KP Carmody & Co

You may have heard of the saying “Buyer Beware” to indicate that a buyer of real estate must be extremely thorough when purchasing a property to satisfy themselves as to what exactly they are getting.

In a recent case the court came down on the side of the buyer who said she was induced to enter into the purchase on the understanding that she could have access to a main road over adjoining land owned by the sellers.

Shortly, many years ago the buyer negotiated the purchase of a small rural holding. The buyer alleged, and the court accepted, that before the exchange of contracts the seller took the buyer through the adjoining block owned by the seller to the block being purchased by the buyer. Between exchange of contracts and completion the buyer sought, and was granted permission, by the seller to move a transportable house onto the block being purchased over the seller’s adjoining property. After completion the buyer continued to access her block through the seller’s adjoining block without objection. When the buyer started driving buses over the seller’s adjoining block many years later the seller objected and told the buyer to use other means of access. Unfortunately, although there were other street frontages the court found that they were not practical for access for various reasons.

The buyer took the matter to court claiming that the court should grant a right of way over the adjoining block owned by the seller because the buyer was induce to enter into the sale to the buyer by the representation by the seller that the buyer could access the block over the seller’s adjoining block.

The court found for the buyer on the basis that the buyer relied on the representation from the seller, which was by the conduct of the seller in showing her the block through the adjoining block, and that she would suffer a substantial detriment if she was not allowed to have a right of way over the seller’s adjoining block.

The moral of the story for sellers is to make sure all issues relating to access are covered by a written agreement which sets out exactly what the buyer’s rights are and whether any right of access can be determined by notice from the seller.

The advice in this article is general in nature and you should consult your solicitor for specific advice.