statute of Frauds as a defence:-

The Court held, that the acts done by the plaintiff at the request of the defendant were acts of part
performance taking the case out of the Statute of Frauds, and that the plaintiff was entitled to judgment
for specific performance.
Romer LJ – “Now the mere fact that the plaintiff converted part of her premises into the flat and expended
money thereon is not only referable to a contract such as that alleged. It is equally referable to her
ownership of the premises. Nor would this improvement by the plaintiff of her own property be such an act
as to render it a fraud in the defendant to take advantage of the contract not being in writing. It is, however,
to be observed that in the present case the plaintiff in altering her premises and expending money in the
alterations was doing so in accordance with requests and suggestions made to her or her employees from
time to time by the defendant. It appears to me that this fact necessarily suggests the existence of some
such contract as alleged. I think that any one on the spot who saw what was being done and the way in
which it was being done would inevitably have come to the conclusion that the defendant must have a
contract giving her some interest in the property.”

Ex p. Foster, Re. Foster (1883) 22 Ch. D 797

In order to justify the issuing of a debtor's summons under sect. 7 of the Bankruptcy Act, 1869, the
alleged debt must be an exigible debt; if the debtor would have any defence, legal or equitable, to an
action for the debt the summons ought to be dismissed.

Two partners in trade whose affairs were embarrassed, without filing a liquidation petition, summoned
a meeting of their creditors. Nineteen out of twenty-seven creditors attended the meeting, their debts
amounting to £2400 out of a total of £2628, and a resolution was passed that a deed of assignment of
the debtors' estate and effects should be made to three persons named, as trustees for the benefit of the
creditors, with power for them to carry on the business for such time as they should think fit, and to sell
the concern as a going concern, or otherwise. One of the debtors was to have his discharge on payment
of £200, or otherwise as the creditors might direct. The resolution was signed by the chairman of the
meeting, but by no one else. The day after the meeting the debtors gave up possession of the ir assets to
the persons named in the resolution as trustees, and those persons carried on the business for a few
weeks, and proceeded to collect the book debts. A draft deed of assignment was prepared in accordance
with the resolution, but it was never executed, the other creditors not having assented to the
arrangement embodied in the resolution:-

Held, that, inasmuch as all the creditors did not come in and assent to the arrangement, there was, no
binding agreement between the debtors and their creditors, and that, consequently, a creditor who was
present at the meeting, even if he had assented to the resolution, which appeared to be doubtful, was
entitled to issue a debtor's summons for his debt.

TYPES OF CONTRACT FOR SALE OF LAND

Broadly speaking there are two kinds of contract for the sale of land - the "open" and the "formal”. The
type of contract regulates the rights and obligations of the parties

1. The Open Contract

is a bare agreement which expressly provides for nothing beyond (a) the name of the parties, (b) the
purchase price or other consideration - may be money, an exchange of land or even love and affection
as in a deed of gift; and (c) a description of the property. In most cases the contract is an open one
when the parties make their own agreement without consulting a conveyancer or other legal
practitioner. The rights and obligations of the parties under an open contract are regulated by (a) case
law (b) the property statutes of the several territories and (c) the practice of conveyancers.

The Vendor must:

(i) Show that he has good title (or a marketable title) to the land he has agreed to sell and that
he can convey, or has the power to procure the conveyance of, the whole of the legal and
equitable estate in the land free from encumbrances.
(ii) (Prepare and deliver to the purchaser an abstract of title commencing with a good root of
title. This will be explained in the part of the course on investigation of title. Note practice
in Trinidad and Tobago is different. See Chaitlal v Ramlal 2003 UKPC 12.
(iii) Produce his original title deeds to the purchaser who will then compare these with those
mentioned in the abstract. In Trinidad & Tobago and St Vincent and the Grenadines
however, by virtue of the provisions of the Registration of Deeds Act Chap 19:06, original
deeds are kept at the Registrar General's Office, so copies are usually produced.
(iv) Identify the property by proving that the land being sold is what is described in the contract
and in the abstract. Applies to Guyana.
(v) Execute a conveyance/transfer/documents to effect transport of the property, hand over the
title deeds to the purchaser(where applicable) and deliver up vacant possession to the
purchaser. The purchaser must pay the purchase price - his only obligation under an open
contract
Note-Everything required to be done under an open contract must be done within a reasonable time -
no time being fixed by law or practice for doing of any of the above mentioned things.

2. The Formal Contract:

As nearly all the obligations under an open contract are on the part of the vendor, it is usual and
desirable, from the vendor's point of view, for a formal contract to be drawn setting out and regulating
the rights and obligations of the parties. The formal contract is divided into two main parts:
(i) The particulars of sale describing the property and the estate or interest to be transferred.
(ii) The condition of sale setting out the terms and conditions subject to which the property is
being transferred.
Case: Colby v Felix Enterprises Ltd & Anor 2011 CCJ 10 CCJ App. No. 7 of 2010, (2011) 79 WIR
113.

By written agreement of 16 May 1995, the appellant contracted to sell land and a house to the
purchaser, Felix Enterprises Ltd, who was already a monthly tenant of the appellant. The contract
required: the appellant to take legal proceedings to perfect the title and provided for the purchaser to
pay rent to the appellant in the meantime, that rent to be credited to the purchase price thereafter
(clause 2(e)); the sale and purchase to be completed within 30 days of the appellant producing evidence
of good and marketable title (clause 10); that if the purchaser failed to complete the purchase, the
deposit paid would be forfeited to the appellant who had to accept it as liquidated damages for breach
of the agreement and would not be required to give or to tender a conveyance to the purchaser 'but this
clause shall not be interpreted so as to make time of the essence of the contract' (clause 16). The
contract was amended on 27 June 1995, to provide, inter alia, that '[s]hould the rent not be paid on the
date specified in clause 2(e) or within fourteen days thereof, as to which time shall be of the essence,
then the rent for that month shall not be credited towards the purchase price'. On 2 February 1998 the
appellant obtained a consent order, entered on 5 June 1998, evidencing the appellant's title to the
property and enabling the appellant to invoke clause 10 of the contract to make completion possible
within 30 days. A completion statement was sent to the purchaser on 8 October 1998 and, on 23
November 1998, the appellant gave the purchaser notice to complete the contract and pay the balance
of purchase money within 28 days in default of which the deposit would be forfeited to the appellant,
who would rescind the contract and seek such relief as she might be entitled to in law (the notice to
complete). However, due to ongoing disputes as to the payment of rents to be credited the appellant did
not rely on the 23 November notice soon after it had expired but, by letter of 5 January 1999, required a
time of the essence completion on or before 8 January 1999 and, this date passing without any
completion, then, by letter of 29 January 1999, required a time of the essence completion by 8 February
1999. Both letters were expressed to be 'without prejudice to our Notice dated 23 November'. On 10
August 1999 the appellant wrote to the purchaser stating that 'As your client has failed to comply with
the terms of our notice to complete and/or to complete the purchase of the property our client must now
treat this contract as terminated. Under the terms of clause 16 of the contract our client forfeits the
deposit paid by your client and demands that your client deliver immediate possession of the property.'
On 15 February 2000 the appellant filed an originating summons claiming a declaration that the
appellant had rescinded the contract so as no longer to be obliged to transfer the property to the
purchaser; a declaration that the appellant had correctly forfeited the deposit; and an order that the
purchaser deliver possession of the property to the appellant and pay mesne profits up to the date of
possession. In opposition, the purchaser sought declarations that the appellant was obliged to convey
the property to it and as to the remaining money to be paid. On 23 February 2004, the judge gave an
oral judgment in favour of specific performance and by subsequent written order of 8 November 2004
ordered the contract to be specifically performed and carried into execution and settled a payment sum
of $460,500.00. However, further disputes arose and on 15 December 2006 an appeal from the
judgment was filed with the leave of the Court of Appeal. The Court of Appeal rejected the appellant's
claim to have validly rescinded the contract so as to be entitled to forfeit the deposit and to recover
possession on the basis that when the appellant had served the 23 November 1998 notice to complete
the notice had been invalid as the appellant had not been in a position to be able to complete because
no court order had been obtained to enable the property to be conveyed to the purchaser's nominee,
Felix Broome Inc. That order was not obtained until 30 December 1998. The Court of Appeal awarded
specific performance in favour of the purchaser but rejected the purchaser's contention in relation to the
balance of purchase price credit. On appeal to the Caribbean Court of Justice, the principal issue for the
court was whether the appellant had validly rescinded the contract.

Held – To have validly rescinded the contract the appellant had to show (a) that time for completion
had been made of the essence and had not subsequently been waived and (b) that the purchaser had
breached that requirement by not paying or tendering in timely fashion the balance of the purchase
price in circumstances where the purchaser considered a lesser sum was required than that demanded
by the appellant for the purchaser to fulfil its obligation to pay the due balance. The setting of new
periods of time within which the purchaser could still have duly completed the contract was wholly
inconsistent with any alleged right to be able to forfeit the deposit and terminate the contract for non-
completion within 28 days of 23 November: the appellant had not 'blown cold' by exercising its right to
rescind but had continued to 'blow hot' by giving the purchaser two further extensions of time, and thus
evincing an intention not to rely on the 23 November notice. Further, in that respect, the formulaic
expression of 'without prejudice to' the notice to complete in both subsequent letters was meaningless.
As a matter of general contract law in relation to open contracts for sale of land, where a target date
fixed for completion could not be found a vendor had to wait until there had been an unreasonable
delay in completing the transaction before he could serve a notice requiring completion to be within a
reasonable time, time to be of the essence for such completion; if the purchaser then failed to meet the
deadline the vendor could treat the contract as repudiated and forfeit the deposit (and recover
possession if the purchaser had been allowed into possession). Where a target date had been set for
completion, as in the instant case under clause 10, it was not necessary to wait for an unreasonable
delay of the other party before serving a notice to complete which itself was required to allow a
reasonable time to complete and needed the server to be ready, willing and able to complete. It was
unjust and impractical to defer the innocent party's right to rescind until the guilty party had delayed for
two periods each of which constituted unreasonable delay. In the instant case, a third time of the
essence date, 8 February 1999, had been fixed by a letter dated 29 January 1999, and it was clear that
the purchaser had been afforded a final reasonable period to complete its purchase, having been made
well aware of the appellant's pressure to complete over the preceding two months and the only dispute
being as to the crediting of rents against the purchase price. In those circumstances, once the purchaser
had failed to complete by 8 February and the purchaser had made it very clear that, although they
stated they were willing and able to complete, they would not do so without being credited with
substantial payments of rent, one would have expected the appellant to shortly rescind the contract.
However, no action was taken by the appellant until six months later. While there were no ongoing
negotiations to encourage the purchaser to believe the appellant had waived her rights and was giving it
more time, mere standing by could amount to a waiver if it continued for an unreasonably long time.
Once six months had elapsed and the appellant had not carried out the strong threat to rescind the
contract, the purchaser was clearly entitled to regard the appellant as having put her rescission remedy
aside while reflecting upon the best course of action. It followed that the appellant vendor had waived
time being of the essence for completion of the contract so that she could not forfeit the deposit and
recover the property that she had leased to the purchaser at $3,000 per month until completion of the
purchase. Instead, the purchaser was entitled to have the contract specifically performed.
(2011) 79 WIR 113 at 116Accordingly, the appeal would be dismissed, except that the purchaser
would be ordered to pay the appellant rent from 1 December 2004 at $3,000 per month until
completion of the purchase (see [2], [36], [38], [40]–[46], [58], below); dicta of Goff LJ in Buckland v
Farmer & Moody (a firm)  [1978] 3 All ER 929 at 942, Louinder v Leis (1982) 149 CLR 509
and Behzadi v Shaftesbury Hotels Ltd  [1991] 2 All ER 477 applied.
Per curiam. (1) Conveyancing practitioners in Barbados and similarly circumstanced Caribbean
countries should produce detailed standard conditions of sale for contracts for the sale of land that will
then be used as the basis for all such contracts subject to such variations or ousters as might be
appropriate for particular special circumstances. Currently, too many contracts afford scope for time-
consuming arguments even on basic points eg involving the date and time and place for completion and
what is required for a valid notice to complete and compliance with it (see [1], [52], below).

