(First) Ewen John Macpherson and (Second) Lorraine Mary Anne Macaulay v (First)  Richard Colin Macqueen, (Second) Michael Iain Macqueen And (Third) Yvonne Janette Macqueen, 7 August 2015   -enforceability of contractual obligations contained in missives after the missives ceased to be enforceable

Inner House case considering the enforceability of contractual obligations contained in missives after the missives ceased to be enforceable.

Background
Mr McPherson and Ms Macaulay (the pursuers) sold a house and garden ground in North Connel to the Macqueens (the defenders) whilst retaining some adjacent land on which they intended to build two semi-detached houses. The missives contained conditions obliging the defenders (who also owed an adjacent property) to convey a strip of land to the sellers and also to grant a servitude right of access over an additional strip of land. The missives incorporated the Combined Standard Clauses (2009 edition) which include a clause providing that the missives will cease to be enforceable after 2 years.

Arguments
The pursuers sought an order for specific implement in order to compel the defenders to convey the strip of land and grant the servitude. The action was raised outwith the 2 year period and the defenders argued that it was time barred (as the obligations were either part of the missives or collateral to them and consequently ceased to be enforceable when the missives ceased to be enforceable). That argument was rejected in the sheriff court; the sheriff taking the view that the obligations to convey the strip and grant the servitude formed a separate contract to the sale of the house and garden (albeit recorded in the same document).

Decision
However, the Inner House allowed an appeal of the sheriff’s decision. The court agreed with the defender’s contention that the obligations to convey the strip of land and grant the servitude formed part of the overall consideration (in addition to the purchase price of £245k) and, as such, were an intrinsic part of the contract for the sale of the property and became time barred when the missives ceased to be enforceable.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

 

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LKS Style Bank – corporate styles

The LKS style bank now has a corporate section which includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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New styles

The latest additions to the LKS style bank are:

1.3.4.3​ -​ Offer by landlord take renunciation of lease from tenant and grant new lease to tenant​​
1.3.3.2​ – Offer by assignee to take assignation of lease from assignor​.​

These are available to our subscribers here and for individual purchase here .

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LKS Style Bank – new corporate styles added

We have added a new corporate section to our styles bank. The section includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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Additions to the LKS style bank

The following property styles have now been added to the LKS style Bank:

  • 1.3.2.3 Offer by tenant to take lease of commercial property with tenant’s fitting out works
  • 3.3.7 Licence for tenant works – standard version
  • 3.3.8 Licence for tenant works – simplified version
  • 1.3.5.2 Offer By Sub-tenant To Take Sub-lease Of Whole Commercial Premises From Mid-landlord.

These are available to our subscribers here. (Contact  andy@legalknowledgescotland.com to receive a subscription quotation.)

And for individual purchase here.

You can see a complete list of all property styles currently available here.

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LKS Style updates -LBTT and CDM Regs

All relevant LKS property styles have been updated to take account of Land and Buildings Transaction Tax (which came into force on 1 April) and the  Construction (Design and Management) Regulations 2015 (which come into force on 6 April).

These are available to our subscribers here. (Contact  andy@legalknowledgescotland.com to receive a subscription quotation.)

And for individual purchase here.

 

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‘Private Client Scotland’ preview edition published

So why Private Client Scotland and why now?

Private Client Scotland is something that I have been meaning to get round to over the last few years and now finally have the time to do so. It is also a publication that I believe is needed. A publication that aims to bring together all aspects of private client work from a Scottish perspective.

What does Private Client Scotland aim to cover?

Private Client Scotland will review the latest cases, provide updates on the latest consultations, legislation and official publications and also includes articles, editorials and news items.

What is included in the Preview edition?

The Preview edition of Private Client Scotland includes an editorial which argues for the devolving of control of inheritance tax to the Scottish Parliament. There is also an article on the continuing fall-out from Sheriff Baird’s decision on the validity or otherwise of certain Powers of Attorney.  Included in ‘Case reviews’ is the Judgement by Sheriff Valerie Johnston in the long-running dispute as to where Private Mark Connolly is buried. ‘Professional updates’ include a link to the Scottish Law Commission’s report proposing major reform to our law of trusts.  Lastly the ‘News items’ section includes stories that range from a dispute over a new crematoria in the Scottish Borders to how Delaware proposes to deal with digital assets on death.

The ‘preview edition’ of Private Client Scotland can be found here.

If you are interested in subscribing to ‘Private Client Scotland’ please email me at: james@legalknowledgescotland.com

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Smyth v Rafferty & Others [2014] CSOH 150 – Court of Session upholds Will despite challenge

The Court of Session has upheld a Will made shortly before the testatrix’s her death in which she left £3m to re-finance her failing newspaper business.  

The will was challenged by the testatrix’s sister on the grounds of: “(i) lack of testamentary capacity, (ii) undue influence and/or (iii) facility and circumvention.  Put short, she contends that, by the time she came to make the codicil and the new will, Deirdre was so frail mentally, as a result of the pain she was suffering, that she was incapable of understanding what she was doing; or, even if capable of understanding, was in no state to resist the undue influence of those in whom she trusted or the pressure to which she was subjected.”

The full case report can be found here.

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(1) Highland Council v. Scottish Ministers and Combined Power and Heat (Highlands) Limited and (2) Ross Estates Company v. Scottish Ministers and Combined Power and Heat (Highlands) Limited, 28 August 2014 – invalid condition attached to planning permission

Inner House case considering a planning appeal in respect of an application for the development of a waste to energy combined heat and power plant in Invergordon.

The Reporter determining the appeal had granted permission subject to a number of conditions, one of which permitted the power plant to accept a maximum of 100,000 tonnes per annum of waste originating from within the Highland Council area.  However, the condition also stated that a proportion of the waste could originate beyond the Highland Council area.

The Inner House found that the condition was invalid as the reference to the waste from outwith the Highland Council area meant that the permission granted went beyond that which had been applied for (the application had provided for incineration of Highland waste only) and thus beyond what had been considered at the planning inquiry. The developer’s Environmental Impact Assessment had also been drawn up on the understanding that only Highland waste was to be treated at the plant. All of this meant that the planning authority (Highland Council) and the Ross Estates (objectors) had been disadvantaged and their appeal on that basis was held to be well founded.

The court found that the invalid condition was not severable from the rest of the planning decision (on the basis that the planning permission may not have been granted at all if it had been appreciated that the condition was invalid) and so it was not possible to quash only that condition. However, whilst the planning inquiry required to be re-opened, it was unnecessary to rehear the entire case and the inquiry would only have to deal with the invalid condition. If the reporter considered that the condition was essential to the grant of permission he would have to hear evidence and submissions from all of the parties on its merits. If the reporter were to consider the condition, as drafted, not to be essential to the permission, then it was open to him to substitute an amended condition.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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Merry Christmas and best wishes for 2014 from Legal Knowledge Scotland

Merry Christmas from Legal Knowledge Scotland.

Thank you for all your support during our third year and best wishes for 2014.

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