Conveyancing

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