(2) There were excessive delays in the delivery of reserved judgments, particularly in the context of
litigants having a constitutional right under art 18(8) of the Constitution of Barbados that their case
shall be given a fair hearing within a reasonable time. As a general rule no judgment should be
outstanding for more than six months and unless a case is one of unusual difficulty or complexity,
judgment should normally be delivered within three months at most. Moreover, while appreciating that
circumstances as to finances, facilities, manpower and other resources will vary from country to
country and a reasonable time varies according to circumstances, extraordinary delay might call for an
apology and, if any existed, an explanation of the mitigating circumstances. An unreasonable delay
reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces
the negative images which the public can have of the way judges and lawyers perform their roles. If
there were regular delays of this order, the rule of law would be undermined (see [3], [4], below); dicta
of Saunders J in Reid v Reid (2008) 73 WIR 56 at [22] and of Arden LJ in Bond v Dunster Properties
Ltd [2011] EWCA Civ 455 at [1]–[2] applied.

DEPOSITS

Lord Mac Naughten in the case of Soper v. Arnold (1889) 14 AC 429stated: "The Deposit serves two
purposes - if the purchase is carried out, it goes against the purchase money - but its primary purpose is
that - it is a guarantee that the purchaser means business.”
Amount of Deposit - usually 10% Penalty - If more than 10% paid theVendor has to show special
circumstances to justify forfeiting more than 10% of the deposit.
* Workers Trust v Dojab Ltd (1993) 2 All ER 370
On 5 October 1989 the appellant bank as second mortgagee sold certain premises in Jamaica at
auction to the respondent for $11,500,000. Clause 4 of the contract provided for the payment of a
deposit of 25% of the contract price and a deposit of $2,875,000 was duly paid by the respondent to the
bank's solicitors. The contract provided that the remainder of the purchase money was to be paid within
14 days of the date of the auction, whereupon the bank were to execute a transfer of the property to the
respondent and lodge such transfer for registration. Clause 13 of the contract provided for forfeiture of
the deposit if the purchaser failed to observe or comply with any of the contractual stipulations and cl
15 provided that time was to be of the essence of all time limits contained in the contract. On the date
fixed for completion (19 October 1989) the respondent's attorney sent to the bank a letter of
undertaking from another bank to pay the balance of the purchase price, subject to certain conditions.
The bank's attorney rejected that and gave the respondent 24 hours to provide a satisfactory
undertaking. The respondent attempted to do so on 20 October 1989 but the bank again rejected it. On
23 October the bank wrote to the respondent rescinding the contract and purporting to forfeit the
deposit. The respondent refused to accept that and on 26 October 1989 tendered to the bank the balance
of the purchase price with interest. The bank returned the cheque the next day. The respondent then
started proceedings claiming, inter alia, relief from forfeiture of the deposit. The judge rejected the
respondent's claim but on appeal the Court of Appeal of Jamaica held that the respondent was entitled
to relief from forfeiture to the extent that the deposit exceeded 10% of the price but did not award any
interest on that sum. The bank appealed to the Privy Council against the decision of the Court of
Appeal to give relief against forfeiture. The respondent cross-appealed claiming that it should have
been awarded relief against forfeiture as to the whole of the 25% deposit and should also have been
awarded interest.

Held – A deposit by the purchaser on a contract for the sale of land showed that the purchaser was in
earnest in performing the contract and, as such, forfeiture of the deposit in the event of failure to
complete the sale did not fall within the general rule that a penalty payable in the event of a breach of
contract was unlawful unless the provision for the payment or forfeiture of a sum of money in the event
of a breach was a genuine pre-estimate of the loss which the innocent party would incur by reason of
the breach. Accordingly, a deposit could be validly forfeited even though the amount of the deposit
bore no reference to the anticipated loss to the vendor flowing from the breach of contract. However,
the amount of the deposit had to be reasonable and, having regard to usage which had been established
over a long period that the customary deposit was 10% of the contract price, a vendor who sought to
obtain a larger amount than 10% by way of forfeitable deposit had to show special circumstances
which justified such a deposit, otherwise the deposit would be held to be a penalty intended to act in
terrorem. Since the 25% deposit required by the bank was not a true deposit by way of earnest, the
provision for its forfeiture was a plain penalty and had to be repaid. Moreover, since the bank could not
establish that the whole sum was truly a deposit, it had not contracted for a true deposit at all and
therefore the deposit had to be repaid in full to the respondent, which was also entitled to interest at
12% pa from the date of rescission until the date of actual payment. The appeal would therefore be
dismissed and the cross-appeal allowed

Bidaisee v Sampath TT 1995 PC 1 - The retention by the vendor of the deposit paid by the purchaser
of land in the event that the purchaser defaults is not a penalty against which equity grants relief and
section 7(2) of the Conveyancing and Law of Property Ordinance (power of court to order repayment
of deposit on refusal to order specific performance or in action claiming repayment) does not overrule
this principle.

Pompey v Mahadeo (2002) 61 WIR 293, Civ App No 99 of 2000 - No clause in the agreement
provided for forfeiture of the deposit if the purchaser defaulted and, accordingly, the retention by
the vendors of the deposit fell within the common-law rule which permitted such retention, even
though the deposit bore no reference to the anticipated loss flowing from the breach of contract; the
amount of the deposit (17 per cent), however, exceeded the normal amount (10 per cent) and in the
absence of a forfeiture clause and in view of the vendors’ offer to repay whatever sum was repayable
the vendors should repay 7 per cent of the deposit to the purchaser:

PAYMENT OF DEPOSIT TO THE VENDOR

Once deposit is paid the Purchaser possesses a lien on the Vendor’s property. The vendor:
1. Holds it for his own benefit
2. Is personally liable for it
3. Unless otherwise states, is entitled to the interest on deposit

PAYMENT OF DEPOSIT TO STAKEHOLDER/AUCTIONEER

The vendor:
1. Receives it on behalf of both parties
2. Is entitled to the interest on the deposit as this is his stake
3. In the event of premature payment to a party not entitled, he is liable to the party entitled to the
deposit
 4. If a dispute arises on an incomplete sale, he should await the outcome before paying over the
deposit
5. If the deposit is not recoverable from the stakeholder, the loss is borne by the vendor when the
Contract is concluded
Note: When drafting contracts for sale of land certain clauses may be implied by the use of the term “as
stakeholder”. The better practice is to include express stakeholder clauses in the contract so that all
parties are clear on their rights and obligations.

Skinner v Trustee of Property of Reed (1967) Ch. 1194

The plaintiff, S., who was the mortgagee under two mortgages of a farm to secure a total of £22,000
with interest, bought it at an auction free from encumbrances, for the reserve price of £30,000 and paid
a deposit of £3,000 to the auctioneers, V., as stakeholders. No special terms had been agreed as to the
employment of the auctioneers. In fact, though not to the prior knowledge of S., there was a further
charge to a bank, and the total amount needed to discharge all the encumbrances exceeded the purchase
price.

Before the time for completion, the vendors, R. and his wife, were adjudicated bankrupt. The trustee in
bankruptcy laid no claim to the deposit but V. asserted a lien as auctioneers for their scale fees and
disbursements. After the commencement of proceedings by S. to have the whole of the deposit with
interest applied in or towards discharging the mortgages, the contract was completed by a conveyance
to which the bank was a party and under which it was paid the sum owing to it and released the
property from its charge:

Held, the auctioneers' lien was confined to so much of the deposit as became the property of the
vendors. None of the deposit became the property of the vendors because it was their duty to
discharge the encumbrances; the purchaser was entitled on completion to apply not only the balance
of the price but also the deposit in the hands of the stakeholders in discharge of incumbrances
instead of paying it to the vendors.

Rowe v  May (1854) 18 Beav 613

Mortgagor definition: the borrower in a mortgage, typically a homeowner

Mortgagee definition: the lender in a mortgage, typically a bank.

A mortgagor contracted to sell the estate, and one of the conditions was that the purchaser should pay a
deposit to the auctioneer. The mortgagee afterwards concurred in and adopted the contract. A loss
having occurred by the insolvency of the auctioneer.

Held: as between the purchaser and mortgagee, the latter stood in the shoes of the vendor and bore the
loss.
Elias v George Sahely & Co. (Barbados) [1983] 1 A.C 646 -
Facts: On February 10, 1975, the plaintiff and the defendant made an oral agreement for the sale of
premises to the plaintiff. On the same day the plaintiff's attorney wrote to the defendant's attorney
confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 per cent. of the
agreed price describing it as a deposit which he directed should be held by the defendant's attorney as
stakeholder pending completion of the contract of sale. He asked for an acknowledgement and receipt
for the money. The defendant's attorney signed and sent a receipt. The receipt stated that he had
received the money as deposit on the property "agreed to be sold" by the defendant to the plaintiff. The
defendant refused to complete the sale. The plaintiff brought an action claiming specific performance
of the contract. 
Held: 1) that on the facts the parties had concluded an oral contract of sale on February 10 and that
nothing contained in the letter of that date indicated that they did not intend to be bound until a formal
written contract had come into existence
(2) That the acceptance of a deposit as stakeholder did not preclude the recipient from acting as
agent and that on the facts the defendant's attorney had had authority to sign the receipt on behalf
of the defendant
(3) That where the terms of a document signed by a party charged with a contract referred to an oral
agreement for the sale of land, parol evidence was admissible to identify any other document which
related to the oral agreement and the document so identified could be read together with that signed by
the party charged and if the two documents together contained all the terms of a concluded contract,
they were sufficient to constitute a memorandum in writing of the oral agreement as required by
section 2 of the Statute of Frauds, and that, accordingly, the trial judge had rightly admitted the parol
evidence and the letter of February 10 and, since the letter had contained all the terms of the concluded
contract, it could be read together with the receipt and, since the two documents constituted a sufficient
signed memorandum, the contract was enforceable and the plaintiff entitled to specific performance

PAYMENT OF DEPOSIT TO THE VENDOR’S AGENT/ATTORNEY

1. The agent is accountable to the vendor for the interest earned
2. Any action by the purchaser brought to recover the deposit must be brought against the vendor
Hall v Burnell (1911) 2 Ch 551 at 554 - If a purchaser persistently refuses to perform the contract,
the deposit will be forfeited and belongs to the vendor, who has not defaulted and has tried to force
the purchaser to carry out his bargain. If the deposit is paid to a stakeholder, the deposit cannot be
left indefinitely in the hands of the stakeholder…Where the purchaser has repudiated the contract,
this establishes the right of the vendor to retain it.

