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Anne Virdee v. Duncan Stewart [2011] CSOH 50


The pursuer and defender to this action were sister and brother, respectively. The defender had inherited a family croft at Kilmory, Acharacle in 1989, the land upon which the pursuer subsequently constructed a house for the use of her and her family. In this action, the pursuer claimed she was entitled to recompense from the defender on the basis that he had been unjustly enriched through this event, at her expense.

Following construction of the house, the pursuer told the defender that he was permitted to use the house whenever it was unoccupied. By 2009 however, the parties' relationship had deteriorated and the defender had taken over occupation and possession of the house entirely.

The defender argued that he was enriched when the house was constructed in August 1994 and that therefore, section 6 of the Prescription and Limitation (Scotland) Act 1973 applied to this situation, meaning that as five years had passed since the obligation on which the pursuer founded came into existence, that obligation had been extinguished. The defender therefore submitted that any claim for recompense that the pursuer once had, was now prescribed.

The Lord Ordinary agreed with the submissions of the defender, noting that the defender was enriched as soon as the construction of the house was completed. Decree of absolvitor granted.