Identifying property to be sold: plan ‘for identification only’

In Green Park Properties Ltd v Dorku Ltd ((2001) 4 HKCFAR 448, CFA) the parties had entered into a provisional sale and purchase agreement in respect of some ground floor shops in a multi-storey building. There was a small yard at the rear of one of the shops, only accessible via the shop and appearing to the observer to belong to the shop. In fact, the DMC for the building designated it as a common area. The question was whether the yard was included in the area covered by the sale and purchase agreement. If so, there was a breach (since the seller did not have the right to possession). The sale and purchase agreement simply referred to an address and so was no help on the point. The sale was, however, subject to tenancies and the lease of the relevant shop was annexed to the sale and purchase agreement (but without the plan attached to the original lease ‘for identification only’). This plan did show the yard as being included in the tenancy and so, the court held, as being included in the area covered by the sale and purchase agreement. It was the best that could be done  in terms of identifying the area and resolving the uncertainty. The possibility that the uncertainty as to the property agreed to be sold rendered the agreement void had not been pleaded.

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