Bank of Ireland (UK) PLC v Knight Frank LLP, 20 November 2015 – Bank’s acceptance of standard terms in surveyor’s valuation report

Outer House case considering a contract between the Bank of Ireland and Knight Frank relating to a valuation which Knight Frank provided to the Bank in respect of a client’s property over which the Bank received a standard security.

The Bank claimed that it had suffered substantial loss as a result of the valuation and sought damages for negligence from Knight Frank. However, Knight Frank’s standard terms provided that any contract to provide a survey report was subject to English law and that the English courts would have exclusive jurisdiction in respect of any dispute arising from it. The issue for the court was whether the standard terms formed part of the contract and, consequently, whether the court had jurisdiction to hear the case.

Knight Frank had provided a valuation for the Bank’s client in relation to the property (near Kilmacolm) which was to be the subject of a development. The Bank instructed its own valuation of the property from Knight Frank (by letter dated 2 May). This was provided and included Knight Frank’s standard terms. However, in a departure from its normal practice, Knight Frank had not sought to ask the Bank in advance for written confirmation that the standard terms formed part of the contract. Following receipt of the valuation, the Bank advanced a loan of £2.35m to the client in return for a standard security.

The parties were agreed that the Bank’s letter of instruction constituted an offer that the offer had been accepted by conduct. The Bank argued that the offer was accepted by Knight Frank when it delivered the valuation report to the bank. The contract was accepted at the moment the report went through the bank’s letterbox at which point it was too late to introduce new terms (the bank argued that it would have been odd if the fulfilment of the contract –i.e. providing the valuation- were to be treated as a counter offer.)

On the other hand, Knight Frank argued that the delivery of the valuation report along with the standard terms constituted a counter offer which the bank had accepted when it relied on the report to grant the loan.

Lord Woolman preferred Knight Frank’s argument noting that it had been open to the bank to raise an issue with Knight Frank regarding the standard terms and it had not one so. It was irrelevant that the officer of the bank dealing with the transaction had not read the standard terms. The Bank could not “cherry pick” the document: i.e. it could not accept the valuation without also accepting the standard terms attached. In coming to his conclusion, Lord Woolman also took account of the facts that it had not been surprising to the bank’s employees (giving evidence in the case) that surveyors would seek to introduce their own standard terms into the valuation agreement and that the terms introduced were not unusual.

As such, Lord Woolman found that the court did not have jurisdiction to hear the dispute.

The full judgement is available from Scottish Courts here.

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PIP 3 Limited v Glasgow City Council, 1 September 2015 –interpretation of option agreement

Outer House case concerning an Option Agreement relating to a 4.6 acre Brownfield site near the Commonwealth Games Athletes Village in Glasgow which was owned by Glasgow City Council.

PIP 3 wanted to construct a hotel and car park on the site and, between 2006 and 2011, instructed various investigations to be carried (which showed that the site was relatively free from hazardous waste) However, following receipt of a survey from the Council, PIP 3 discovered that a large quantity of extra earth had been deposited on the site which the Council then confirmed was spoil derived from the construction of the nearby Commonwealth Games facilities.

The parties entered an option agreement in late 2011 (schedule 1 of the agreement was termed “the Missives”). Amongst other things, the agreement provided for payment of an initial purchase price by PIP 3 (at settlement –which was 15 working days after PIP 3 exercised the option to purchase the property) and for the Council to instruct a remediation consultant to prepare a Site Waste Management Plan and a Materials Management Plan (as soon as reasonably practicable after execution of the option agreement). The Council were also to procure that the contractors and the remediation consultant were to provide collateral warranties to PIP 3.

The settlement date was 11 April 2013. PIP 3 asked for copies of the Site Waste Management Plan and a Materials Management Plan in February 2013 and, whilst the Council said it was obtaining the documents, it said that there was no obligation on them to deliver them at settlement. PIP 3 did not pay the initial purchase price at settlement. The Council delivered the copy documents to PIP 3 on 5 June 2013. However, PIP 3 still did not pay and the Council rescinded the Agreement on 4 July 2013.

PIP 3 raised an action for breach of contract on the basis that the Council had failed to provide (a) the Waste Management Plan and the Materials Management Plan and (b) the collateral warranties. PIP 3 sought damages of over £15m equating to an estimate of its lost profit if the development had gone ahead. Alternatively, PIP 3 sought abortive costs on the basis that the Council had (i) breached its obligations of good faith and (ii) negligently misrepresented the position by failing to disclose the deposit of hazardous waste.

Lord Woolman dismissed PIP 3’s claim for breach of contract. In the first place, it was found that, in terms of the wording of the relevant clause in the agreement, there was a duty to instruct the Waste Management Plan and a Materials Management Plan but not to deliver them on or prior to settlement. (In coming to that conclusion Lord Woolman also observed that there were only three working weeks between exercising of the option and settlement and it might have been difficult for the Council to obtain the documents in that period.)

