Elias v George Sahely & Company Barbados Ltd
| Jurisdiction | Barbados |
| Judge | Williams, D.A. |
| Judgment Date | 15 February 1983 |
| Neutral Citation | BB 1983 HC 15 |
| Docket Number | No. 879 of 1975 |
| Court | High Court (Barbados) |
| Date | 15 February 1983 |
High Court.
Williams, J.
No. 879 of 1975
Mr. V.O. Smith of Messrs. Smith & Smith for the plaintiff.
Miss E. Kentish for the defendant.
Real property - Vendor and Purchaser — Certified surveyor's plan
This is a vendor and purchaser summons under section 54 of the Property Act 1979–11 in which the purchaser Elias seeks a declaration that he is entitled to have a new certified surveyor's plan of the property No. 19 Swan Street which he agreed to buy from the vendor Sahely. He seeks a further declaration that should the vendor default in providing the plan, he is entitled to recover from the vendor the cost of having one prepared.
The Privy Council ordered the agreement for the sale of the property to be specifically performed and the case was remitted to the Court of Appeal for appropriate directions to be given to the High Court so that the High Court may make such orders or give such directions as may be necessary, in the absence of agreement between the parties, to provide inter alia, for an inquiry whether a good title could be made to the property. When the case came on before the Court of Appeal the parties agreed that a good title could be made. The matter of the provision of a new surveyor's p1an was raised and the Court of Appeal directed that it be settled in accordance with the usual practice in conveyancing matters. The attorneys-at-law representing the parties not having resolved the issue, the purchaser now seeks the ruling of the court. There is an old plan of 1902 among the title deeds relating to the property. The purchaser contends that it is obsolete. It should be noted that the agreement between the parties does not include any term with respect to a plan.
The purchaser and the vendor have each filed affidavits by attorneys-at-law experienced in conveyancing matters as to the normal practice. I think it useful to record in full the evidence of these two gentlemen.
The purchaser filed the affidavit of Mr. C.A. Williams and the substance of his evidence is as follows: –
“1. I qualified as a solicitor in 1966. Since then, I have practised as a solicitor and, since the Legal Profession Act Cap. 370 A, as an attorney-at-law.
2. I have had extensive experience in the field of conveyancing in Barbados and I am entirely familiar with normal conveyancing practice in this Island.
3. I have been asked by Smith & Smith to state my opinion on the conveyancing practice in Barbados in relation to plans of real property which is being sold and purchased and the manner of establishing the identity of such real property. The facts stated and the opinions expressed in the following paragraphs of this affidavit are based on my said qualification and experience.
4. It is the almost invariable practice for the vendor to supply a land surveyor's plan of the land which he is selling and to identify and point out to the purchaser the surveyor's boundary marks shown on such plan and to replace any such marks which may be missing.
5. The vendor accepts the responsibility and obligation to satisfy the purchaser as to the identity of the property which he has agreed to sell with that which is described in the documents of title. This is achieved by pointing out to the purchaser the surveyor's boundary marks shown on any plan which is comprised in the documents of title (including any marks which the vendor has had to replace as aforesaid) and by reconciling the following “inter se”, viz., (a) the area and abuttals which are contained in the description of the property in the documents of title (b) the area and abuttals which are contained in the description of the property agreed to be sold and (c) the area and abuttals which appear on the existing surveyor's plan.
6. If the existing surveyor's plan cannot be reasonably reconciled with the said description, the vendor is obliged at his own expense either to have the existing plan checked and adequately annotated by a land surveyor or to have a new survey done and a new plan produced. If it becomes necessary for an existing plan to be checked and annotated or a new plan to be produced, the vendor's obligations set out in paragraph 5 hereof like wise apply to the existing plan as checked and annotated or to the new plan, as the case may be.”
The vendor filed the affidavit of Mr. J.C. Armstrong and its substance is –
“1. I qualified as a solicitor in 1943. Since then I have practised as such and since the Legal Profession Act Chapter 370 A as an attorney-at-law.
2. I have had considerable experience in the field of conveyancing in Barbados and am familiar with normal conveyancing practice in this Island.
3. I have read the affidavit of Colin Anthony Williams filed herein on the 24th day of January, 1983.
4. I have been asked by R.G. Mandeville & Co. to state my opinion on conveyancing practice in Barbados in relation to the supply of plans of land which is being sold. The facts stated and opinions expressed herein are based on my said qualification and experience.
5. It is usual for an agreement for the sale and purchase of land to contain a provision relating to the supply of a plan.
6. For many years and as far back as 1939 and as recently as 1980 conditions of sale of land by public auction including those prepared by Cottle, Catford & Co. contained clauses in the following terms: –
(a) “Any existing plot will be given the purchaser but no new plot will be furnished nor will the lines be checked” or
(b) “The existing plan certified the day of 19 by Land Surveyor will be handed to the purchaser. on completion: No new plan will be given nor will the line marks shown on the said existing plan be checked or replaced except, at the expense of the purchaser.
7. Agreements for the sale and purchase of land by private treaty usually contained clauses similar to that lettered (b) and set out in paragraph 6 hereof, save and except where the land forms part of a development or building scheme. In the latter case where the land is being sold by the developer (vendor) to an initial purchaser the agreement usually contains a provision that the vendor will supply a plan of the land being sold, the reason being that no plan would have been in existence for that particular land.
On a sale subsequent to the initial sale a written agreement usually provides that the existing plan will be given to the purchaser but no newer plan will be given nor will the said plan be checked but that the line marks shown on the plan will be pointed out to the purchaser and that any line marks which cannot be pointed out will be checked and if possible replaced at the expense of the vendor.
8. In current conveyancing practice a written agreement for the sale and purchase of land usually provides as follows: –
‘The existing plan of the property will be given to the purchaser. No newer plan will be given nor will the said plan be checked but the vendor will point out to the purchaser the line marks shown on the said plan and at the expense of the vendor replace any such marks as shall be missing.”
9. Since the introduction of the metric system it has become the practice to give the particulars of the plan which is to be provided.
10. It is my understanding that this affidavit will be produced in court in connection with a vendor and purchaser's summons relating to a property situate on Swan Street and it may be of assistance if I make reference to the agreements for sale of three properties situated in Swan Street which were sold through the office of Cottle, Catford & Co. during the...
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