Cases - South Western General Property Co Ltd v Marton

Record details

Name

South Western General Property Co Ltd v Marton

Date

[1982]

Citation

2 EGLR 19

Legislation

• Misrepresentation Act 1967
• Unfair Contract Terms Act 1977

Keywords

Estate agency - Misrepresentation Act 1967 - Unfair Contract Terms Act 1977

Summary

Land owned by the plaintiff was sold by auction to the defendant. The land was described in the auction catalogue as 'long leasehold building land'. The catalogue also stated that planning consent had been refused in 1972 because the proposed house was out of character with the existing development. What the catalogue did not say was that the refusal of consent was upheld on appeal and that the inspector had based his decision on an additional ground - that the house would be infill development detrimental to the visual amenities of the occupiers of nearby residential properties. This reason had been taken up by the planning authority as justification for refusal of planning permission for a subsequent application in 1981 and again in 1982. After the defendant purchased the property he sought to rescind the contract on the ground of innocent misrepresentation. The plaintiff brought an action for damages on the resale of the land at £4,400 less than the defendant had bid. The principal question for the judge was whether the conditions of sale were fair and reasonable under section 3 of the Misrepresentation Act 1967 and section 11 of the Unfair Contract Terms Act 1977. The conditions were those commonly found in sale contracts and included:

'... any incorrect statement or error or omission ... shall not annul the sale ...'

'... the purchaser shall take the properties as they are under the said [planning] Acts ...'

'... all statements are made without responsibility on the part of the auctioneers or the vendor ... and any intending purchaser must satisfy himself by inspection or otherwise as to the correctness of each statement contained in the particulars ...'

'... the vendor does not make or give any representation or warranty in relation to the property nor has the auctioneer or any person in the employment of the auctioneers any authority to do so on his behalf.'

In the circumstances, the judge held that it was not fair and reasonable to include these conditions of sale. He noted that the planning history of the land was something peculiarly within the knowledge of the plaintiffs, as they had owned the land since 1977 and had lost the planning appeal. He also observed that the very nature of the sale was to sell the land as building land and the attitude of the local planning authority was some indication that the land was not likely to be building land at all.