Ellis v Goulton (1893) 1 QB 350 - In some cases, a deposit is paid to an auctioneer; in such a case,
the auctioneer receives the deposit on behalf of both vendor and purchaser, to hand it over to one or
the other, according to the event, and is in the position of a stakeholder. In this case, a condition of
the agreement was that the purchaser would pay the money to the vendor's agent. The vendor failed
to make out a title to the property; therefore the purchaser became entitled to have the deposit paid
back to him. He now sues the vendor’s agent. It cannot be said that the agent was a trustee for the
purchaser. The cases draw the distinction between a stakeholder and an agent for one of the parties;
the former is the agent of both, but the latter is the agent of one only, and responsible only to that
one. The question of following the money only arises where there is the fiduciary relation, which
does not exist here. The action of suing the agent for the deposit cannot be maintained
Edgell v Day (1865) LR 1 CP 80 - Where a solicitor acting for a vendor receives the deposit, the law
will not imply, as in the case of an auctioneer, that he receives it as stakeholder. If he professes to
receive it as agent for the vendor he is bound to pay it over to him on demand.
What is the position where the Attorney at law may be acting for both parties? Powers of Attorney-
Where parties are abroad or are unable to act they may appoint an attorney to act on their behalf. The
attorney simply acts on behalf of the principal and is not made a party to the agreement in his personal
capacity .Powers of Attorney must be done by Deed

PAYMENT OF DEPOSIT TO ESTATE AGENT

1. An Estate agent is an agent of the Vendor and in general only to find a purchaser.
2. If the deposit is paid to him and he signs a receipt “as Agent”, he is bound to pay the deposit to
the principal on demand.
3. Agent is accountable to the Vendor for any interest earned
4. Any action to recover the deposit must be brought against the Vendor/Principal

Position when deposit is lost or misappropriated by the deposit holder. In such a case it may be
necessary to distinguish between the position when (i) there is a binding contract between the parties
and (ii) there is no binding contract (e.g. in agreement made “subject to contract”).

Ryan v Pilkington (1959) 1 ALL ER 689 – estate agent had ostensible authority to take a deposit as
agent for the vendor on the facts of the case
An estate agent was instructed by an owner to find a purchaser of property and introduced a
prospective purchaser who arranged to buy the property “subject to contract”. The prospective
purchaser, after he had visited the vendor and discussed the prospective sale, went back to the estate
agent and paid him £100 as deposit; the prospective purchaser visited the premises a second time and,
after discussing the price, returned to the estate agent and paid him a second £100. The estate agent
gave receipts for these sums, signing the first “as agent for” the vendor and the second, on the same
piece of paper, “as agent”. Subsequently the prospective purchaser visited the vendor a third time,
when the vendor told him that the sale was off and, being told of the deposits which had been paid,
advised the purchaser to get the £200 back from the estate agent. The prospective purchaser brought an
action for the return of both deposits against the estate agent and the vendor.
Held – (by Hodson, LJ) an estate agent instructed to find a purchaser had ostensible authority to take a
deposit as agent for the vendor and (by Morris and Willmer, LJJ) on the facts of this case the estate
agent had ostensible authority to take the deposits as agent for the vendor; (by the court) the vendor
was, therefore, liable to repay the £200 deposit received by the estate agent as the vendor's agent.
Barrington v Lee (1971) 3 ALL ER 1231 - If an estate agent received the deposit as 'stakeholder' then
it was he who had made the promise to repay and he alone could be sued on it; if the estate agent
received the deposit 'as agent for the vendor' (having actual authority on that behalf) the estate agent
was liable to hand the deposit to the vendor on demand and only the vendor could be sued on it.
Sorrell v Finch (1976) 2 ALL ER 37 - The vendor consulted E (an estate agent) to sell his house.
Nothing was said about the taking of deposits from prospective purchasers prior to contract. When the
plaintiffs came to see the house, the defendant knew that two other possible purchasers paid a deposit
to E. The plaintiffs paid a deposit to E. The receipt stated that it was for a deposit and concluded with
the words 'subject to contract'. No reference was made to the defendant or the capacity in which E
received the deposit, ie whether as agent for the defendant or as stakeholder. E disappeared and the
plaintiffs brought an action against the defendant for the return of the deposit.

Held: The engagement of an estate agent by a prospective vendor did not confer on the estate agent any
ostensible authority to receive as agent of the vendor a pre-contract deposit from a would-be purchaser.
Where a deposit was paid to the estate agent in such circumstances the purchaser was at all times until
contract the only person with any claim or right to the deposit moneys and his was a right on demand;
the vendor had no claim or right over the deposit moneys. Since the defendant had not expressly
authorised E to receive the deposit on his behalf, he was not under any liability to the plaintiffs to repay
it following E's default.

FORFEITURE OF DEPOSIT BY THE VENDOR

1. If the purchaser fails to complete the sale the vendor has the right to forfeit the deposit although
there is no express stipulation to that effect. See Hall v Burnell of a contract that provides for
instalments.
2. The right to forfeit arises as soon as the purchaser is in default e.g. time is of the essence.
3. The Vendor must be ready, willing and able to complete

Chillingworth v Esche [1924]1Ch 97- By a document of July 10, 1922, the purchasers agreed to
purchase property from the vendor "subject to a proper contract" and paid 240l. "as deposit and in part
payment of the purchase money." The purchasers signed the document and the vendor added and
signed a receipt for the deposit confirming the sale. A proper contract was subsequently prepared. The
purchasers refused to sign it and claimed the return of the deposit:-

Held, the document of July 10, 1922, was only conditional, and did not constitute a firm contract, and
the purchasers were in the circumstances entitled to recover the deposit.

Worker’s Trust and Merchant Bk v Dojap (supra)

Monnickendam v Leanse (1923) 39 TLR 445 (supra)
 RECOVERY OF DEPOSIT BY PURCHASER
1. Where an agreement is made “subject to Contract” and a deposit paid.
2. Default by the Vendor to perform his part or a condition of the contract. e.g. (a) defective title. (b)
unreasonable delay. (c) misrepresentation or non-disclosure. (d) planning approval.
3. Without fault, where the contract gives the Purchaser special power to rescind.

MISREPRESENTATION

Essentials of misrepresentation

 A misrepresentation is a false statement by one party of some material fact which has induced the other
party to enter into the contract. Therefore, it must be made before the contract. There is no remedy until
the contract is concluded. The remedy will be lost if the misrepresentation becomes a term of the
contract. Misrepresentation consists of an active statement or suggestion of the false but non-disclosure
of known facts may also amount to misrepresentation.

1. Where a statement is true when made but is falsified by later events which come to the notice of
the representor, he must correct the false impression.

2. A statement may literally be true and still be a misrepresentation, if the person making it omits
some material fact which makes the statement misleading or only a half-truth.

Dimmock v Hallett (1866) 2 Ch. App 21

The purchaser purchased property at an auction. The particulars of sale described the land as “fertile
and improvable” and stated that a farm thereon could be rented at £290 per year. The purchaser
discovered that part of the land was not fertile and the farm could not be rented for £290. Additionally,
the particulars stated that named tenants gave notice to quit but omitted the fact that two other tenants
also gave notice to quit. 

Held: The representation regarding the rent amounted to misrepresentation since it was untrue and was
calculated to mislead the purchaser and increase the apparent value of the property. The statement that
the land was “fertile and improvable” was not a misrepresentation; it was a mere flourishing
description by an auctioneer. As to the omission to state that the two tenants had given notice to quit,
this was a misrepresentation calculated to mislead a purchaser because the purchaser must have been
led to believe that they were continuing tenants. These misrepresentations entitled the purchaser to be
discharged.
 3. Whenever there is a duty to take reasonable care to do something and/or a fiduciary duty which
is breached any resulting contract or disposition may be set aside. 

Hedley Byrne v Heller (1964) AC 465

The appellants placed advertising orders for a company. They asked their bankers to inquire into the
company's financial stability. Their bankers asked the respondents, the company's bankers. The
respondents gave favourable references but stipulated that these were "without responsibility." In
reliance on these references the appellants placed orders which resulted in a loss of £17,000. 

Held, a negligent, though honest, misrepresentation, may give rise to an action for damages for
financial loss caused thereby, apart from any contract or fiduciary relationship, since the law will
imply a duty of care when a party seeking information from a party possessed of a special skill trusts
him to exercise due care, and that party knew or ought to have known that reliance was being
placed on his skill and judgment. However, since here there was an express disclaimer of
responsibility, no such duty was, in any event, implied.

Esso Petroleum v Mardon (1976) 2 WLR 583- A statement was a negligent representation made by
a party holding himself out as having special expertise in circumstances which gave rise to the duty
to take reasonable care to see that the representation was correct; that duty of care existed during
the precontractual negotiations and survived the making of the written contract which was the
outcome of the negotiations

Gross v Lewis Hillman Ltd (1970) Ch. 455 (1969) 3 ALL ER 1476- The representation must be
addressed to the party misled, or to a class of parties to which he belongs. The right to rescind does not
run with the land so that the right to rescind is barred if the person misled conveys the property to a
third party.

Bars to rescission for misrepresentation:

(1) Affirmation of the contract- where the victim of the misrepresentation, having discovered the true
facts, evinces an intention to continue the contract;
(2) Impossibility of restitutio in integrum- A contract cannot be rescinded unless it is possible to restore
the parties substantially to their original position;
(3) Intervention of third party rights- the right to rescind is a mere equity and is therefore defeated by a
purchaser for value of any interest in the property, legal or equitable, without notice of the right.

Misrepresentation by Agent

Lloyd v Grace Smith & Co. (1912) AC 716- A principal is liable for the fraud of his agent acting
within the scope of his authority, whether the fraud is committed for the benefit of the principal or for
the benefit of the agent.
Fazal v Annamanthadoo (1991) 48 WIR 150 (Guy.)- The appellant owned certain land. He signed an
authorisation empowering the respondent, a property agent, to sell the land on his behalf and to enter
into a contract for its sale. The appellant determined the price for which the land would be sold and the
conditions of sale, which included a commission payable to the respondent. The appellant handed to
the respondent the transport of the land but did not inform the respondent that the land was subject to
three incumbrances (an unredeemed mortgage and two agreements for the sale of small portions of the
land to a third party which had been registered at the Deeds Registry as miscellaneous deeds). The
respondent found a purchaser and entered into a contract with him at the price required by the
appellant. The contract of sale was drafted by the appellant's attorney at law and the prospective
purchaser paid a deposit (as required by the appellant) and the other conditions of sale specified by the
appellant were incorporated into the contract. The contract also, however, contained a guarantee that
the purchaser would obtain a title free of incumbrances and required that the transport be passed within
four months, time being of the essence. The appellant decided not to sell the land to the prospective
purchaser and rejected the respondent's authority to sell the land. The respondent instituted proceedings
for the payment of his commission. The appellant claimed that he had rescinded the respondent's
authority before the contract had been entered into; in the alternative, the appellant claimed that the
respondent had exceeded his authority by introducing terms into the contract for sale which the
appellant had not agreed (ie offering title free from incumbrances, requiring transport to be passed
within four months and making time of the essence). The trial judge held that the appellant was in
breach of the agency agreement and ordered that he should pay the commission due to the respondent.
The appellant appealed to the Court of Appeal.

Held, dismissing the appeal, (1) that the test whether or not the purchaser was ready, willing and able
to proceed must be applied at the date when transport ought to be passed, and not earlier; the appellant
who was himself in breach of his agency agreement with the respondent by refusing to proceed with
the sale could not be allowed to invoke his own default as a defence to the action brought by the
respondent.

(2) That when the appellant instructed the respondent to sell the property and gave him a copy of the
transport, he necessarily implied that the property to be sold was that described in the transport and,
further, that (in accordance with rule 21 of the Deeds Registry Rules) it was to be sold free from any
mortgage annotated thereon.

