Conveyancing

Ewen Ross Alexander as the Trustee on the sequestrated estates of David George Pocock v Skene Investments (Aberdeen) Ltd and others, [2011] CSOH 144

Tue, 06 Sep 2011 19:34:06 GMT

The facts

Outer House case in which a trustee in bankruptcy sought declarators and reductions relating to a series of conveyancing transactions which followed an alleged fraud on the part of a bankrupt (Mr Pocock).

The transactions related to the sale of a property at Queen’s Gardens in Aberdeen. The trustee discovered that a disposition of the property by Skene Investments in favour of Mr Pocock had not been registered and that a second disposition in favour of Howemoss Properties Limited had been lodged with the Keeper. Various transactions had then taken place in reliance on the Howemoss disposition. However, the trustee contended that Skene had not executed the Howemoss disposition and believed it to be an unauthorised alteration of the original disposition, the price and purchaser having been altered without Skene’s consent. (Although he did not know the purpose of the alteration, the trustee believed that it may have been altered to avoid payment of stamp duty.)

The Trustee sought declarator that the Howemoss disposition and various dispositions and standard securities based on it were a non domino (i.e. by someone who is not the owner). He also sought declarator of the tenor of the first disposition which be believed to have been lost or destroyed.

Proving the tenor of the original disposition

It was argued by the parties who transacted on the strength of the Howemoss disposition (the third parties) that it was not open to the trustee to prove the tenor of the first disposition as, rather like tearing up a will, the act of destroying the deed meant the rights created by it were lost and the trustee was in no better a position than Mr Pocock. That argument was rejected by Lord Uist who found that, in such circumstances, whether a person was precluded from proving the tenor of a deed would depend on, the nature of the deed, by whom it was destroyed and for what purpose. In this case Lord Uist saw no reason why there should be any legal bar to the trustee proving the tenor of a disposition in favour of Mr Pocock. Mr Pocock had paid a purchase price of £207,125 and the trustee claimed Mr Pocock had deliberately destroyed the deed order to conceal the fact that he had purchased the property. It would be a denial of justice if the trustee were not allowed to prove the tenor of the original disposition.

The tantum et tale principle

The third parties also argued that, as a result of the tantum et tale principle, the trustee took Mr Pocock’s estate exactly as it stood in Mr Pocock’s hands at the time of the sequestration. Thus, if Mr Pocock were unable to prove the tenor of the original disposition or reduce the subsequent writs (as a result of personal bar or by the effect of his own fraud), then so too would the trustee.

However, after considering the terms of the Bankruptcy (Scotland) Act 1985 and Burnett’s Trustee v Grainger (2004), Lord Uist found that the tantum et tale argument has been discredited. Applying Burnett’s Trustee to the present case:

“the relevant picture is not of the permanent trustee stepping into the shoes of the bankrupt, but of the bankrupt’s estate being taken from him and placed in the hands of a completely different individual, the trustee for the bankrupt’s creditors, which suggests that in so far as the bankrupt himself may be subject to personal obligations, those obligations do not affect this new person, the permanent trustee.”

And with regard to fraud:

“the cases show that a trustee in bankruptcy cannot benefit from the fraud of the debtor which enlarges the estate for distribution, but that is patently not the case here. If anything, it is the contrary: the trustee’s position is that Mr Pocock fraudulently alienated part of his estate and he now seeks to reclaim, for the benefit of the whole body of creditors, the property so alienated. What the trustee is seeking to do is to annul a fraud which has wrongfully diminished the bankrupt’s estate, not benefit from the bankrupt’s fraud in order to enlarge the estate.”

William Stuart Fullarton v. Frank Anson Smith and Margaret Smith, Sheriff Derek Livingston, Kilmarnock Sheriff Court, 25th July 2011

Thu, 18 Aug 2011 16:40:21 GMT

Parties and Background
The defenders had entered into missives to purchase a house from the pursuers. The date of entry was to be 4th July 2008. The missives provided that the defenders would be in material breach of the contract if payment was not received on the entry date. The missives also stated that they were to be legally enforceable for two years from the date of entry.

