Does it sound fair to you that if, by mistake, you sell more land to someone than you had agreed to, the purchaser does not notice the mistake, and then they sell the land on before either of you realise the mistake, that you should get damages for the loss you have suffered?
Well that is what a Sheriff thought, but the purchaser appealed, lost again and appealed again. The Court of Session took very little time in saying that the two lower court judges were wrong.
Key points from the judgement were:-
- It could not be assumed that the seller and purchaser knew what was in the contract or the disposition. There had been no evidence led that the purchaser knew about the mistake and was therefore in bad faith when he sold on.
- The seller had not pointed to any particular breach of contract. This may have been technically correct in terms of the court pleadings, though if there was a contract to sell five acres and the disposition included another acre by mistake, the disposition was not in implement of the contract.
- There might have been an alternative remedy in reduction of the disposition. My own view is that this would be difficult, as the Land Register would not be rectified adverse to the interest of the proprietor in possession. There would be no claim against the Registers for compensation as there was nothing wrong with the conveyancing.
- There might have been a claim for unjustified enrichment. That is a complex area of law, but it seems to me to be likely to succeed. However what that gives the seller is money, not his land back.
It seems harsh for someone to be told after five years that they might have a good claim but because their lawyer used the wrong words in court they would have to start all over again. Appealing to the Court of Session will have been expensive, and they have still not had the value of the land that was sold by mistake.
What this case teaches us is that mistakes both in conveyancing and in taking the wrong approach to litigation cost money, and it is cheaper to do it right first time as one easy mistake can quickly lead to bigger problems.