(3) That the two agreements by the appellant for the sale of small portions of the land to a third party
(of which the respondent had no knowledge) were not rights or interests 'imposed or attached to
immovable property by agreement or otherwise' and accordingly did not fall within the term 'registered
interests' in section 2 of the Deeds Registry Act (which would have resulted in their being excluded
from the property to be sold in accordance with section 22(1) of that Act); accordingly, the respondent
had not exceeded his authority by offering the land for sale free from all incumbrances.

(4) That, although the respondent had been in breach of his agency agreement by inserting a time
clause into the contract for sale of the land, such a clause was normal conveyancing practice and in the
event of a failure to observe the time clause equity would grant relief; accordingly, such a breach of the
agency agreement was merely a technical one.

(5) That making time of the essence of the contract for the sale of the land was in excess of the
respondent's authority under the agency agreement; further, the inclusion of such provision could not
 be deemed to have been implied in the agency agreement on the ground that it was necessary for the
business efficacy of the contract for sale; but within the context of Guyanese land law the inclusion of
such a provision could only enure to the benefit of the appellant who could not take advantage of such
provision to avoid his obligations to the respondent.

Exclusion clauses: 
 Any contract containing a term excluding or restricting any liability or any remedy for
misrepresentation is ineffective except insofar as the person relying on the exclusion clause can show
that it is fair and reasonable.

NON-DISCLOSURE

Yandle & Sons v Sutton (1922) 2 Ch. 199 at 210 - The purchaser is only liable to take property subject
to those defects which are patent to the eye, including those defects which are a necessary consequence
of something which is visible to the eye

Bell v Lever Brothers (1932) AC 161 at 227 - The failure to disclose a material fact which might
influence the mind of a prudent contractor does not give the right to avoid the contract. The principle of
caveat emptor applies outside contracts of sale.

Shepherd v Croft (1911), 1 Ch. 521 - Where there is a latent defect in property, but the defect is not
so material as to bring the case within the principle of Flight v.  Booth (1834), the purchaser is not
entitled to have the contract rescinded, even if the defect is known to and not disclosed by the vendor.

Re Leyland v Taylor (1900) 2 Ch. 625

Non-disclosure arises where there is a mistake in the particulars because some material fact is omitted.
Not every non-disclosure will amount to a breach of the contract as a vendor is not under a duty to
disclose every single matter concerning his property.

MISDESCRIPTION
1. Vendor is unable to convey property corresponding exactly to that described in the contract. e.g. (a)
mistake as to quantum. (b) mistake as to Vendor’s interest.

2. It involves a breach of contract by the Vendor.

3. Misdescription must be a statement which purports to be of fact.

Flight v Booth (1834) 1 Bing NC 370

The particulars of sale of leasehold premises stated, that under the original lease ‘no offensive trade
was to be carried on and the premises could not be let to a coffee-house keeper or working hatter.’ The
original lease, when produced, appeared to prohibit the business of baker, butcher, poulterer, cheese
seller, herb seller, coffee-house keeper, working hatter, and many others, and the sale of coals,
potatoes, or any provisions.

Held: there was such a material discrepancy between the particulars and the lease, as to entitle a
purchaser to rescind his contract. Where the misdescription, although not proceeding from fraud, is
in a material and substantial point, so far affecting the subject-matter of the contract that it may
reasonably be supposed, that, but for such misdescription, the purchaser might never have entered
into the contract at all, the contract is avoided altogether, and the purchaser is not bound to resort to
the clause of compensation. In such a case, the purchaser may be considered as not having purchased
the thing which was really the subject of sale.

The principles which the Court applied were purely principles of law, and the Chief Justice, after referring to
some of the decided cases as to misdescription, and stating that there was a discrepancy between them, said
(2): "We think it is, at all events, a safe rule to adopt, that where the misdescription, although not
proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the
contract that it may reasonably be supposed, that, but for such misdescription, the purchaser might never
have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is
not bound to resort to the clause of compensation. Under such a state of facts the purchaser may be
considered as not having purchased the thing which was really the subject of the sale.

An unwritten rule of conveyancing practice is that if the misdescription is insubstantial i.e. at or

under 10%, then the transaction will continue and the purchasers may look for an abatement in
price

Re Fawcett & Holmes Contract (1889), 42 Ch. D150

Property was put up for sale under the description of a "messuage containing 1372 square yards."
There was a condition that errors of description should not annul the sale, but if they were pointed out
before completion compensation should be allowed for them. The property had originally contained
1372 square yards, but the former owner had sold off 339 square yards, so that the property contained
only 1033 square yards, which were separated by a wall from the 339 yards, and were fenced round
and well-defined:-

Held, the purchaser got substantially what he contracted to buy; the deficiency of quantity, though
considerable, did not so affect the substance of what he bargained for as to take the case out of the
condition, and he must complete with compensation. The rule in Flight v. Booth, as to the nature of the
misdescription which will entitle a purchaser to rescind notwithstanding a condition for compensation,
applied.

Watson v Burton (1957), 1 WLR 19

By an agreement in writing, a purchaser agreed to purchase freehold premises. The property, which was
stated in the particulars to amount to approximately 3,920 square yards, was found to contain
approximately only 2,360 square yards. The purchaser failed to complete the purchase. The vendor
commenced an action for specific performance, and the purchaser counterclaimed for rescission of the
contract. 
Held  , A misstatement to the extent of 40 per cent. of the area was “substantial”. The purchaser had
been prejudiced by the misstatement. The purchaser had not by his conduct waived his right to rescind.
Without the purchaser's consent the vendor was not entitled to specific performance with
compensation.

Jacobs v Revell (1990) 2 Ch. 858

The defendants sold by auction to the plaintiff a freehold property described in the particulars of sale as
containing 5A. 0R. 26P., and as bordering on a lake on S. Common, the sale being subject to the
following condition: "… if any error or omission in the particulars be discovered, it shall not annul the
sale, nor shall any compensation be allowed by the vendors to the purchaser in respect thereof." The
only part of the property to which a good title was shewn contained 4A. 3R. Another part of the
property bordered on the lake, and as to this the only title offered was what purported to be a title by
possession for less than forty years. The plaintiff claimed rescission of the contract and a return of the
deposit paid by him. 

Held, even if the defendants had established a possessory title to the border land for twelve years, that
would not have been sufficient, as the contract, so far as it related to that land, was an open one, in
which case a forty years' title by possession was required; the defendants were not entitled to specific
performance in respect of the part of the property to which a good title had been shewn; and the
plaintiff was entitled to rescission of the contract and the return of his deposit.

Salisbury v Diasb (1963) 5 WIR 497

The appellant had agreed to purchase from the respondent an area of land described in the written
agreement as the eastern half of lot 201 Barr Street, Kitty, with the buildings and erections thereon. The
half lots ran in a general north to south direction. At the time of the agreement both parties understood
that an area of land situate between palings on its eastern and western sides constituted the eastern half
of lot 201. They were thus ad idem as to the property the subject matter of the agreement. Upon survey,
however, it was discovered that the parcel of land between the palings fell 17.35 feet within the true
western boundary of that half lot and 6.25 feet outside the true eastern boundary, encroaching to that
latter extent on lot 195 which was owned by a stranger. The portion falling 17.35 feet outside the
western palings had for over 12 years been in the occupation of the owners of the western half of lot
202. The area of land which the respondent could lawfully transport to the appellant was 3,460 square
feet, whereas the parties had contemplated an area somewhat over 20 per cent in excess of that figure.

Held: (i) where a vendor is unable to give title as to a part of the property intended it is for the
purchaser to decide whether or not he wishes to go on with the contract;
(ii) in the exercise of its equitable jurisdiction a court may order rectification of a misdescription due to
the common mistake of the parties;

(iii) whether there should be rectification and whether the contract so rectified should be specifically
performed with or without abatement of the purchase price or should be rescinded are questions which
must be decided on the position as it was before the trial judge by whom a judicial discretion had to be
exercised;
(iv) before the trial judge the appellant as purchaser wished to go on with the contract and the issue was
whether specific performance of the contract rectified to include the correct description of the property
which the respondent could legally convey should be granted with or without an abatement of the
purchase price;

(v) in considering whether abatement should be ordered the contract price of $10,000 must be related
not only to the deficiency of land area but also to the value of the buildings and erections thereon and
the existence of a servitude;

(vi) the burden was on the appellant to give some evidence in order to establish what abatement, if any,
should be granted; this evidential burden the appellant failed to discharge;

(vii) on the evidence before the trial judge he would not have erred in finding (as he did on other
grounds) that there should be a decree of specific performance without abatement.

Appeal dismissed; order varied.

Yassin v Egerton (1959) 1 WIR 493

VY negotiated with GE for the purchase of two buildings which are situate on the eastern portion of
GE's land. They agreed on a price of $9,000 and an agreement was entered into between them in which
the portion of land agreed to be purchased by VY was described as the eastern half of lot 41. This
description is in accordance with a certificate given by the Town Clerk certifying that the provisions of
the Ordinance with respect to subdivisions of lots would not be contravened by the passing of a
transport for the eastern half of GE's land. Subsequently, VY found out that the two buildings he
agreed to purchase encroached on the western half of lot 41.

In a suit against GE he asked the court to rectify the contract and to grant him specific performance of
the contract when so rectified.

Held: (i) there was a common mistake leading to the misdescription of the property in the agreement
and that the claim to have the contract rectified has been clearly established.
(ii) that in the circumstances of the case damages would not be an adequate remedy and consequently
specific performance of the contract as rectified should be ordered.

(iii) that if GE is unable to pass a transport for the portion of the western half of the lot on which the
two buildings stand by reason of the fact that the Town Clerk is not prepared to give her the necessary
certificate to enable her to do so, then she shall give title by transport to the eastern half of lot 41 and
shall demise to VY the land in the western half on which the buildings sold to VY actually stand. The
demise shall be for 999 years.Appeal allowed.

Re Weston and Thomas Contract (1907) 1 Ch.D 244

INSUBSTANTIAL MISDESCRIPTION
1. The Vendor will be able to enforce the contract with abatement in price. See Jacobs v.
Revell (above)
2. The Purchaser’s position is stronger than the Vendor’s
3. The Purchaser must make a claim before completion unless misdescription was not
discoverable before completion
4. After completion the Purchaser can sue on implied covenants for title
5. If misdescription is against the Vendor, he cannot claim compensation
UNENFORCEABLE CONDITIONS OF SALE
1. “No misdescription shall annul the sales”
2. The Purchaser shall not be entitled to compensation for any misdescription
In above cases where misdescription is substantial the Vendor cannot enforce the contract.

REMEDIES
1. Common law remedies
2. Where misrepresentation became a misdescription the Purchaser is restricted to his remedies for
the misdescription.
3. Misrepresentation Act – provides that…..a contract may be rescinded…for misrepresentation
n/w/s/ that the misrepresentation becomes a term of the contract.
4. The purchaser may pursue both misrepresentation and misdescription.

SPECIMEN INSTRUCTION FORMS

SEE MANUAL

DRAFTING OF AGREEMENTS FOR SALE OF LAND AND

PRECEDENTS

SOME POINTS WHICH SHOULD BE BORNE IN MIND BY THE CONVEYANCOR

ON THE SALE OF FREEHOLD PROPERTY

1. THE PURCHASER(S)

(1) Full name, including middle name; private (and business) address; occupation; phone no. proper
identification.
(2) Married Women? Name and address of her husband.
(3) To whom is the property to be conveyed? The purchaser alone or to him and other persons as joint
tenants or tenants in common. Remember that in the West Indies tenants in common can hold a legal
estate in land. Is a trust or settlement to be created etc.?
(4) Is the purchaser a corporation/firm or a minor? Make enquiries as to capacity to hold land. Alien?
(5) Is there a fiduciary relationship between the vendor and purchaser, e.g. attorney and client?