However, the defenders did not take entry and settle payment until the 28th November 2008. No formal amendment was ever made to the Missives. The pursuers agreed to settle on that date but reserved the right to claim for losses arising from the delay between the dates. The pursuers raised proceedings to recover losses on 24th November 2008, more than two years after the original entry date but within two years of the new entry date.

Parties’ Submissions
The defenders submitted that the action was time-barred. The date of entry in terms of the missives was 4th July 2008 and the two year period referred to in the missives expired on 3rd July 2010.
Even if the missives had been amended so that the date of entry was 28th November 2008, the Defender would not have been in breach of the contract as amended since the Defenders had made payment on the date of entry (28th November 2008).

The pursuers argued that although the date of entry had been changed to the 28th November, the pursuers had reserved their right to claim damages arising from the delay. The defenders could not argue that there was a new date of entry but deny that the two year deadline ran from the new date.

Decision
The sheriff found in favour of the defenders. The pursuers had only agreed to settle on the 28th November but had not agreed that this date would become a new date of entry. The date of entry had not been amended in terms of the missives therefore it remained 4th July 2008. As a result the action was time-barred.

William Stuart Fullerton v Frank Anson Smith and Margaret Smith, A891/10

Thu, 11 Aug 2011 09:40:00 GMT

Sheriff court case concerning an action for damages for failure to pay the purchase price timeously in terms of missives for the purchase/sale of a house in Saltcoats.

The missives provided for a date of entry of 4th July 2008. However, settlement did not take place and the purchase price was not paid until the 28th November 2010. No formal amendment was made to the missives. However, there was correspondence between the parties in which the sellers indicated that they were reserving the right to recover losses in terms of the original missives. There were also various references to the date of entry and date of settlement in the correspondence between the parties which led to debate in court as to whether the missives had been varied.

As is normal, the missives contained a supersession clause providing that they ceased to have effect after two years from the date of entry. The sellers served an action for claims on 24 of November 2010. I.e. less than 2 years after entry was taken but more than 2 years after the date of entry provided in the missives.

The sellers claimed that the date of entry in the missives had been changed in the correspondence whereas the purchasers argued it had not.

Sheriff Livingstone found that the exchange of correspondence did not change the date of entry which in his view had a technical as well as a practical meaning.

“In other words…the date that a party actually pays over the price i.e. the settlement date or the date that a party actually moves in both of which might lay claim to being the date of entry will not affect the date of entry in the missives in the absence of parties agreeing same. It might be more apt to describe the date of entry as being the agreed date for the seller to deliver a disposition in return for the buyer paying over the purchase price no matter when these things actually happen. There is no doubt in this case that the date of entry was 4th July 2008 and it seems to me that this was a contractually agreed date of entry and could only be changed by agreement and further such an agreement would have to adhere to certain formalities. It is clear to me from the correspondence that although the Defenders solicitors asked the Pursuers to agree to a new date of entry the Pursuer never agreed to that. What the Pursuer did do was agree to settle on 28th November 2008. That does not constitute an agreement to change the date of entry. The Pursuer did sign a disposition which refers to “WITH ENTRY and vacant possession as at 28th November 2008 notwithstanding the date or dates hereof” but it seems to me that again that does not change the date of entry but effectively uses entry in a different sense referring to the date from which the [purchasers] became the heritable proprietor.”

As a result the date of entry was 4 July 2008 meaning the proceedings should have been raised by 3rd July 2010 and sellers were time barred from raising the action.

Mr John Hunter v Mrs Helen Tindale, SA932/10

Tue, 02 Aug 2011 11:07:35 GMT

Sheriff Court case concerning the maintenance of part of an archway over a pend on Constitution Street in Edinburgh. The pend is a passage running through a tenement giving access to a courtyard and premises to the rear. The issue for the court was whether the owner of the pend was liable for a share of the cost of repairs to the archway above it.