Secondly, Lord Woolman referred to the missives. Clause 1.7 provided that Council was not entitled to rescind:  “for any period of time during which the delay in payment by PIP 3 is due to any failure or breach by or on behalf of the Council to implement its obligations or duties under the Missives on time”. Lord Woolman noted that, unlike clause 1.3 which provided that the Council was entitled to rescind both the missives and the option agreement if PIP3 failed to pay the initial purchase price, clause 1.7 referred only to the missives. As such, the limitation of the Council’s right to rescind contained in clause 1.7 applied only in respect of obligations contained in the missives (but not the option agreement). The obligation relating to the Waste Management and Materials Management Plans was contained in the option agreement but not the missives meaning PIP 3 could not withhold payment on the basis non-compliance with the obligation without giving the Council a right to rescind.

Thirdly, PIP 3 had also claimed that they were entitled to withhold payment on the basis that the missives required the Council to deliver certain documents including the collateral warranties at settlement. However, Lord Woolman found that, having regard to the wording of the agreement, payment of the initial purchase price was the hinge of the transaction and, until payment occurred, the Council had no obligation to deliver the collateral warranties (and other settlement documents).

Lord Woolman also held that, in the circumstances[1], the case was not one in which PIP 3 could argue alternative and inconsistent grounds of action. (I.e., on one hand, make a claim for damages equivalent to PIP 3’s lost profit on the basis that the development would have gone ahead were it not for the Council’s actions but, on the other hand, claim for abortive costs on the basis that PIP 3 would not have gone ahead with the transaction if it had known about the hazardous waste.) Lord Woolman took the view that PIP 3 must have known whether it would have exercised the option and developed the subjects and agreed with the Council that the whole thrust of the PIP 3’s arguments indicated that the transaction would not have gone ahead. As such, PIP 3 could only claim for abortive costs and not for damages amounting to lost profit.

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.


[1] Lord Woolman took the view that this was an extreme type of case in which the court had to exercise supervision referring to Maclaren Court of Session Practice page 311 and Smart v Bargh 1949 SC 57.

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Kennedy and others for suspension and interdict, 21 July 2015 – interpretation of a minute of agreement relating to devlopment

Outer House case concerning the interpretation of a minute of agreement in respect of professional fees relating to a planned development.

Mr Kennedy and others (the trustees) were the owners of a 6.293 acre site in Ayr which they agreed to sell to a house builder (DMH). The missives of sale included a term which allowed DMH to resile from the bargain on the payment of an “abort fee”. DMH paid the fee and resiled. The parties then entered a minute of agreement which provided for the trustees to reimburse DMH for professional fees of just over £165k in certain circumstances if the trustees agreed to sell the site to a third party.

When the trustees agreed to sell the site to Miller Homes, DMH served charges on the trustees for payment of the professional fees.  The trustees denied liability to pay and sought suspension of the charges. The question for the court was whether, in terms of the minute of agreement, there was a liability to pay the fees in the situation where DMH had not obtained planning consent for the development.

On the interpretation of the contract, Lady Stacy said:

“I accept the submissions made by both counsel to the effect that the task of the court is to consider what the reasonable person, armed with the information that the parties reasonably had at the time of entering into the contract, would consider was meant by the words of the contract.  I accept that the construction should, if there is a choice, favour a commercially sensible outcome.  I am bound by the case of Grove Investments to proceed in that fashion. The words of the contract are to be read as a whole, and if possible meaning given to all of them.  I am not concerned to find out what the parties intended to agree, but rather what in the context of the facts agreed or proved, their words show that they did agree. I have reached my view by considering all of the circumstances known to both parties. I have not relied on internal communications known to only one of them.”

 On that basis, and after noting that the minute of agreement was not easy to construe, Lady Stacy accepted DMH’s arguments to the effect that the trustees were liable to pay the fees even where planning permission was not obtained and refused the trustees’ petition.  In coming to that conclusion Lady Stacey found that, although the trustees commercial intention had been hard to ascertain, they had entered the agreement and agreed to make the payment because they wished to encourage  DMH to proceed with their planning application during the period when the trustees were looking for a third party to purchase the site. If, however, the intention had been that the payment would only be made if DMH were successful in obtaining planning permission, it would not have been drafted in the way it had been drafted.  It would not have been difficult to draft an agreement which stated plainly that payment was dependent on DMH obtaining planning permission and the minute of agreement did not do so.

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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Execution in counterpart – Legal Writings (Counterparts and Delivery) (Scotland) Act 2015

The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 came into force on 1 July 2015.

It does two things:

  •  It makes provision to the effect that documents signed in counterpart are legally effective under Scots law
  •  It permits delivery of ‘traditional’ or paper documents by electronic means.