2. THE VENDOR(S)

(1) Same as (1) in 1 above

(2) Same as (2) in 1 above
(3) Is vendor ill or proposes to go abroad? If so, ensure that he appoints an attorney to execute
conveyance and so avoid delay in completion.
(4) Is vendor conveying in any special capacity e.g. as beneficial owner or a personal representative,
mortgagee, trustee, tenant for life etc?

3. THE PROPERTY

(1) Description:
Situation, Identity, Area, Frontage, Depth, Any buildings thereon? Boundaries, Is it being conveyed by
reference to a plan or by description of boundaries. Survey desired?
(2) User:
How was property being used during vendor’s ownership? Are there any existing restrictive covenants
affecting the property? For what purpose does purchaser require to use the property? Is the vendor
imposing any new restrictive covenants? Find out about Planning control affecting the property before
the contract is entered into.
(3) Right of access required?
The purchaser’s attorney must know from his client whether a right of way is required by him. If there
is no contract to grant a way, the vendor need not deduce a title to one (Curling v. Austin (1862) 10
W.R. 682- On the sale of a house or stables in a cul-de-sac, the vendor is not bound to show a title to
the roadway) unless the land is landlocked.
Denne v Light 26 LJ. Ch. 459 - In the absence of special circumstances, a court of equity will not
enforce specific performance of a contract for the purchase of land which is silent as to the means of
access to it, when it is reasonably uncertain whether any means of entering on the land at all times can
be conferred on the purchaser
 Bear this point in mind when an estate is being split up. Is the vendor reserving to himself a right way
over property being sold?
(4) Existing easements to which property is subject?
Tenancies? Are there any tenants on property protected by Rent Restriction legislation? Any insurances
on property? How would the insurance money be applied if the property destroyed after contract but
before completion?
(5) Utilities, Rates and Taxes.
(6) Mines and Minerals excluded?
(7) Inspection:
Whenever possible the property itself should be inspected by or on behalf of the purchaser before the
contract for sale is approved. Look for quasi-easements, and signs of occupation by a third party – see
Hunt v Luck (1902) 1 Ch. 428. Ascertain whether there are fences, party walls, roadways etc. that the
purchaser may be liable to maintain or repair. Enquire about subsidence, dry rot, termites etc. – these
may be patent defects. Look out for nuisances which may affect the property.

4. IS SALE BY AUCTION OR THROUGH REAL ESTATE AGENTS?

5. CONSIDERATION

What is the purchase price; is it a gift; or in consideration of marriage? Is payment to take place by
instalments? Is part of purchase price to be left on mortgage? Is a valuation of the property needed?

6. FIXTURES/GOODWILL/FURNITURE
Find out about these. The Vendor should warrant that these are free from an liens or encumbrances
unless there is an agreement to the contrary.

Remember story about building purchased with furniture, but agreement not specifying what
would happen to the furniture and the vendor later taking the furniture.

7. DEPOSIT: SEE ABOVE ‘DEPOSIT’ NOTES

 8. THE TITLE

When, and by what document title shall commence, or in other words, what
document shall form the root of title? Will there be any special provision in the
contract restricting the length of title? 37 Conveyancing & Registration of Title –
2020/2021 Where are the title deeds? They should at some stage be inspected. (In
Trinidad & Tobago and St Vincent & the Grenadines the original title deeds are kept
at the Registrar’s office, but this is not so in other territories). The vendor’s attorney
usually prepares an Abstract of Title or a list of documents and events relating to title.
Who will have custody of the title deed on completion? As a general rule, when the
vendor is selling all the property mentioned in the title deeds, these deeds must be
handed over to the purchaser. But if he is selling only a part of the property he (the
vendor) is entitled to retain them

9. EXISTING MORTGAGES AND CHARGES

Is the property now subject to any mortgage or charge? If so does the purchaser wish
to take over the loan? In such a case the mortgagee need not join in the conveyance of
the property which will then be conveyed subject to the mortgage.
If the purchaser does not wish to take over the loan, then the property will have to be
conveyed and released either in a conveyance or by the mortgagee joining in (or
being made a party to) the conveyance to the purchaser. In such a case, will the whole
or any of the purchase money be paid to the mortgage? What is the exact amount,
with interest, due to date? There may be a need for settlement letters or redemption
statements as well as a Deed of Release and Reconveyance.

10. COMPLETION
Date of completion? This is usually 90 days or 120 days it is entirely up to the parties
to fix the time for completion. Is time to be the essence of the contract?

11. POSSESSION:
Will vacant possession be given on completion? Will possession be given before
completion? Will vendor remain in possession for some time after completion? Keys?

12. PREVIOUS DISPUTES:

Have there been any previous disputes over title to the property? You must ensure
that “a law suite” is not being purchased.
 13. FEES

14. RECORDING/REGISTRATION

Under the Common Law Systems an Agreement for Sale can be recorded or
registered. The practice is usually not done unless there is a fear that one of the
parties may not honour their commitment. Under the Registration of Title Systems-
Agreements for Sale are not registrable ( an equitable interest) but the parties
especially the Purchaser can be protected by the filing of a caveat/caution or stay of
registration.

THE COMPLETION OF THE CONTRACT FOR SALE

RIGHTS AND DUTIES PENDING COMPLETION:

Effect of Binding Contracts: Vendor becomes trustee for the Purchaser:

1. The Purchaser becomes the equitable Owner of the Property with the right to
dispose of the property.
2. Until completion the Vendor remains the legal Owner.
3. Vendor becomes trustee to the Purchaser.
(a) Duty to keep the property in reasonable condition.
(b) Duty to repair the property.
(c) Lien on the property for the balance of the Purchase money – refers to an
equitable lien and will not apply to Guyana.
(d) Right to retain possession
(e) Rents and profits are for Vendor’s use and benefit.
(f) Vendor must discharge the outgoings e.g., rates and taxes

Clarke v. Ramuz (1891) 2 Q.B. 456

While a vendor remained in possession, a trespasser without his authority or
knowledge removed large quantities of surface soil from the property. A conveyance
of the land was subsequently executed, and completion took place, neither party
being then aware of the removal of soil:-

Held, notwithstanding the conveyance, the purchaser could maintain an action against
the vendor for a breach of trust in taking no care to prevent such removal of the soil.
Where a vendor under a contract for sale of land keeps possession until completion
and payment of the purchase-money, he is in the position of a trustee for the
purchaser, and bound as such to take reasonable care to preserve the property.
Phillips v Lamdin (1949) 2 KB 33
The plaintiff, a naturopath, entered into a contract with the defendant for the purchase
of leasehold premises which she required for professional and residential use.
Completion date was fixed as March 28, 1947. In the event of failure to complete on
the agreed date, the contract provided for the payment of interest by the purchaser on
the outstanding purchase-money from the date fixed for completion to the date of
actual completion. The contract also laid down a time limit of four days, which the
plaintiff in fact exceeded, for the return by the purchaser to the vendor of the
engrossed assignment after a draft thereof had been agreed by the vendor.

The plaintiff had issued a writ for specific performance on April 15, 1947, but the
matter never came to trial as possession was granted on June 5, 1947. She now
claimed damages including damages for loss of earnings and expenses caused by the
vendor's failure to give her possession on March 28. She also claimed the
reinstatement of an Adam door removed by the vendor at some time between the date
of the contract and completion.

Held. The vendor's delay in completion of the contract was wilful and wrongful, and
the plaintiff was entitled to recover the damages claimed calculated from the date
when her own default ceased.
Held further that the defendant should be ordered to reinstate the door, without
having an option to pay its value.

Cedar Transport v First Wyvern Co. Ltd. (1980) 258 EG 1077

 Claim by purchasers of a warehouse building against vendors and architects

employed by vendors for alleged breach of contract and breach of duty —
Dispute arose from provisions in agreement to purchase by which vendors
undertook to carry out and complete certain works including works necessitated
by removal of heavy machinery and equipment used by previous occupiers —
Claims under heads of defects, delay and vandalism examined in detail by
judge, the claim in respect of defects being against the architects — Architects
held to be acting as experts, not arbitrators, but no breach of duty established
against them — Claims against vendors under heads of delay and of negligence
resulting in vandalism likewise not established — Action fails

Lysaght v Edwards (1876) 2 Ch. D 499 esp. at pgs. 506-507 per Jessel M
As regards real estate, for a contract to be valid, the vendor must make a title
according to the contract, and the contract will be invalid unless he has either made
out his title according to the contract or the purchaser has accepted the title, for
however bad the title may be the purchaser has a right to accept it, and the moment he
has accepted the title, the contract is binding upon the vendor… If anything happens
to the estate between the time of sale and the time of completion of the purchase it is
at the risk of the purchaser. If it is a house that is sold, and the house is burnt down,
the purchaser loses the house. He must insure it himself if he wants to provide against
such an accident. If it is a garden, and a river overflows its banks without any fault of
the vendor, the garden will be ruined, but the loss will be the purchaser's. In the same
way there is a correlative liability on the part of the vendor in possession. He is not
entitled to treat the estate as his own. If he wilfully damages or injures it, he is liable
to the purchaser; and more than that, he is liable if he does not take reasonable care of
it
Riverton v Haddad (1986) 40 WIR 236
The appellant contracted to sell land to the respondent. Sometime later the appellant
sued the respondent for the balance of the purchase money. In due course, the
appellant sold the land to a third party. The respondent sought a declaration that the
all money received from the third party was held by the appellant as trustee for the
respondent. 

Held, when the contract was executed the appellant became a trustee of the land;
accordingly, the appellant having sold the land to a third party, it held the proceeds of
sale on trust for the respondent.

INSURANCE
The question of who is entitled to insurance moneys due on a policy of insurance (fire
or otherwise) effected on the property should be gone into.

1. The Property is at the risk of the Purchaser as soon as the contract is binding.
Common Law
1. If the property is damages by fore before completion, the Purchaser must pay the
purchase price in full and receive the property in its damaged condition.
2. To avoid the above the Vendor must expressly assign the benefit of the insurance
to the Purchaser
Rayner v Preston (1881) 18 Ch. D. 1
A vendor contracted with a purchaser for the sale of a house which had been insured
by the vendor against fire. The contract contained no reference to the insurance. After
the date of the contract but before the time fixed for completion the house was
damaged by fire, and the vendor received a sum of money from the office:-
Held, that the purchaser, who had completed his contract, was not entitled as against
the vendor to the benefit of the insurance.
Castellain v Preston (1883) 11 QBD 380
According to the doctrine of subrogation, as between the insurer and the assured, the
insurer is entitled to the advantage of every right of the assured, whether such right
consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being
insisted on or already insisted on, or in any other right, whether by way of condition
or otherwise, legal or equitable, which can be, or has been, exercised, or has accrued,
and whether such right could or could not be enforced by the insurer in the name of
the assured, by the exercise or acquiring of which right or condition the loss against
which the assured is insured, can be or has been diminished.

A vendor contracted with a purchaser for the sale, at a specified sum, of a house,
which had been insured by the vendor with an insurance company against fire. The
contract contained no reference to the insurance. After the date of the contract, but
before the date fixed for completion, the house was damaged by fire, and the vendor
received the insurance-money from the company. The purchase was afterwards
completed, and the purchase-money agreed upon, without any abatement on account
of the damage by fire, was paid to the vendor:-

Held, in an action by the company against the vendor, that the company were entitled
to recover a sum equal to the insurance-money from the vendor for their own benefit.

EFFECT OF DEATH:
On death of the Purchaser before completion, the Vendor must convey to his personal
representatives. On death of the Vendor before completion his personal
representatives must convey to the Purchaser.