Sheriff Morrison found that the pend was not part of the tenement and, although it could be described as a “connected passage”, there were no stairs or landings within it meaning that it did not satisfy the definition of a “close” in the Tenements (Scotland) Act 2004. As a result, the owners of the tenement were unable to recover a share of the costs from the owner of the pend.

Sheriff Principal (Stephen), however, allowed an appeal finding that, whilst the pend was not a close, it was nevertheless a “sector” of the tenement in terms of s29(1) of the Act. The sheriff principal also took account of the fact that the pend was enclosed from the street by large ornate gates and concluded that the pend did form part of the tenement. As such, the obligations (to provide support and shelter) contained s8(1) to (3) of the Act, applied to it.

In finding that the owner of the pend was liable for a share of the repairs the sheriff principal noted:

“It would also offend against common sense to hold otherwise. The requirement to repair the pediment was accepted. The pediment relates to the archway over no 123. The viability and soundness of the pediment and archway must clearly be a matter of common concern to the owners of the flats and also the pend. There would be serious implications for all if there were to be a fall of masonry or a collapse of the pediment/archway. The sheriff’s judgment would excuse or exonerate the owners of the pend from responsibility for maintenance of the archway or other common parts. This cannot be a proper or reasonable outcome in the circumstances. The archway forms the roof and boundary of the pend and the owner of the pend has a common interest along with the owners of flats in 121 and 125 in maintaining the archway.”

Compugraphics International Ltd v. Colin Nikolic, [2011] CSIH 34

Tue, 12 Jul 2011 17:49:49 GMT

Case concerning rights to air conditioning apparatus overhanging a neighbouring property. In 2007 Mr Nikolic bought land neighbouring Compugraphics factory at Eastfield Industrial Estate in Glenrothes. He asked Compugraphics to remove the overhanging pipes, ductwork and supporting stantions (which had been in place since 1971) from his land.

Compugraphics raised an action claiming that either (1) they owned the pipes and were entitled to retain them in place free from interference by Mr Nikolic or alternatively (2) that they had a servitude right to retain the apparatus in place.

An Extra Division of the Inner House found that although the title contained a clear and unambiguous bounding description under which Mr Nikolic owned the solum of the path the apparatus was overhanging, the apparatus which protruded into Mr Nikolic’s airspace was a fixture of the factory which had been conveyed to Compugraphics. The court did not accept that the apparatus could remain in Mr Nicolic’s airspace as of right by virtue of constituting a separate heritable tenement. However, it was possible that Compugraphics had obtained servitude rights by prescription allowing them to retain the apparatus in position.

In coming to this conclusion the court confirmed that Scots law recognises servitude rights of both projection and support. Moreover, the servitude of support was not limited to support between buildings (as is commonly encountered in flatted properties) but could also extend to support by pillars or posts in the ground.

It was also noted as an addendum that s77 of the Title Conditions (Scotland) Act 2003 which provides for a positive servitude of leading pipes over or under land may also assist in resolving the dispute.

Gregor Homes Ltd v. Mark Anthony Emlick, Sheriff William Holligan, Edinburgh Sheriff Court, 11th January 2011

Sat, 09 Apr 2011 21:22:54 GMT

The pursuers were a limited company engaged in the development and sale of houses. The defender was a businessman. The parties exchanged missives between May 2006 and August 2007 under which the defender agreed to purchase property from the pursuers. The property required to be extensively remodelled to meet the defender’s specifications. The price of the property and works was in excess of £3 million. The missives contained a mechanism for establishing a date of entry by reference to "practical completion". The parties disputed whether practical completion had been achieved. As a result the defender failed to provide payment and the pursuers rescinded the missives in January 2009. The property required to be remarketed by the pursuers and was resold a price of £1.7 million.

Parties’ Submissions:
During the time of renovations the defender was living in Dubai so confirmed to the pursuers on 13th November 2007 that his agent, Mr. Rutherford, had authority to give instructions on his behalf. The pursuers submitted that practical completion was achieved with the agreement of the defender’s agent on or around 20th October 2008. As a result the relevant date of entry was 21st November 2008. They argued that the defender was in breach of his obligations by failing to make payment of the purchase price on or after the date of entry. The defender denied that practical completion was achieved and that Mr Rutherford had any authority to agree practical completion. He therefore denied that payment was due.

