The Effect of Statutory Notice of Incumbrances

• Published in: Cambridge law journal 1954-04, Vol.12 (1), p.89-104
• Main Author: Wade, H. W. R.
• Format: Article
• Language: English
• Subjects: Contract law; Contracts; Encumbrance; Good titles; Judges; Property law; Property titles; Statutory law; Vendors; Waivers
• ISSN: 0008-1973; 1469-2139
• DOI: 10.1017/S0008197300002889

In the second part of his decision in Re Forsey and Hollebone's Contract Eve J. held that, as a consequence of the statutory notice effected by section 198 of the Law of Property Act, 1925, (i) a purchaser of land was not entitled to object to incumbrances registered at the date of the contract; and (ii) that this was true even where the contract expressly provided that the sale should be free from incumbrances. It is submitted that both conclusions are erroneous as well as inconvenient. The objection to conclusion (i) is that a purchaser is bound to accept incumbrances only if he has waived objection to them, and he cannot be said to show an intention to waive by acts done when the necessary knowledge was not actually in his mind; and, furthermore, section 198 is a provision about the doctrine of notice and should be confined to that subject—it has nothing to do with the construction of a contract or of acts of the parties. The objection to conclusion (ii) is a fortiori, since the purchaser has expressly protected himself against incumbrances. To say that this right depends on the vendor's inability to give oral evidence of a waiver is incorrect: the right arises ex vi contractus, and the effect of the special stipulation about incumbrances is to rebut any allegation that the purchaser waived his right by entering into the contract with knowledge of an incumbrance. An act of waiver can always be proved by oral evidence, and its effect is a question of intention. If there is no question of waiver, there is nothing relevant which the vendor can prove by any evidence of any kind, either written or oral.