A woman is in the process of selling her property and has found a potential buyer. For five years, the woman has allowed her neighbour to use a shortcut across her land to reach a nearby park. However, this agreement has never been formalized. As a result of her neighbour's frequent crossing, a path has been worn in the rear of the property.
Should the woman disclose her use in the contract with the buyer?
A woman is in the process of selling her property and has found a potential buyer. For five years, the woman has allowed her neighbour to use a shortcut across her land to reach a nearby park. However, this agreement has never been formalized. As a result of her neighbour's frequent crossing, a path has been worn in the rear of the property.
Should the woman disclose her use in the contract with the buyer?
No, because the use is a patent defect and patent defects need not be disclosed.
(C) The woman in question does not need to disclose the use of a right-of-way as it is a patent defect. A patent defect is visible and does not require disclosure in the contract. The seller's duty of disclosure does not extend to patent defects. However, a prudent solicitor would advise the woman to disclose the right-of-way to avoid any possible misrepresentation claim, which is not required under these circumstances.
Option (A) is incorrect because the defect is patent (obvious) rather than latent (not obvious), and because the rule is the opposite of what is stated - latent defects must be disclosed.
Option (B) is incorrect because disclosure is not required here, so non-disclosure will not result in liability.
Option (D) is incorrect as the doctrine of 'caveat emptor' (let the buyer beware) is why the defect does not need to be referred to in the contract. Since the defect is observable, the doctrine of caveat emptor applies, and the buyer must discover the defect.
Option (E) is incorrect because it has the rule backwards - patent defects need not be disclosed, as discussed above.