Decision:
The sheriff found for the pursuers. He held that Mr Rutherford was acting as the agent of the defender and that on the 20th October 2008 he agreed with the pursuers that practical completion was achieved. The date of entry in respect of the missives for the property was therefore 21st November 2008. The defender was in breach of his obligations in terms of the missives and failed to make payment of the purchase price on or after the date of entry.

AMA (New Town) Limited v Paul McKenna, Sheriff Principal Edward F Bowen QC, Edinburgh Sheriff Court, 28th February 2011

Sat, 09 Apr 2011 18:15:00 GMT

This was an appeal against a Sheriff’s decision to grant decree in favour of the pursuers in an action for payment. The parties had entered into Missives, on conclusion of which part of the purchase price was paid. The defender and appellant then indicated to the pursuers and respondents that he was ‘not in a position’ to proceed with the purchase. An action was raised for payment of the balance of price said to be due, plus accrued interest. The issue on appeal was whether, when told the purchaser does not intend to proceed with the bargain, a seller of heritable property has the right to obtain decree for the price in unqualified terms.

It was submitted for the appellant that while the pursuers were entitled to seek implement of the bargain, they were not entitled to retain title to the property and at the same time hold a decree for payment of the price. In the case of White & Carter (Councils) Limited v McGregor 1962 SC (HL) considered by the Sheriff, the contract could be completed by the pursuers’ performance alone, unlike in the present action. Further, the Sheriff erred in failing to recognise the distinction between decrees for implement and payment. The Sheriff’s reliance on Bosco Design Services Limited v Plastic Sealant Services Limited 1979 SC 189 as authority for the procedure of obtaining a straightforward decree for payment and endorsement of the form of crave in the present action was also challenged.

Counsel for the respondents submitted the Sheriff’s interpretation of Bosco was correct and the action was competent. Whilst the authorities indicated that in certain circumstances the court might, on equitable grounds, decline to give an innocent party the remedy to which he would otherwise be entitled, that did not support the defender’s position in respect of competency.

The Sheriff Principal accepted the respondents’ submission that the action in the present case was founded on a contractual right to payment, but he was not convinced that such a contractual right existed. Although an innocent party to a repudiated contract has the right to disregard the repudiation and insist on implement, enforcement of that ‘insistence’ is restricted. It appeared from the authorities that when the obligation sought to be fulfilled is one for payment of money, it may be enforced only where no action by the defender is required to complete the contract. The significant question was whether the decision in Bosco truly approved the procedure of obtaining a decree for payment in unqualified terms. In light of the circumstances and context of that case, the Sheriff Principal did not consider it to be authority for the proposition that one can sue for the contract price on the basis of an uncompleted contract.

The Sheriff Principal considered that, in the circumstances, it was not open to the pursuers to seek a straightforward decree for payment. Expressing the view that the issue was more properly one of relevancy rather than competency (as it had been presented), the Sheriff Principal concluded that the pursuers had not relevantly averred a contractual debt upon which they were entitled to obtain a decree for payment. He accordingly sustained the appeal, recalling the Sheriff’s interlocutors, sustained the defender's second plea-in-law (which covered both competency and relevancy) and dismissed the action, finding the respondents liable in the expenses of the action.

FORBO-NAIRN LIMITED (Pursuers and Respondents) v MURRAYFIELD PROPERTIES LIMITED

Thu, 07 Jan 2010 11:55:15 GMT

Inner House: Appeal; The pursuers were the owners of a linolium factory. They agreed to sell surplus land at their factory site to the defenders. The defenders obtained permission for developement of a supermarket over the Subjects of an adjoining site owned by Fife Enterprise. Appeal of decision by Lord Ordinary determining the nature of the title to be given by the pursuers to the defenders in terms of clause 10 of the missives. Interpretation of missives. Disputed: whether the wording of clause 10 required the insertion of a real burden into the titles a) prohibiting the use of the Subjects for residential purposes; and b) prohibiting the proprietors from acquiring the adjoining subjects from FE without inserting a similar condition into their titles. Disputed by the defenders that the obligation was personal to themselves and specified 'connected' persons and did not apply to successors in title. Disputed: whether the defenders were in breach of clause 10. Lord Ordinary's judgement upheld. Reclaiming motion refused.