Execution in counterpart
Execution in counterpart refers to the practice (frequently used in England) whereby each of the parties to a document executes a separate physical copy of the document before the documents are exchanged so that each party holds a copy of the documents signed by the other parties.

It can be done where the parties are in different places and signing at different times. As such, it avoids problems of time and cost that can arise if all of the parties have to get together for a signing meeting or wait for a single document to be circulated around each of the parties one-at-a-time for execution.

There was a great deal of confusion as to whether executing documents in counterpart was competent in Scots law prior to the 2015 Act and the situation was so uncertain that it was common practice for parties to contracts in Scotland to agree to contract under English law in order to allow the use of counterpart signing. The 2015 Act removes that uncertainty and confirms the validity of the practice.

Delivery of traditional documents by electronic means
Under Scots law, contractual documents which have not been signed by all of the parties to the contract require delivery (i.e. to be given to the other parties to the contract) to be effective. The theory is that, until the document has been delivered to the other party, it is open to the party granting the obligations to change their mind and destroy or change the principal document but, once the document has been delivered to the other party, it is out of the control of the party granting the obligations and the contract becomes effective.

It is of course common for contracts to be negotiated by email or fax with the relevant documents attached. However, there is case law which suggests that sending a document as an attachment to an email or fax is not sufficient to amount to delivery. The reason for this is that faxed or e-mailed documents are merely copies of the principals meaning that, until the original document is delivered, a party could still change its mind and destroy the original.

The 2015 Act changes that and provides that traditional or paper documents can be delivered electronically meaning that the document will now become effective on the sending of the email (or fax) to which it is attached (unless the document provides otherwise).  It is worth noting that the original documents can still require to be sent to the other party, in addition to electronic delivery, where self-proving status is required or where the principal documents are required for another purpose (for example, registration).

The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 is available here.

The explanatory notes can be seen here.

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Fordell Estates Limited v Deloitte LLP, 21 March 2014 – whether binding agreement reached between surveyors as to dilapidations claim

Outer House case in which Fordell sought £338k from Deloitte it said was due under an alleged agreement relating to a dilapidations claim in respect of a lease of property at 18 Charlotte Square and 4 Charlotte Lane in Edinburgh.

The lease came to an end in March 2012 and before that a schedule of dilapidations was served. A dispute then took place as to the scope and cost of the remedial works required following which surveyors liaised on behalf of each of the parties with a view to reaching a negotiated agreement.

Fordell argued that a binding agreement had been reached between the parties that Deloitte would pay £338k in full and final settlement of the claim. Deloitte argued that there had been no concluded contract because:

  1.     the communications did not record an intention to be bound by the exchange of emails;
  2.     there was no evidence that Fordell would use the money for the dilapidations works;
  3.     the phrase “without prejudice” was used in Deloitte’s surveyor’s emails;
  4.     there was a need for a formal legal document; and
  5.     there was no agreement on a date for payment.

After considering the authorities[1] Lord Malcolm found that the proper approach in such cases was well settled:

“In summary, both parties must have manifested an intention to be immediately bound to all the legally essential elements of the bargain. In assessing this, the court adopts an objective approach, based upon what an informed reasonable person would have understood by the words and conduct of the parties or their agents.”

Lord Malcolm held that the negotiations had not resulted in a concluded contract between the parties. One of Deloitte’s emails contained a condition that Fordell would use the money for the dilapidations works which was not withdrawn and remained unmet. An email which Fordell argued had concluded the bargain did not waive or abandon that requirement. Fordell contended Deloitte were not entitled to require such evidence. However, Lord Malcolm took the view that, whatever the law on dilapidations claims, Deloitte were entitled to insist on such evidence as they wished, and to make it a condition for payment.

Lord Malcolm also took the view that the use of the words “without prejudice” and the need for a formal agreement reflected a shared understanding that neither of the surveyors could bind the parties. That was made clear in the correspondence. At each stage, before making a binding offer, or counter offer, the surveyors had required direct instructions from their respective clients and the words “without prejudice” required to be seen in that context[2]. Lord Malcolm described the lack of agreement regarding a date for payment as a “loose end” but saw it as further demonstration that the parties’ minds had not met on the key aspects of the deal.

Fordell’s claim for payment was dismissed.

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.

[1] In particular Baillie Estates Ltd v DuPont (UK) Ltd [2009] CSOH 95.

[2] From the evidence given in court Lord Malcolm also noted that it was clear that Fordell’s surveyor understood that use of the word “without prejudice” would postpone a legally enforceable agreement.

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Forest Bio Products Ltd v Forever Fuels Ltd, 29 October 2013 – construction of asset sale agreement and meaning of unconditional consent

Inner House case concerning the construction of an asset sale agreement.

