-Buyers will inspect the property

• Not justified relying solely on that
• Means of better identifying via plans
• Buyers can't resist S/PERF by arguing they were mistaken as to the extent of their purchase by lack of care in checking plans
• The PLAN forms part of the DESCRIPTION of land sold, has contractual force: Tefbao P/L v Stannic Securities P/L
• To operate as a WARRANTY, will need a reference in the contract to the plan as forming a part of the description: Harris v Smith

• Cl 7.5(1) REIQ
• Buyer can survey the land
• Material error?
• Terminate - 7.5(4); or
• Compensation - 7.5(2)
• Otherwise if immaterial the only remedy is compensation

Important: where

• buying PART of the land
• buying commercial property : "ORDINARY PRECAUTION"
• Svanosio v McNamara

If description "lot 6" does NOT correspond with lot as pegged, the subject matter is the LOT AS PEGGED
Donaldson v Hemmant

• Mistake in description
• WANT of title, not defect in title
• MUST appear on the FACE of the contract (can't be implied): Jarema P/L v Kato

Cl 21.1(b) gave the plaintiff the right to terminate the contract if access was other than by way of an adjoining road dedicated for public use or by way of a registered easement to a road dedicated for public use. As counsel for the defendant submitted, it does not follow that if access to the land was other than by such a road or easement, there was an error or misdirection within clause 8.2

• Overcomes the decision in Travinto Nominees P/L v Vlattas
• Misdescriptions in property did not take account of errors in describing title
• Contract sufficiently disclosed of a lease, but didn't disclose the option for renewal
• NOW see 7.5

Material misdescription/defect
TEST

• The Rule in Flight v Booth
• Buyer is not getting substantially what was bargained for; or
• Buyer would not have contracted if they knew the true position
• If so, a court of equity would not compel by S/PERF
• s 69 PLA supports this: allows termination 'where specific performance would not be enforced' due to defect in title

Acceptance of Title
REIQ 7.3 - The buyer may not deliver any requisition or enquiries on title

• Requisitions were questions about the property (drawn up by lawyers)
• Tender of Deed of Conveyance delivered only after satisfactory answers to requisitions

NOW not permitted under REIQ

• Objections to title can now be maintained up to acceptance of title: settlement, possession or other indication of acceptance - 8.5(2)(b)

Freehold land register

• s184 LTA: Registered proprietor of fess simple holds free from all other interests

s 185 LTA: Exceptions

• Equity arising from the act of the proprietor
• Interest of a lessee under short lease
• Beneficiary of an easement if omitted/misdescribed
• Adverse possessors
• Proprietor with earlier indefeasible title

Unregistered and statutory encumbrances (eg local council: drainage pipes)

Need to search outside the register to determine interests over the title

Last minute check search is crucial (s 70 PLA - if Title Office computers are down, seller not breach, time not of essence)

If not, although difficult, court will assess:

• if price calculated by area, $ payable for deficiency
• If misdescription = lack of physical characteristic. $ payable for diminuition of value without characteristic
• if Q is between cost of rectification, and diminuition in value without rectification, under Edson v Sun Kuong Properties if property can be rectified, the difference between the property as it should be and the defective property cannot be more than the total cost of rectification

Defects affecting title

• Underground drains - statutory encumbrance
• Services unlawfully passing though other land - REIQ 7.7(1)(c)
• Notices by competent authority or court
• Errors in description - REIQ 7.5
• Notices under the Building Act 1975 for defective improvement do not affect title - REIQ 7.6(4)
• Planning Act 2016

On execution of the contract, where it is valid and legally binding:

• Seller: retains legal interest until purchase money is paid and has a trustee like role
• Buyer: has a beneficial interest in the land commensurate with relief that equity would give by S/PERF or injunction
• RISK: general law - passes on execution
  REIQ 8.1

Seller has duty to take reasonable care and is liable for damage via neglect, wilful acts