FRANK HOULGATE INVESTMENT COMPANY LIMITED v BIGGART BAILLIE LLP

Thu, 07 Jan 2010 11:44:32 GMT

Reparation: Action for damages. The pursuers were an investment company. Their primary shareholder, Mr Houlgate had been introduced to a fraudster, John M. Cameron. Mr Cameron illicited funds from the pursuers for investment in a company called Securimax. When he invited the pursuers to invest £500,000 in the company, the pursuers required security for the loan. Mr Cameron advised that he owned a property called Balbuthie Farm. The true owner of the property was a Mr John Bell Cameron. Mr J.M.Cameron instructed the Defenders to act on his behalf to prepare a standard security over the property, which they did. Averred by the pursuers that the defenders thereafter became aware that their client, Mr J.M Cameron was acting fraudulently; that they did not disclose this to the pursuers; that they continued to act for Mr Cameron and presented a discharge of the standard security to the Keeper for registration even though they knew he was not the owner of Balbuthie Farm. Disputed; whether the defenders owed a duty of care to the pursuers; whether the defenders were in breach of warranty of authority. Action dismissed. Defenders indeed had warrant of authority and the defenders failure to inform the pursuers of their client's identity did not give rise to any liability in damages.

Aviemore Highland Resort Limited v Cairngorms National Park Authority – Inverness Sheriff Court, January 2009

Thu, 05 Feb 2009 12:28:00 GMT

The Pursuers brought an appeal by summary application under Section 14 of the Land Reform (Scotland) Act 2003 against a notice served on them by the Defenders as local planning authority. The notice required the Pursuers to remove a section of fence and hedge from their property to allow a gap of no less than 2 metres. The Pursuers maintained that the fence, which was erected in 2004, did not interfere with any access rights as it had been erected before the relevant part of the 2003 Act came into force. In addition, their property fell within a category of land exempt from the exercise of access rights under Section 6 of the Act as it formed the curtilage of a group of buildings. The notice should be quashed as it was incompetent. Alternatively, it should be recalled on the basis that no access rights under the Act existed. Their fall back position was that, even if access rights did apply to the property, the presence of the fence would not cause unreasonable interference with the exercise of those rights. The fence had been erected for land management purposes, particularly to prevent or discourage access to the Pursuers' property during the hours of darkness, other than by established routes. On that basis, the notice should be recalled. The Defenders’ position was that the fence and hedge were barriers to access rights. They maintained that, before the fence was erected, members of the public had unrestricted access to the Pursuers’ property for many years. They served notice on the Pursuers in exercise of their duty under the 2003 Act to uphold access rights. The Defenders did not accept that the land was exempt from the exercise of access rights under Section 6. The Pursuers’ averments that the notice was incompetent because the fence had been erected before the Act came into force were irrelevant, as were the averments in relation to the fence being erected for land management purposes. There was no basis in the pleadings for the argument that the land formed part of the curtilage of a group of buildings. The action should be dismissed. Following a Debate, the Sheriff stated that he did not consider it relevant that the fence had been erected before Part 1 of the 2003 Act came into force. When the fence had been erected, it impeded an existing route used by members of the public and it continued to do so when Part 1 came into force. This remained the position when the notice was served. In that situation, no question arose as to whether the Act should be read with any retrospective effect. He decided that the Pursuers’ averments in the support of their assertion that access rights did not exist because the relevant stretch of land formed part of the curtilage of a group of buildings were so unspecific that they gave no notice of the Pursuers’ case and failed the test of relevancy and specification. They were excluded from probation. The averments regarding land management gave sufficient notice of the Pursuers’ reasons for erecting the fence and planting the bushes. In the Sheriff’s view, it could not be said that this argument was bound to fail, but the averments were sparse and so a Proof Before Answer was appropriate.

