Head 7: Warrandice Flashcards
(30 cards)
Warrandice is…
A guarantee of a certain state of affairs at the certain point of time.
In the sale of land there are four guarantees which are implied by law…
- Seller’s warranty in missives
- Seller’s warranty in the disposition
- Keeper’s warranty as at the time of registration
- Warranties previously given to the seller of the seller’s predecessors.
The seller’s warranty in missives is..
An implied term in the missives, but normally appears as an express term also.
Seller’s warranty in missives is subject to a…
2 year supersession clause.
What two warranties are implied in the seller’s warranty in missives?
- That an absolutely valid title will be given to the buyer, and
- That the title will be free from encumbrances EXCEPT those which are either i) immaterial, or ii) known to the buyer at the date of conclusion of missives.
For seller’s warranty in missives: what types of encumbrances are immaterial?
Almost none.
Welsh v Russell - servitude not known about buy buyer was not trivial enough not to give rise to a claim in seller’s warranty in missives.
However in Lothian & Border Farmers it was held that a lease was immaterial (bad decision but remains the law)
For seller’s warranty in missives: what does knowledge of encumbrances include?
Constructive knowledge and actual knowledge
What is the seller’s warranty in disposition?
This is known as warrandice and is implied by law in the disposition (but it is also often included expressly)
What two types of warrandice are there?
Absolute and lesser.
When is absolute warrandice appplied?
In all cases where consideration is given for the transfer.
What does absolute warrandice comprise?
The same two guarantees as for missives.
When does absolute warrandice warrant the title from?
The title is warranted as at the date when it becomes operational (ie date of delivery of the disposition), excepted in relation to future acts by the seller.
Under absolute warrandice, for the warranty of absolute title, what is required before a claim can be raised?
Eviction is required before a claim arises.
What does ‘eviction’ mean?
Normally this means ‘judicial eviction’ - e.g. a court action by a challenger against your title. If this action is successful then you can claim under absolute warrandice from the disposition.
For ‘eviction’ how have the courts been more flexible lately?
If the challenger’s right is unquestionable, then this can amount to extra-judicial eviction, invoking the disposition warrandice without the need for litigation.
Morris v Rae 2012
Difficulty of how good the challenger’s title has to be for extra-judicial eviction to be possible.
An absolute warrandice claim can be started before eviction in relation to warranty of absolute title if…
- Seller denies he is bound by warrandice
2. Seller is verging on bankrupty (vergens ad inopiam)
No eviction is required for…
The guarantee under absolute warrandice of unencumbered title.
Also (exceptionally) no eviction is required for absolute warrandice of title where the defect is caused by a second inconsistent deed of the transferor.
What can be claimed under absolute warrandice?
Damages only.
Lesser (simple) warrandice is only available where….
Land is gifted rather than sold (NB absolute warrandice may be granted by an express clause).
What does lesser (simple) warrandice warrant?
Limits the warranty to defects caused by the future voluntary acts of the granter.
What is fact and deed warrandice?
This is never implied but is sometimes granted expressly, notably in dispositions by trustees or executors. This is limited to defects caused by acts of the granter, whether past or future.
Whereas the first two warranties relate to the state of the ……. title, the Keeper’s warranty goes further and guarantees the …….. title
Transferor’s
Transferee’s
The Keeper’s warranty guarantees that…
At the time of registration, the Register is accurate:
- In showing the transferee as owner, and
- In not omitting any encumbrances (other than those which cannot be shown on the Register
