Land Law

Ninth edition

by Mark Davys

Three Students: a Further Tale


Is there already a valid contract for the sale and purchase of the house?

Note that there are actually two separate agreements:

  1. the agreement between Alexia, Brian and Eric (1) and Denise (2) for the sale and purchase of the house; and
  2. the agreement between Alexia, Brian and Eric to enter into agreement (a).

Unless otherwise indicated, all the statutory references below are to the Law of Property (Miscellaneous Provisions) Act 1989.


  1. The agreement for the sale and purchase of the house.

    1. Is this a contract ‘for the sale or other disposition of an interest in land’ (s 2(1))?
      Yes.
    2. Does it fall within the exceptions in s 2(5)?
      No.
    3. Have the parties signed anything (s 2(3))?
      Yes, but we don’t know exactly what. For example, did all the parties sign a single document or did they sign duplicates – and if they signed duplicates, have they been exchanged (s 2(1))?
    4. What terms did the parties expressly agree?
      We need details of all the terms verbally agreed between the parties – not just those set out in the memorandum.
    5. Does the memorandum incorporate (expressly or by reference to another document) all of the express terms of the agreement (s 2(1),(2))?
      It is impossible to say from the information that we have whether all of the expressly agreed terms of the agreement were set out in the ‘memorandum of sale’. We need to know what was agreed (see (iv) above) and we need to see a copy of the memorandum. Some of the further questions that need to be asked are:
      • does the memorandum refer to the furniture (it seems unlikely that the agreement about including the furniture is a collateral contract – see North Eastern Properties Ltd v Coleman [2010] 1 WLR 2715)?
      • Was the memorandum dated? If not, this may indicate absence of an intention to create a legally binding agreement at this stage (in which case there is nothing for section 2 to bite on).

  2. The agreement between Alexia, Brian and Eric.

    Even if the contract with Denise is void, Alexia may still find herself in breach of contract with Brian and Eric if she withdraws and they wish to continue with buying the house.
    1. Is this a contract ‘for the sale of or other disposition of an interest in land’ (s.2(1))?
      Probably not. Section 2 does not apply to all agreements relating to land, only those that constitute ‘the sale or other disposition of an interest in land’ (see Land Law, Section 12.4.2(b)). In Nweze v Nwoko [2004] 2 P & CR 667 the Court of Appeal distinguished between a contract under which an interest in land is actually sold and a contract which is to result in such a sale. The latter did not fall within section 2 of the 1989 Act.
    2. Is there a contract?
      The answer will depend upon the presence of the usual contractual requirements of offer, acceptance and consideration. If present the validity of the contract will not be affected by any failure to satisfy section 2.

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