Lindsay & Barbara Ross v Stirling Council, Stirling Sheriff Court, 23 April 2008

Thu, 12 Jun 2008 08:07:00 GMT

This case is related to the decision in Snowie v Stirling Council and The Ramblers Association (Sheriff A Cubie, Stirling Sheriff Court – 23^rd April 2008). The Pursuers in this case lived at the West Lodge on Boquhan Estate. Over a period of years, many pedestrians had taken access to the Estate. There were two sets of gates allowing access to the Estate, both for vehicles and pedestrians. In 2003 one set of pedestrian gates was locked. The owners of the Estate, the Snowies, were the key holders. In 2006 they entered into a lease with the Pursuers which gave the Pursuers responsibility for the gates that had been locked. The First Defenders, Stirling Council, issued both the Snowies and the Pursuers with written notice alleging a contravention of Section 23 of the Land Reform (Sc) Act 2003. The Pursuers appealed against the notice and their application proceeded in tandem with the Snowies' application. The Sheriff held that it was not necessary for the gates to be locked to give the Pursuers reasonable measures of privacy, nor to ensure that their enjoyment of their property was not unreasonably disturbed. It was not necessary that the gates be locked for insurance or security purposes. The Sheriff held that the Lodge had sufficient land in the defined garden areas to enable the Pursuers to have reasonable measures of privacy or to ensure their enjoyment was not unreasonably disturbed. Accordingly, there was no requirement for any ground to be excluded from public access. He held that the Pursuers were in contravention of Section 14(1) of the 2003 Act and that the Defenders’ notice had been both necessary and reasonable. The application was dismissed. The Sheriff determined, with the use of a map, land over which he considered it appropriate to give the protection afforded by the Act.

Euan & Claire Snowie v Stirling Council & The Ramblers Association, Stirling Sheriff Court - 23 April 2008

Thu, 12 Jun 2008 08:06:00 GMT

The Pursuers were the heritable proprietors of Boquhan Estate in Kippen. Over a period of years, many pedestrians had taken access to the Estate. There were two sets of gates allowing access to the Estate, both for vehicles and pedestrians. In 2003 one set of pedestrian gates was locked. The First Defenders, Stirling Council, received complaints about this but, despite discussions, the Pursuers refused to open the gates. In 2006 the first Defenders issued the Pursuers with a written notice alleging a contravention of Section 23 of the Land Reform (Sc) Act 2003. The Pursuers then applied to the Court to have a substantial part of their Estate excluded from public access. The Sheriff heard evidence and also considered the terms of the 2003 Act in detail. The crux of the matter was the test to be applied when assessing what was “reasonable” in the context of a decision about the measure of privacy and enjoyment in terms of Section 6(1)(b)(iv) of the Act. The Sheriff adopted the analysis of the law contained in Sheriff Fletcher’s judgement in Gould v Perth & Kinross Council (Sheriff Michael Fletcher, Perth Sheriff Court, 12 June 2007). He found that it was not necessary for gates to be locked to enable the Pursuers to have reasonable privacy, nor to ensure that their enjoyment of their property was not unreasonably disturbed. It was not necessary for security purposes, nor for insurance reasons. He held that the Pursuers were in contravention of Section 14(1) of the 2003 Act and that the Defenders’ notice had been both necessary and reasonable. He dismissed the Pursuers’ application. The Sheriff disagreed with the Pursuers’ submission that “reasonable privacy” was not an objective standard. When interpreting the relevant part of Section 6, the Court had to determine what a reasonable person living in a property of the type under consideration would require in order to enjoy reasonable measures of privacy and to ensure enjoyment of the house was not unreasonably disturbed. That was an objective test. The Sheriff was of the view that the Pursuers sought to exclude far too much land and he determined with the use of a map the area of land over which he considered it appropriate to give the protection afforded by the Act.

