Head 7 - warrandice Flashcards
What is Warrandice?
A guarantee of a certain state of affairs at a certain point of time.
What are the four warranties for the sale of land?
- The seller’s warranty in missives
- The seller’s warranty in the disposition
- The Keeper’s warranty as at the time of registration
- Warranties previously given to the seller or the seller’s predecessors
What are the two implied warranties in the seller’s warranty in missives?
-This first warranty is important mainly for defects in the sellers title uncovered during the course of the transaction and before settlement
- This warranty is subject to a two year supersession clause after which the buyer must rely on other warranties
The two implied warranties are:
- That an absolutely valid title will be given to the buyer
- That the title will be free from encumbrances except those which are either immaterial or known to the buyer as at the date of conclusion of missives
What is the standard for materiality in the warranty in missives?
The triviality standard has to be very high - must be very trivial to be allowable
What is the rule established in Whyte v Lee?
The seller guarantees a good title and guarantees that there are no encumbrances, other than those which are very trivial
What is the difference between actual knowledge and constructive knowledge in the warranty in missives?
- Actual knowledge is knowledge that the buyer actually has.
- Constructive knowledge is knowledge that the buyer could have obtained by reasonable investigation.
What is the difference between simple warrandice and absolute warrandice?
- Simple warrandice is limited to defects caused by the future voluntary acts of the granter.
- Simple warrandice is granted where land is gifted rather than sold
- Absolute warrandice comprises the same two guarantees as for missives, which are:
- The title is warranted as at the date when it becomes operational (only), ie the date of which the disposition is delivered, except in relation to (future) acts by the seller.
- Absolute warrandice is implied in dispositions granted on sale
What is the Keeper’s warranty?
The Keeper’s warranty guarantees that, as at the time of registration, the Register is accurate in showing the transferee as owner and in not omitting any encumbrances (other than encumbrances which cannot be shown on the Register).
What is the difference between the Keeper’s warranty and the other warranties?
Whereas the first two warranties relate to the state of the transferor’s title, the Keeper’s warranty goes further and guarantees the transferee’s title.
What are the exclusions from the Keeper’s warranty?
- Actual or constructive knowledge of the inaccuracy at the time of registration prevents a claim.
- The Keeper is allowed to vary the warranty, either at the time of registration or later, and may even exclude it altogether.
What is the warranty given to the seller or seller’s predecessors?
Personal rights, the various warranties may be assigned, and indeed are assigned by the (implied) assignation of writs clause in dispositions.
What is the rule established in Cobham v Minter?
If C wants to sue B, they must get the right re-assigned by D. This situation arose in Cobham v Minter.
What provisions in the LRA 2012 provide for realignment?
LRA 2012 ss 86 and 91 has the effect of eliminating many potential defects of title
But the conditions for their applicant are not always met, and in any even section 86 does not cover first registrations, or transactional errors.
What is the case that gives the authority for materiality and the only remedy being damages?
Welsh v Russell 1894
What is the authority that leases are not covered by warrandice
Lothian & Border Fatmers Ltd v McCutcheon 1952
