ABSTRACT
In a sale of unregistered land, the vendor is under a two-fold duty as regards the title of the property he is selling. First, he must disclose to the purchaser, before entering into the contract, all latent defects in title,36 except those of which the purchaser is aware.37 ‘Patent’ defects need not be disclosed.38 A defect is not patent merely because the purchaser has constructive notice of it.39 It must be a defect which ‘arises either to the eye, or by necessary implication from something which is visible to the eye’,40 such as a right of way evidenced by a worn track. On the other hand, restrictive covenants41 and tenancies42 would be considered to be latent. The rationale of the duty to disclose latent defects in title is that the state of the vendor’s title is a matter
exclusively within his knowledge and it is reasonable to expect that the purchaser will rely on the vendor to disclose such defects.43 Where a vendor is in breach of this duty, the purchaser may treat the contract as repudiated and sue the vendor for damages.44 Moreover, although non-disclosure per se does not amount to misrepresentation, a ‘suppression of the truth may contain a suggestion of falsity’45 rendering the vendor liable in damages for misrepresentation; as where a vendor, in answering pre-contract inquiries as to the existence of boundary disputes, failed to disclose a long-standing boundary dispute which he erroneously believed to have been settled.46