VACANT POSSESSION:
Statutory meaning of Possession - "includes receipt of rents and profits or the right to
receive the same if any." – Section 2 of the Conveyancing and Law of Property
Act of Dominica
1. “Free from encumbrances” imply that it is a term of the contract that the purchaser
on completion shall be put in actual possession.
2. “Vacant possession” means free from any occupation by the Vendor or a third
party and free from any claims to a right to possession.
Note- the remedies for failure to give vacant possession.
Cases:
Cook v Taylor (1942) Ch. 349
A vendor entered into a written agreement with a purchaser for the sale of a house.
The agreement contained no reference to vacant possession, but particulars containing
the statement "vacant possession on completion" were delivered by the vendor's
agents to the purchaser. Before the date fixed for completion the house was
requisitioned by the government under certain Regulations:-

Held, the particulars were used in connection with the contract and were incorporated
therein and therefore there was a contract expressly to sell the property with vacant
possession. Also, apart from this, there was in law an implication that the
property was to be sold with vacant possession; that, from the moment the
requisition notice was served on the vendor, he was not in a position to give vacant
possession; and he was not entitled to specific performance of the contract.
Hughes v Jones (1861) 3 De GF & J 307 at 314
An estate was put up for sale. One of the conditions provided that on completion the
purchaser should be ‘let into the receipt of the rents/profits.’ Some parts of the
property were subject to leases for lives at a low rent.

Held: a purchaser, who entered into the contract without knowing of the existence of
such leases, could not be compelled to take the title without compensation; ‘the rents
and profits’, unexplained, meant ordinary rents and profits, and not the merely
nominal rents and profits reserved upon leases for lives.
James Macara v Barclay (1945) KB 148
Pursuant to an agreement for the sale of a house and lands with vacant possession, the
purchasers paid a deposit of ten per cent. of the purchase price. Before the date fixed
for completion the competent authority, acting under powers conferred by reg. 51 of
the Defence (General) Regulations, 1939(1), gave notice to the vendor, who was in
occupation, that the lands and premises were required for national purposes, but the
authority never actually entered on the land. The vendor informed the purchasers of
the notice, but proceeded to negotiate, without the knowledge of the purchasers, with
the requisitioning authority with a view to inducing the authority not to proceed with
the requisition, pleading personal hardship and stating that he required the property
for his personal occupation. On the date fixed for completion of the sale, the
purchasers informed the vendor that, as the vendor was unable to give vacant
possession, they required the return of the deposit paid.
The vendor refused to comply with that demand, and the purchasers sued for the
amount of the deposit:
Held, that service of the notice of requisition on the vendor without actual possession
being taken by the requisitioning authority created an immediate interest in
possession in that authority and was an effective exercise of the power conferred on
the authority by reg. 51 of the Defence (General) Regulations, 1939, and, with the
consequence, that the vendor was not, at the date fixed for completion of the contract,
able to give vacant possession to the purchasers who were, therefore, entitled to be
repaid the amount of the deposit.
Held, further, that, in the circumstances, the jurisdiction of the court under s. 49, sub-
s. 2, of the Law of Property Act, 1925, could not be invoked to negative the legal
right of the purchasers.

Norwich Union Life Insurance v Preston (1957) 1 WLR 813 - Execution –

Possession – Writ of possession – Furniture left on premises – Order for removal of
furniture – Whether order for possession was for vacant possession – RSC,
Appendix H, Form No 8.

On 10 July 1956, a mortgagor was ordered within twenty-eight days after service on
him of the order to deliver to the mortgagees possession of the mortgaged premises.
On 14 September 1956, the order was served on the mortgagor, and on 19 December
1956, possession not having been given, a writ of possession was issued. On 9
January 1957, the sheriff's officer evicted the mortgagor. The mortgagor left his
furniture in the mortgaged premises and refused to remove it, contending that the
order for possession was spent. The mortgagees applied for an order that the
mortgagor should within four days remove his furniture.

Held – The mortgagees were entitled to the order which they claimed because
the mortgagor had not given possession in compliance with the order since, by
leaving his furniture on the premises, he was claiming a right to use them for his
own purposes.

Faria v Osborne (1968) 13 WIR 306

On 15 May 1964, the appellant conveyed to the respondent freehold premises for a
purchase price of $14,500. The respondent paid $10,500 and it was agreed that the
balance of $4,000 would be paid when vacant possession was delivered of a room
then occupied by a tenant. This was to be done within two months of 24 April 1964.
The appellant did not recover possession from the tenant up to 17 September 1964,
when the action was filed to recover the sum of $4,000. 

Held: (i) the transaction was a single indivisible contract for the sale of land for the
price of $14,500 subject to a term whereby the purchaser became entitled to retain a
portion of the purchase price pending the vendor's obligation to give vacant
possession for which she was allowed a period of two months; (ii) the vendor's breach
of the obligation conferred on the purchaser the right either (a) to rescind the contract
and sue for damages; or (b) to affirm the contract and sue for damages;(iii) having
affirmed the contract the purchaser had no right to retain the balance of the purchase
price. Judgment for the appellant for the sum of $4,000 with interest at the rate of 5
per cent per annum from the date of the writ.

DELAY - TIME OF THE ESSENCE:

Phillips v Lamdin 1949 2 KB 33 at 412
It was indicated that if time is not of the essence of the contract, you might make time
of the essence by giving an appropriate notice during the progress of the negotiations
towards completion, and that when time had been made of the essence it would then
be possible for the plaintiff to rescind the contract. Of course, that is one thing that
the purchaser can do if the purchaser is so minded, but this purchaser does not want
to rescind. No doubt in an ordinary contract for the sale of goods, if there is no time
limit fixed or no time limit which is of the essence of the contract, it is possible to
give express notice to the other party, saying: "Unless you complete within a certain
time I shall rescind the contract, have my money back, and claim damages"; but that
is not the end of the matter. I have never heard it suggested that in an ordinary
contract for the sale of goods, when a reasonable time has elapsed and the goods have
not been delivered, the only thing that can be done is to give notice and then seek to
rescind and recover damages. Damages for breach of contract for delay, even after the
purchase and the sale of goods has been completed, are always recoverable in a
proper case, provided that the plaintiff can prove them. There is no distinction in
general between contracts for sale of land and any other contracts except in this
respect, that where the contract is not completed owing to some conveyancing
difficulty, or some difficulty with regard to title and the matter goes off, courts of
equity will not give damages for loss of the bargain, the reason being that the
uncertainty of title is thought to make an exception to that general rule. The rule is the
rule in Bain v. Fothergill:
Raineri v Miles 1979 3 ALL ER 763 at 789
By a contract the third parties agreed to sell a house to the defendants with vacant
possession on or before 12 July 1977. At the same time the defendants agreed to sell
the house in which they were then living to the plaintiff, that contract also providing
for completion with vacant possession on 12 July. In neither case was the time for
completion expressed to be of the essence of the contract. The third parties could not
complete their contract with the defendants on 12 July. The defendants immediately
informed the plaintiff's solicitors, but the plaintiff had already vacated his previous
house and was intending to take possession of his new house. In consequence of the
third parties' failure to complete their contract with the defendants on 12 July, the
defendants were prevented from giving the plaintiff vacant possession on that day.
On 13 July the defendants gave the third parties notice to complete the contract by 11
August. The contract between the defendants and the third parties was duly
completed on that day. The defendants' contract with the plaintiff was also completed
on that day. Between 12 July and 11 August the plaintiff incurred expense in
providing himself with living accommodation for which he recovered damages from
the defendants. The defendants served the third parties with a notice claiming
indemnity on the ground of the third parties' failure to give vacant possession on or
before 12 July. The third parties contended that, where time was not of the essence,
the contract only required completion of the date fixed for completion or within a
reasonable time thereafter and that, since they had completed in a reasonable time,
they had not committed a breach of the contract and so were not liable in damages for
the delay. They further contended that the effect of the notice to complete was to
substitute for 12 July a new date for completion and that they had fulfilled the
contract as so varied.

Held: (i) A term in a contract providing that it was to be completed on a named day
could not, in the absence of a clear context, be construed as meaning that it was to be
completed on some later date; although the effect of the term might be modified by
equitable rules, the meaning of its language could not. The effect of s 41of the Law of
Property Act 1925 (equivalent to s 48 BPA) was not to negative the existence of a
breach of contract where one had occurred but merely in certain circumstances to bar
any assertion that the breach amounted to a repudiation of the contract. It followed
that, by failing to complete with vacant possession on 12 July, the third parties
committed, both at law and in equity, a breach of their contract with the defendants;
but, although that breach could not have been relied on by the defendants as a ground
for avoiding an action for specific performance, it afforded no ground for construing
the contract otherwise than in accordance with its clear terms. (ii) The service of a
notice to complete, which presupposed that the contract had not been completed on
the contractual date, made new rights and remedies available to the party serving the
notice in the event of the party served failing to comply with it. However, the
defendants had not been deprived of any cause of action in damages against the third
parties which had accrued to them before they served the notice to complete. The
appeal would accordingly be allowed.
Lock v Bell 1931 1 Ch. 45
On 19 Oct 1928, the plaintiff agreed to sell to the defendant all her interest in a public
house, called The Thorns, for 1,200 pounds. The defendant was then licensee of
another house called The Crown. The purchase was to be completed “on or about 10
Nov 1928”, and on default by the defendant a deposit paid by him of 120 pounds was
to be forfeited and he became liable to pay “the sum of 200 pounds hereby mutually
agreed upon to be the damages ascertained and fixed on breach” of the agreement.
The defendant having failed to complete on Nov 10, the parties agreed to delay
completion until Dec 8, but the defendant again failed to complete. On a claim by the
plaintiff for a declaration that the agreement had been rescinded and for the payment
to her of the deposit of 120 pounds and 200 pounds damages,

Held: (i) on the true construction of the contract completion must take place by the
date mentioned or within a very short time thereafter, and in such a contract as the
present it would be wrong for a court of equity to restrain the legal consequences of
the contract according to that construction, and, therefore, time must be regarded as
essential and the plaintiff was entitled to the declaration sought and the payment to
her of the deposit; but (ii) as, under the contract, the 200 pounds damages would
become payable on a trivial breach or breaches, the payment of that sum must be
regarded as a penalty with the result that the plaintiff could not recover it.

Per Curiam: Any doubts arising as to the true interpretation of “on or about Nov 10”
were entirely removed when Dec 8 was definitely fixed for completion.

Haroldwood Brick Co. Ltd v Ferris (1935) 2 KB 198

The defendant contracted to purchase a brickfield. A brickfield was a piece of land
which had upon it the tools of a brickmaker's trade. Clause 15 provided for
completion on August 31, 1933, and "if the completion of the purchase is delayed
beyond August 31, 1933 the purchase shall be completed not later than September 15,
1933." Clause 16 provided: "Should the purchaser fail to complete the purchase in
accordance with this agreement any deposit paid by the purchaser shall be forfeited to
the vendors who may rescind the contract." The defendant failed to complete the
purchase in accordance with the agreement:-

Held, (i) the date, September 15, 1933, fixed for completion was of the essence of the
contract, and (ii) the property sold included equipment/plant of a wasting kind to be
used for trading purposes, and, therefore, time was of the essence of the contract and
the vendor was entitled to rescind the contract and to receive damages.
Slesser LJ: Lord Parker in Stickney v Keeble [1915] stated that the equitable maxim
that time was not of the essence of the contract: "never had any application to cases
in which the stipulation as to time could not be disregarded without injustice to the
parties, when, for example, the parties, for reasons best known to themselves, had
stipulated that the time fixed should be essential, or where there was something in the
nature of the property or the surrounding circumstances which would render it
inequitable to treat it as a nonessential term of the contract."

