The High Court has ruled that a contract for the sale of land in County Wexford remained in force after the purchaser attempted to rescind it over a lis pendens registered against one of the vendors. The court said it would propose an order requiring the purchaser to complete the sale, subject to hearing further submissions on the form of the order. It dismissed his counterclaim.
The agreement was made in September 2007 for 28.309 acres at Ballyrea, County Wexford, at €620,000, with a €62,000 deposit. After a dispute about the boundaries, the parties agreed in November 2008 to reduce the price by €85,000, to €535,000.
As completion approached, the purchaser’s solicitors discovered a lis pendens registered in the High Court Central Office in connection with separate Circuit Court family proceedings involving the first plaintiff and his wife. The sellers’ solicitors later told the purchaser’s solicitors that the County Registrar had ordered the lis pendens vacated on 23 February 2009.
The purchaser had served a notice to complete on 28 January. In a letter dated 4 March, his solicitors said the contract was rescinded because clear title had not been furnished by the end of the 28-day period, and sought return of the deposit. The sellers maintained that the notice was valid but that the purchaser was not entitled to rescind: they said the lis pendens had been vacated in time and did not affect the registered land.
Justice Laffoy found the notice to complete valid. She also found the purchaser able, ready and willing to complete when it was served, and able to draw down the necessary finance within the notice period.
The judge said the lis pendens had never been registered as a burden on the folio for the land being sold. The County Registrar’s order vacating it took effect when pronounced, even though the order was perfected and the Central Office record updated later. On that basis, the purchaser could have completed with good marketable title free from claims by the applicant in the family proceedings.
The judge concluded that the sellers were in a position to furnish title free from those claims and that the purchaser was not entitled to rescind. The contract therefore continued to bind the parties. She did not rely on other arguments advanced by the sellers, including their solicitor’s undertaking to hold the sale proceeds in trust.
The judgment, delivered on 29 February 2012, states that the proposed specific-performance order remained subject to further submissions. It does not set out the final form of that order.