Remedies of a deceived purchaser who takes subject to an overriding interest because of sellers deception

[consistent]

H, husband of W, holds a house on implied trust (W contributes to purchase price) for both of them but has sole registered title. While W is away, he invites P to view the house with a view to selling without W'S consent or knowledge. P views the house and sees W's clothes, but H claims that these belong to a visiting family member, avoiding mention of W. H then destroys the clothes before P again views the house at the time of disposition, and only a picture of H and W remains as evidence of W.

P buys the property. While the issue is clearly one of actual occupation under LRA 2002, the outcome is not clear because of the need for occupation to be obvious. My question is this: In the event that the court finds occupation (despite the fact this may be unlikely given the aims of the new act), then P will take subject to W's interest and interest to occupy, holding it on trust for her. As P is in this very rare situation entirely blameless due to the considered deception by H, does P have any remedy? My understanding is he can't get rid of W's interest, but can he sue H for misrepresentation, breach of contract or something of that kind?

[Eve]

Was W's occupation not disclosed in the occupancy section of the Seller's Property Information Form?

I take it the contract was for vacant possession and W did not sign the contract for sale.

Is W trying to remain in the property? Is W still in the property? Has W gone to court about this?

Was W given any part of the sale proceeds in respect of her contribution? Was there any document detailing the beneficial interest?

[factor-fiction]

What is the relevance of H destroying W's clothes? Why not just put them in the wardrobe or boot of the car. How did H explain all this to W? I'd love to hear the rest of thestory

[consistent]

Factor 30, the relevance of H destroying W's clothes is that actual occupancy can be symbolic - the leaving of possessions was held to be so in Chhokar v Chhokar (where coupled with an intention to return). I have no idea why he chose to burn them though. It doesn't matter about W , I wonder about the situation between P and H. H and W will obviously have some marital strife - I don't think W and H will stay together...

Jenna, there was no disclosure of W as she had not registered her interest and had been away from the property for a 3 month university term. W therefore is not in the property nor does she have any knowledge of any of this during the disposition but finds out afterwards, when she comes home for university holidays, so did not sign a contract. In my scenario, the court takes a compassionate view of the law and holds her occupation to be extant, although on a basis that is uncomfortably close to constructive notice. Therefore, W continues to live in the property while P has a useless (for now) legal title, holding on trust for her because of her right of occupancy that is part of her equitable beneficiary's right. She recieves no part of the proceeds because she keeps her actual interest in the property and of occupation under P's title. I would just like to know whether P can sue H for the lies that lead to this situation? (As to whether she has gone to court, I don't know but she has interest, so I wonder what else she could do also?)

[fredpuli47]

I'm no property lawyer but my curiosity is aroused:Why can't the purchaser have the sale and conveyance set aside on the grounds that there was a fundamental misrepresentation as to fact ?It's pretty fundamental that a property sold with vacant possession and quiet enjoyment is sold on the basis that it hasn't got a tenant or anyone else with a claim to live there or any interest in the land! On the face of it the vendor was aware of such a possible claim : a cynic would say that the vendor deliberately acted to create the impression there was none.