In my opinion, both conditions which make the term as of the essence of the contract
mentioned by Lord Parker are here fulfilled. To begin with, I think that the stipulation
as to time could not be disregarded without injustice to the parties. The purchaser in
this case is given very considerable latitude. In cl 15 of the agreement he has
primarily contracted to complete on 15 August 1933.The concession which is given
to the purchaser to delay beyond August 31 seems to me to make it clear that the
intention of the parties was that, in return for that concession given to him, he should
in any event finally complete by 15 Sept 1933; and I think the vendor having
accepted that delay under the terms of the contract, it would work an injustice to him
if Sept 15 were not to be regarded as the final day for the completion of the contract.

That is enough, in my opinion, to decide this point as regards time in favour of the
plaintiffs, but I think also that there is sufficient evidence in the agreement itself and
the schedule annexed to it, and in the original offer of 23 May 1833, when the
property was described, to show that this property is a property of manifold qualities;
it is not merely freehold land, but it includes a kiln, one artificial dryer, modern
machinery of up-to-date construction and arrangements for making wire. Taking it,
therefore, as a whole, it is clear to me that it is property of a wasting kind, to be used
for trading purposes, where surrounding circumstances would make it inequitable to
treat time otherwise than as an essential term of the contract. Therefore, it follows
that for these reasons time must be taken to be of the essence of the contract. 

Re Barr's Contract 1956 Ch. 551

By condition 23 (1) of the National Conditions of Sale (16th ed.) it is provided as
follows: "At any time on or after the completion date, the vendor, being himself able,
ready and willing to complete, may (without prejudice to any other right or remedy of
the vendor against the purchaser) give to the purchaser or his solicitor notice in
writing requiring the purchaser to complete within such period (not being less than 28
days) as the notice shall prescribe. And if the purchaser shall not complete
accordingly, the vendor may at any time after the expiration of the notice, without
previously tendering a conveyance, forfeit the deposit and resell the property by
public auction subject to such conditions as he shall think fit."

By a contract dated January 19, 1956, which incorporated the above condition,
vendors agreed to sell to purchasers certain property for £50,000, receiving a deposit,
completion being fixed for January 31. At the time, as the vendors well knew, the
purchasers were relying on carrying out a sub-sale to provide the money necessary to
complete, in the negotiations for which the vendors were acting as the purchasers'
agents. On February 1, completion not having been effected, the vendors served on
the purchasers a notice under condition 23 (1) requiring the purchasers to complete
within 28 days. On the purchasers failing to comply with the notice, but later seeking
to complete:-

Held, that on its true construction the condition required the notice to allow such a
time as in all the circumstances was reasonable, which might not be less than 28 days
but might well be more; and that, in the circumstances, 28 days was not reasonable,
so that the notice was of no effect and the vendors had not effectively rescinded the
contract.

Ajit v Sammy (1967)1 AC 255

Where the time fixed for completion was not made the essence of the contract, the
vendor might serve on a purchaser who had been guilty of unnecessary delay a notice
limiting a time at the expiration of which he would treat the contract as at an end, and
in determining the reasonableness of the time so limited the court would consider not
merely what remained to be done at the date of the notice, but all the circumstances of
the case, including the previous delay of the purchaser and the attitude of the vendor
in relation thereto; that the question whether the notice was sufficient was a question
of fact; and that, in all the circumstances of the case, the six days' notice to complete
was reasonable
Re Stone's and Saville Contract [1963] 1 ALL ER 353
The title to the property was registered under the Land Registration Act and the
charges register contained an entry relating to a covenant in a conveyance of 1945,
whereby the then purchaser of the property covenanted not to use it otherwise than as
a private dwelling-house and garden. The existence of this covenant did not come to
the present purchaser's notice until after the contract was made. On 5 July 1961, the
purchaser delivered requisitions on title, including one asking the position regarding
the restrictive covenant. The vendor's solicitors replied that they were inquiring, but,
despite several reminders, they made no further reply to this requisition. On 11
August 1961, the vendor gave notice to complete, saying that on failure to complete
within the specified time the vendor would forfeit the deposit. On 4 September 1961,
the purchaser's solicitors wrote saying that the vendor was unable to make title in
accordance with the agreement having regard to the restrictive covenant in the
charges register, that they were instructed to rescind the contract and that, unless
arrangements were made for the return of the £3,000, proceedings would be taken for
its recovery. By a letter of 12 September 1961, the vendor's solicitors stated that the
deposit was forfeited, that the vendor was free to dispose of the property as he
thought fit, and recognised that the purchaser had rescinded the contract. 

Held: (i) by giving notice to the purchaser to complete the vendor had shown that, at
a time when on the face of his documents he was unable to make a good title, he did
not intend to answer a requisition which went to the root of the contract
and accordingly the purchaser had been entitled to treat the contract as repudiated, as
she had done by the letter of 4 September 1961; moreover, the vendor having, by
letter of 12 September 1961, also treated the contract as at an end, though on the basis
of default on the part of the purchaser, the contract had been terminated; and, as the
fault in fact was the vendor's, the purchaser was entitled to recover the £3,000.

Per Upjohn LJ: the vendor's notice to complete, given on 11 August 1961, was
consistent only with the view that he considered that he had completely fulfilled his
part of the bargain and that the purchaser was failing to perform hers, and the only
reasonable inference, accordingly, that could be drawn was that the vendor was not
going to answer the requisition concerning the restrictive covenant; therefore, it was
unnecessary for the purchaser to give any notice making time the essence and fixing a
period within which the vendor must answer the requisition, before she, the
purchaser, rescinded the contract.
Baldeosingh v Maharaj (1960) 17 WIR 41
Ordinarily the measure of damages for breach of contract for the sale of land would
be the difference between the contract price and the market value of the land at the
time of the breach. Where the vendor commits a breach of contract and without any
reasonable excuse conveys or assigns the property to a third party in order to obtain a
higher price the purchaser is entitled to damages assessed on the basis of the
difference between the contract price and the actual resale price obtained by the
vendor
Graham v Pitkin (1992) 2 ALL ER 235
Unreasonable delay by a purchaser in completing a contract for the sale of land does
not entitle the vendor to rescind the contract without first serving a notice to
complete, although delay may be an ingredient in deciding whether a party in default
does not intend to proceed and has repudiated the contract. Time is not of the essence
of a contract for the sale of land in the absence of an express term to that effect or in
circumstances which imply that time is of the essence (Harold Wood case). If a
vendor serves a valid notice requiring completion within a reasonable time and the
purchaser fails to complete in accordance with the notice, the failure can be treated by
the vendor as a repudiatory breach which the vendor is entitled to accept by
rescission. In the absence of a valid notice to complete a purchaser is entitled to
specific performance unless his conduct has rendered it inequitable for specific
performance to be granted
Behzadi v Shaftesbury Hotels Ltd. (1991) 2 ALL ER
If a contract for the sale of property fixed the date for completion or performance of
some intermediate obligation, such as delivery of an abstract of title, the failure of
one party to the contract either to complete or to perform the intermediate obligation
by the stipulated date entitled the other party to serve a notice making time of the
essence, even though the time fixed by the contract was not of the essence of the
contract, and he did not have to wait until there had been unreasonable delay by the
party in breach before serving such a notice. However, the notice had to give a
reasonable period of time in which to complete or perform the obligation. Whether
the time specified in a notice making time of the essence was reasonable depended on
the date when the notice was given and whether in all the circumstances the time
specified was long enough to enable performance of the obligation. In the case of a
requirement to deliver an abstract of title the relevant circumstances included
unforeseen difficulties in performing the obligation. Furthermore, where there was a
comparatively lengthy period for completion a short period to deduce title would
rarely be justified. Since the delay in performing of the vendor's obligation to deduce
title had been essentially due to the Land Registry and it had been reasonable for the
vendor's solicitors to believe that registration of the title would be perfected in time to
comply with the contractual obligation to deduce title and since the purchaser's
solicitors had already been made aware of the difficulties with the Land Registry
when the notice was served on 30 August and the purchaser had not been prejudiced
by the failure to deduce title by 6 September, it followed that the period of seven days
given in the notice of 30 August for compliance with the obligation to deduce title
had been unreasonably short to enable the vendor to resolve the difficulties with the
Land Registry. The purchaser had accordingly not been entitled to rescind the
contract on 7 September and the appeal would therefore be dismissed
Bacchus v Booklall GY 1972 CA 1
Sale v Allen (1987) 36 WIR 294
The appellant entered into an agreement to sell property to the respondent in April
1976. Although the agreement specified the date of completion (31 May 1976) and
made time of the essence, this stipulation was waived and time was not again made of
the essence. Completion was delayed and the respondent was allowed to enter into
possession. She paid a rent of $10 per month from March 1979. The delay in
completion was entirely the fault of the appellant. In May 1981, the appellant served
notice on the respondent purporting to rescind the sale agreement. The appellant also
sought (inter alia) a declaration that the agreement had been rescinded and an order
for possession. The trial judge dismissed the appellant's claim, but on the respondent's
counter-claim (inter alia) made an order for specific performance of the agreement.
The Court of Appeal upheld the order for specific performance, but refused the
appellant's claim for interest on the balance of the purchase money. The appellant
appealed to the Judicial Committee.

Held, allowing the appeal so far as it related to the claim for interest, that the
agreement by the respondent to pay nominal rent did not displace the ordinary rule
that (even where delay was the fault of the vendor) a purchaser in possession and in
receipt of the rents and profits of the property sold was liable, on completion, to pay
interest on the unpaid balance of the purchase money calculated from the date of
entry into possession.

Chaitlal v Ramlal 2003 UKPC 12

In a contract for the sale of land where time is not made of the essence ab initio,
one of the parties is not entitled by notice to make it so unless the other party is
in default. In the case of an open contract (that is, where it is implied that
completion or the performance of any intermediate obligation will take place
within a reasonable time) it is only after the passage of such a time that a notice
can be given because, until then, there has been no default in the performance of
the contract. Further, by implication (even when there is no express provision to
such effect) a party serving a notice purporting to make time of the essence must
himself be ready, able and willing to complete at the date when the notice is
served
Mungalsingh v Juman 2015 UKPC 38(supra)
TIME OF THE ESSENCE
Common Law - Date fixed for completion was regarded as of the essence of the
contract.
Equity - Time was not of the essence so the party guilty of delay could still obtain
specific performance of the contract.
TIME IS OF THE ESSENCE
1. Where the contract expressly states so. i.e. "Time shall be of the essence."
2. When property being sold is of such a nature, an intention that time should be of
the essence can be implied.

NOTICE TO COMPLETE
1. When time was not originally of the essence, the injured party can serve a notice
specifying a reasonable time within which to complete.
2. 'Reasonable' depends on the circumstances of each case.
3. The party serving the notice must be ready willing and able to complete.
4. Whether or not time is of the essence, failure to complete on an agreed date is a
breach of contract and the injured party is entitled to damages. Time will be waived
where the parties continue negotiating after the time for completion has passed

ACTIVITY 2 - (Role Play) Mr. and Mrs. Hari Puttar come into your office and
instruct you that they wish to purchase a dwelling house property on two lots of land
situate at Privet Lane at or for the price or sum of $2,500 000 free from
encumbrances from the owner Mr. Ron Howard. Mr. Howard informed them that
there is presently a mortgage on the said property. Mr. and Mrs. Puttar have the
deposit but will need to borrow the balance of the purchase price from a lending
institution.
Advise Mr. and Mrs. Hari Puttar on the contents of the contract for sale, the steps in
the transactions and the documents necessary for the completion of the transaction.