Leslie Stuart Malkin and Another v. Mark Gibson [2008] CSIH 25

Thu, 20 Mar 2008 17:04:00 GMT

Appeal from the Sheriff Court:- This action related to a boundary dispute between neighbouring proprietors in Stirlingshire. The pursuer raised an action in the sheriff court for decree ordaining the defender to uplift and remove all building materials in the disputed area and interdict to prevent him from entering into the disputed area to carry out any building works. The defenders lodged a counterclaim which contained a number of craves including declarator that the defender was the heritable proprietor of the disputed area and also a claim for rectification. In response to the counterclaim, the pursuers enrolled a plea to its relevancy and following debate before the sheriff, the plea was repelled. The pursuers appealed against the interlocuter issued by the sheriff, in particular, the question of whether there should also be a proof before answer on the claim for rectification contained in the counterclaim. Here the court considered whether there were sufficient relevant averments in the counterclaim to support the claim for rectification contained in the third and fourth craves of the counterclaim

Barker and Others v Lewis – Cupar Sheriff Court, 5 March 2008

Wed, 19 Mar 2008 23:08:00 GMT

Appeal – Action for Interdict - Title and Interest to enforce Title Conditions - Title Conditions (Scotland) Act 2003 Section 8(3)(a)

The Pursuers/Appellants raised an action for an interdict against the Defender/Respondent, their neighbour in a small rural housing development. The parties' titles were all subject to burdens and conditions specified in a Deed of Conditions. Condition Third provided that each property "shall be used and occupied by the proprietors as a domestic dwellinghouse with relative offices only and for use by one family only and no other purpose whatsoever". It also provided that each proprietor was entitled to enforce the conditions against each other "for the protection of the amenity of the development." The Defender operated a bed and breakfast business from her property. There were a number of incidents which caused the Pursuers concern and which they attributed to the operation of the business. They sought to interdict the Defender from operating a bed and breakfast or similar business from her house and alleged that she was in breach of Condition Third. The Defender challenged the Pursuers’ title and interest to enforce that Condition. Following a Proof the Sheriff found that the Pursuers had title but no interest to enforce the condition and refused the crave for interdict. The Pursuers appealed. The question which the Sheriff Principal had to consider was whether the Pursuers had interest to enforce the real burden. This question was governed by the terms of Section 8(3)(a) of the 2003 Act. That section provides that a person has interest if failure to comply with the real burden results in "material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefited property." In considering the meaning the this section, the Sheriff had found it helpful to apply the law of nuisance. He had taken the view that "material" meant "substantial" and "value" meant "market value". The Sheriff Principal considered whether the Sheriff's approach had been correct.

Brian & Jean Gray v. William Welsh [2008] CSIH 11

Wed, 06 Feb 2008 18:21:00 GMT

Reclaiming Motion:- Here the defender enrolled the reclaiming motion against an interlocutor of the Lord Ordinary in which, following the hearing of a debate on the Procedure Roll, the Lord Ordinary allowed a proof before answer. In the case the pursuers seeks the costs of preventative measures to obviate an alleged risk of a similar landslip or erosion affecting the pursuers' garden ground in the event of future spates. It is claimed by the pursuers that the landslips or erosion which have occurred in the neighbouring gardens, and the alleged risk of future landslip or erosion in the case of the pursuers' garden, arise from the fact averred by them that the ground adjacent to the Clyde which slipped or was eroded in the case of the neighbouring properties, and which is said to be at risk of similar slippage or erosion in the case of the pursuers' garden, and is referred to as "Made Ground". The pursuers advance their claim for recovery of the costs of the proposed preventative works intended to rectify the alleged deficiencies in the Made Ground on two grounds:- (1) in terms of the missives and the variations agreed the scope of the defender's contractual obligations included that of "constructing" the garden ground and that there was to be implied into the claimed contractual obligation to construct the garden ground a term that the work of carrying out that construction would be done with the reasonable care and skill to be expected of a competent contractor; and (2) in the absence of a contractual obligation to construct the Made Ground there was nonetheless a delictual duty on the defender, when de facto taking on the work or activity of constructing the Made Ground, to exercise reasonable care when performing that task. It was submitted on behalf of the defender that the pursuers' pleadings did not give sufficient notice or specification of the respect in which the defender allegedly failed to fulfil any duty of care respecting the construction of the Made Ground, whether arising out of contractural or delictual obligations.