Contents of contract for sale

 The contents of the contract for sale must include (name and description of
the parties) the full names, occupation and addresses and additional descriptions of
both you and Mr. Ron Howard.
Additionally, the contract for sale must include the description of the
property. This is usually placed in the schedule of the contract for sale and will
include, in addition to a written description, a drawing of the property delineating the
borders amongst other things.
The contract will also include what is legally known as consideration i.e., a
clause stipulating that in exchange for $2.5 million dollars from you, Mr. Ron
Howard will deliver up the property situate at Privat Lane free from encumbrances.
Further, precise terms of the contract must also be included regarding your
payment of the deposit but your need to borrow the purchase price from a lending
institution; the time within which the contract for sale/conveyance is to be completed.
One consideration we must make is that there is presently a mortgage on the said
property. With this in mind you must determine whether you wish to take over the
loan, bearing in mind that you have already stated that you would need to borrow
money from a lending institution to cover the balance of the property purchase. If Mr.
Ron Howard’s bank need not join in the conveyance of the property which will be
subsequently conveyed subject to the mortgage.
However, if you do not wish to take over the loan, the property must be conveyed and
released either in a conveyance by the mortgagee joining in or being made a party to
the conveyance to you all. In such a case we must determine whether the whole or
any of the purchase money will be paid to the mortgage, what is the exact amount
with interest etc.
Lastly, the signature of both of you, Mr. Ron Howard and one to two
witnesses to the contract is needed.

Steps in the transactions

The first step would be the pre-contract stages i.e., hiring a certified surveyor and
inspector to go to the property at Private Lane to survey the property and the
infrastructure and produce a report as to his findings. Additionally, as your attorney I
would go to the Registry to investigate Mr. Ron Howard’s title and do some enquiries
as to the land to ensure that Mr. Ron Howard is indeed the owner thereof and that the
land.
The second step would be your approval of the draft contract which I would produce.
Afterwhich the contract is to be executed by both you and Mr. Ron Howard.
The third step is the preparation of the conveyance. Fourth is approval of the
conveyance.

Documents necessary for completion

Documents necessary for completion are passport photos/valid forms of identification
of the parties, source of funds

QUESTION 1, PART A (a)

QUESTION 1, PART A (a)

ISSUE 1: Whether the note signed by Drake, Kardee & Taylor and the receipt
formed a valid and enforceable contract for sale.
LAW/APPLICATION
No action may be brought upon any contract for the sale of land unless the
agreement or some memorandum or note thereof, is in writing and signed by the
party to be charged: section 4(1) of the Conveyancing and Law of Property Act of
Dominica Chap 54:01.
Multiple documents signed by parties pursuant to a contract for the sale/transfer of
property would be sufficient to constitute a memorandum in writing of an agreement
are required by statute, if when the documents are read together they contain all the
terms of a concluded contract: Elias v. George Sahley
Names of parties + signatures
consider
The note signed by Drake, Kardee and Taylor sets out the terms of the
contract for sale of the land and the receipt buttresses the said note. Read together, the
note and the receipt squarely fall within the category of “some memorandum or note
thereof” under statute, thus constituting a valid contract for the sale of land between
the Drake & Kardee and Taylor.
ISSUE 2: Whether Drake and Kardee can recover the $100,000 deposit.
THEY CAN, BASED ON “SUBJECT TO A PROPER CONTRACT” BASED
ON CHILLINGWORTH V. ESCH CASE

LAW/APPLICATION
Section 7 of the Conveyancing and Law of Property Act of Dominica
Chap 54:01 empowers a purchaser to apply to the court regarding a claim for
compensation connected with a contract with a vendor. Additionally, a deposit can be
validly forfeited even though the amount of the deposit bears no reference to the
anticipated loss to the vendor flowing from the breach of contract. However, the
amount of the deposit had to be reasonable. The customary deposit is 10% and a
vendor who seeks to obtain a larger amount than 10% by way of forfeitable deposit
had to show special circumstances justifying such a deposit otherwise the deposit
would be held to be a penalty: Workers Trust v. Dojab Ltd (1993) 2 All ER 370.
In our circumstances, the parties agreed for the sale of the property for the
sum of $2,000,000, 10 percent of which would be $200,000. As the deposit which
was forfeited is below the beforementioned amount and said forfeiture flowed from
the Drake and Kardee’s repudiation of the contract, Taylor was indeed entitled to
forfeit the deposit
The amount being 5% shows that they contracted for less than what would
usually be and the court would view this as favorable to Drake and Kardee
recovering the deposit

ADVICE:
Drake and Kardee are advised they indeed had a valid contract with Taylor and by
reneging on the contract, Taylor was entitled under law to forfeit the deposit.
Therefore, they would be unable to recover the deposit.

In dca deposit paid straight to vendor

Check twen for clauses on stakeholders
Include insurance clause
Include provisions for both PURCHASER AND VENDOR’S DEFAULT

QUESTION 1, PART A (c)

Waitukubuli Law Group, #1
Independence St, Roseau,
Commonwealth of Dominica
Telephone Number 449-0001
Agreement prepared on
behalf Drake Redman &
Kardee Beem:

Jason
Lawrence
JASON LAWRENCE
ATTORNEY-AT-LAW
AN AGREEMENT made the 24th day of October 2021 between DRAKE REDMAN,
engineer AND KARDEE BEEM, manager of DOMLEC, both of #80 Rose Drive,
Wanstead, Dominica (hereinafter both called the PURCHASERS) of the ONE part and
Celina Romez of #420 Lane, Richmond, Dominica, director of CDMB (hereinafter called
the VENDOR) of the other part.
WHEREBY IT IS AGREED as follows:

Cater for if the title is good or not good; good and marketable title is the best
title that you could possibly have (common law system)
In registration of title system simply check register to see if it matches what is on
the certificate of title. What is usually agreed to be sold is indefeasible/ absolute
title free from encumbrances
Usually possession is given on completion of the contract, if payment is by
instalment the parties may give possession before completion
Proper town and country planning approvals also a condition of sale
Termination clauses: cater for foreseeable risk, mediation clauses
Good and marketable title/ registration of title system – indefeasible title
Vacant possession
Registration of title system: deed of sale on completion vendor must provide
- Description of property from certificate of title : volume and folio
reference

1. The Vendor will sell and the Purchaser will buy the unencumbered fee simple
in possession of ALL THAT piece or parcel of land (hereinafter referred to as
the property) situate #560 Lane, Wapp-de-Ville, in the parish of St. George in
Dominica known as “Ohkur Manor” which is situated on the last acre of a
three-acre parcel of land owned by the Vendor.

2. The price shall be THREE MILLION EASTERN CARIBBEAN

DOLLARS ($3,000,000) of which the sum of ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) by way of deposit is now paid (the
receipt whereof the Vendor hereby acknowledges) and the balance shall be
paid on the date fixed for completion.

3. The Vendor agrees to grant the Purchasers a 24 ft wide easement of access

extending through the two acres preceding the said “Ohkur Manor” which
 will connect the main road to the said Ohkur Manor, the particulars whereof
are comprised in the Schedule hereto.

4. The Vendor agrees to implementing restrictive covenants on the two acres

preceding the said “Ohkur Manor” preserving the beforementioned easement
of access in clause 3 for the benefit of the Vendors or any future owners of
“Ohkur Manor” in the instance of conveyance.

5. The title an abstract whereof shall within seven days from the date hereof be
delivered to the Purchasers shall commence with a deed/indenture, dated 9 th
day of January, 1912 being a conveyance on sale of the property made
between Drake Redman and Kardee Beem of the One Part and Celina Romez
of the Other Part and registered/recorded in the Deeds and Land
Registry/Registrar General’s Office in Roseau.

6. The completion of the purchase and payment of the balance of the

purchase money shall take place on the 24 th day of January 2021 at the office of
Waitukubuli Law Group at #1 Independence Street, Roseau, Dominica.

7. The Purchasers shall enter into possession anytime after the

completion of the purchase.

AS WITNESS OUR HANDS (OR, in WITNESS WHEREOF the

parties hereto have hereunto set their hands) the day and year first
hereinabove written.

THE SCHEDULE

(Describe property)
 SIGNED by the Vendors )
in the presence of: )

Jason Lawrence ) Celina Romez

Attorney-at-law ) Celina Romez
#1 Independence Street )
Dominica )

SIGNED by the Purchasers ) Drake Redman

in the presence of: ) Drake Redman
Jason Lawrence )

Attorney-at-law ) Kardee Beem

#1 Independence Street ) Kardee Beem
Dominica

QUESTION 1, PART A (d)

Section 20(1) of the Title by Registration Act Chap 56:50 of Dominica-
Memorandum of transfer Form 5 – “When land has been brought under this Act, the
registered proprietor thereof if he desires to transfer it on sale or otherwise, shall
execute a memorandum of transfer in Form 5, and the memorandum of transfer shall
be presented to the Registrar of Titles.”
 MEMORANDUM OF TRANSFER ON SALE
I, CELINA ROMEZ, of the Commonwealth of Dominica, registered proprietor of ALL
THAT piece or parcel of land (hereinafter referred to as the property) situate #560
Lane, Wapp-de-Ville, in the parish of St. George in Dominica known as “Ohkur
Manor” all as the same is set forth bounded and described in the certificate of title in
my favour, dated the 8th day of March 2007 and registered in the register of titles of
the Commonwealth of Dominica, Vol. 5, Fol. 10, in consideration of the sum of
$3,000,000 paid to be by Drake Redman and Kardee Beem, the receipt of which I
hereby acknowledge, do hereby transfer the said land to and in the favour of the said
Drake Redman and Kardee Been, and consent to the noting hereof by the Registrar of
Titles, and the cancellation of the certificate of title in my favour, and that a new
certificate of title of the said land shall be issued in favour of the said Drake Redman
and Kardee Beem.
For the doing of all which I hereby authorize and grant warrant to the Registrar of
Titles accordingly.
Given under my hand this 25th day of January, 2021.

Signed before and in the presence of:

MEMORANDUM OF TRANSFER OF PART OF LAND CONTAINEDI N A

CERTIFICATE OF TITLE
I, CELINA ROMEZ, being the registered proprietor a three-acre parcel of land situated
at 560 Lane, Wapp-de-Ville, in the parish of St. George in Dominica as the same is
bounded and described in the certificate of title in my favour registered in Vol. XI,
Fol. X, of the register of titles of the Commonwealth of Dominica, in consideration of
the sum of $3,000,000 paid to me by Drake Redman and Kardee Beem, the receipt of
which I hereby acknowledge, do hereby transfer to the said Drake Redman and
Kardee Beem one acre of the said land bounded as follows, that is to say all as the
same are delineated and set forth on the plan thereof by James Wakeman, licensed
surveyor, of #4 Lane Road, St. Joseph, Dominica, annexed hereto.
And I do by these presents consent to the cancellation by the Registrar of Titles of the
certificate of title in my favour and to a new certificate of title being issued to me for
the portion of the said land remaining after deduction of the five acres, which land
will then be bounded as follows all as the same is delineated and set forth on the plan
thereof by James Wakeman, licensed surveyor, of #4 Lane Road, St. Joseph,
Dominica, annexed hereto.
And for the doing, noting and registered all that is necessary in the premises, I hereby
authorized and grant warrant to the Registrar of Titles accordingly.
Given under my hand this 25th day of January, 2021.
Celina Romez
Signed before and in the presence of:

Jason Lawrence