Aberdeen City Council v Alok Wanchoo [2008] CSIH 6

Thu, 17 Jan 2008 13:25:00 GMT

Reclaiming motion – Right of servitude/positive prescription. Appealed against interlocutor of Lord Ordinary at Proof before Answer in favour of servitude right of defender. Unbuilt ground beside warehouse had previously been used as a car park. Defender purchased this ground in 2003. Costly permanent vehicular access had been built by predecessors of defenders. Court considered that much of decision founded upon actions of predecessors of both pursuers and defenders. Court took account of vehicular access built by predecessors of defenders and negotiations concerning lease of area indicating that servitude right existed. Motion refused.

PS Properties (2) Limited v. Callaway Homes Limited [2007] CSOH 162

Thu, 27 Sep 2007 10:26:00 GMT

Motion for Recall of Interim Interdict:- On 24 August 2006, interim interdict was granted, interdicting the defenders or anyone on their behalf from proceeding to carry out certain structural work to the common stair of the tenement building 53 Murray Place, Stirling. The dispute arose from proposals to carry out structural work in the common stair of the property by the defenders who were the proprietors of the top left flat and the top right flat in the tenement. The pursuers were the proprietors of two shops in the same tenement. The consent of the pursuers, as proprietors, for the structural work was required but not given. In respect of the motion enrolled on behalf of the defenders to have the interim interdict recalled the defenders submitted that the majority of votes had been cast in favour of the scheme decision and they had a strong prima faci case for recall of the interim interdict. The pursuers submitted that the way the tenement had been divided, in so far as the scheme decision, was incorrect and rather than having six units the tenement originally had eight units and the voting should be calculated accordingly. The court here considered whether the defenders had a majority in favour of the scheme decision and whether the balance of convenience favoured them given that the work carried out in 2005 had been anticipated to be temporary and that permanent repair of the tenement was necessary.

Barry Firth & Sheila Magdalene Firth v. Blinkbonnie Developments Limited & Gary William Davidson [2007] CSOH 22

Wed, 07 Feb 2007 00:00:00 GMT

Motion for Summary Decree

Middlebank Ltd v The University of Dundee & The Keeper of the Registers of Scotland [2006] CSOH 202

Thu, 28 Dec 2006 00:00:00 GMT

Procedure Roll - Debate

Constance Popiel Newbould and others v. William Duncan McEwan and others

Fri, 22 Dec 2006 00:00:00 GMT

Proof

Boskabelle Limited v. Donald Black Laird [2006] CSOH 173

Thu, 09 Nov 2006 00:00:00 GMT

Procedure Roll - Accession

Holger R.M. Rouser v. A Decision of Lothian Valuation Appeal Committee Dated 25 October 2006 [2007] CSIH 37

Wed, 25 Oct 2006 00:00:00 GMT

Appeal against a decision of the Lothian Valuation Appeal Committee

Susuan Foster v. The Keeper of the Register of Scotland & Another[2006] CSOH 65

Mon, 01 May 2006 23:00:00 GMT

Judicial Review - Reduction of Entry in Land Regis

Angus Bell and Another V. Mrs. Flora Brown Campbell Of Fiddes [2006] CSIH 15

Tue, 28 Feb 2006 00:00:00 GMT

Reclaiming Motion

Daniel Williams APPS & Janice Apps V. William Grant Sinclair & Christine Sinclair

Thu, 23 Feb 2006 00:00:00 GMT

Appeal to Sheriff Principal following Debate

Edan Hugh Nelson Kenneil v Damon Balfour Nelson Kenneil and Alastair Thomas Nelson Kenneil

Wed, 18 Jan 2006 00:00:00 GMT

Action of Division and Sale

Candleberry Limited v Westend Homeowners Association

Fri, 23 Dec 2005 00:00:00 GMT

Property-Servitude Right of Access - Appeal to She