Forest were tenants under a lease. When Forest went into administration the lease was one of the assets for realisation by the administrators. Forest (through its administrators) signed an asset sale agreement with Forever Fuels which related to the sale of property including the lease. In terms of the agreement, £100k became payable to Forest upon delivery of an assignation of the lease and landlord’s consent to the assignation.

Landlords Consent was defined in the asset sale agreement as follows:

 “’Landlord’s Consent’ means the unconditional written consent of the Landlord (and any other relevant party) to the grant of the Assignation of the Seller’s interest in the lease to the Buyer on terms acceptable to the Buyer acting reasonably;”

When it signed the assignation the landlord wrote to Forest’s solicitors consenting to the assignation “only on the basis that” arrears of rent were paid.

Sheriff court decision
In the sheriff court the sheriff came to the conclusion that the £100k was due. The words “on terms acceptable to the Buyer acting reasonably” were indicative of the only circumstances in which a condition of consent would not be regarded as unconditional (i.e. the consent would only be held to be conditional if the buyer (Forever Fuels) was required to do something which was unacceptable to it).

Sheriff principal and Inner House decisions
The sheriff principal disagreed with that interpretation and found that the parties had intended that (for payment to be triggered) the landlord’s consent would have to be free of any condition. As settlement of the rent arrears was not beyond dispute, the landlord’s consent had been conditional. As such the sum of £100k was not payable. The Inner House agreed with the sheriff principal’s reasoning finding that (despite shortcomings and deficiencies in the drafting elsewhere in the agreement) the definition of the term “Landlord’s Consent” was not ambiguous.

The phrase “on terms acceptable to the Buyer acting reasonably” did not qualify “unconditional written consent” but instead qualified “the Assignation of the Seller’s interest” (i.e. to trigger payment, the terms of the assignation document would have to be acceptable to the hypothetical reasonable buyer.)

 “ is clear that so long as the landlord’s consent is conditional, the buyer’s right to the lease will be incomplete; there will be no consent upon which the buyer can rely in any question with the landlord until the condition is purified. The buyer’s position, in that respect, is the same whether the condition requires action on his part or on that of the seller. It is inconceivable that parties could have intended that the buyer’s position would be protected if the condition was one which he could purify himself but not if it was a condition the purification of which was outwith his power. There is nothing in the agreement which indicates that such absurdity could have been intended. As the March Hare might have observed, “unconditional” simply means what it says.”

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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Mrs Jacqueline Tamar Garvie v. Mrs Sylvia Wallace and David Crossan, 8 October 2013 – Law of the tenement – liability for common repairs and decision making procedure

Sheriff Court case concerning liability for the maintenance of Carbeth House in Killearn. The property comprised 9 flats each of which was subject to a deed of conditions.

A large crack which appeared in the west wall of the property on 16 August 2007 was examined by a building standards surveyor from Stirling Council on 17 August 2007 and found to be dangerous. The surveyor wrote to the owners of the flat requiring a protective fence to be erected around the wall and intimated that a dangerous buildings notice would be served on the owners by the Council. On the recommendation of a civil engineer and, following a majority vote of the proprietors (by email), a protective fence was erected together with scaffolding to support the wall (on 20 August 2007).

The crack in the wall was discussed, and the measures taken, explained at a meeting of the proprietors on 23 August 2007 (convened primarily to discuss another matter) and no objection was raised. A dangerous buildings notice was issued to the proprietors on 24 September 2007. Contractors were asked to tender for the repair works required by the dangerous buildings notice and, in September 2008, the proprietors voted by majority (again by email) to accept one of the tenders.

The proprietors were then asked to contribute money into a repair fund. However, Mrs Wallace and Mr Crossan declined to contribute. After some legal correspondence, solicitors acting for Mrs Wallace and Mr Crossan indicated in a letter (on 29 May 2009) that they would pay their share of the costs of the repairs on receipt of the appropriate engineer’s certificate and were anxious for the work to be carried out and the scaffolding removed.

In June 2009 the repair commenced. The repairs, along with additional works revealed as necessary when the initial work began, were completed on 12 October 2009. Mrs Wallace and Mr Crossan failed to pay their share of the costs and Mrs Garvie was authorised by a majority vote of the other proprietors to recover the sums due from Mrs Wallace and Mr Crossan.

Mrs Wallace and Mr Crossan argued that the sums could only be recovered if the works had been done in terms of the title deeds. In terms of the deed of conditions there had to be a meeting of the proprietors before works could be instructed (and, they argued, no scheme for works had been agreed at the meeting on 23 August 2007).

The sheriff found Mrs Wallace and Mr Crossan were liable to pay their share of the cost of the repairs (£6,483 in the case of Mrs Wallace and £6,858 in the case of Mr Crossan). He concluded that the wording of the deed of conditions was permissive and that the procedure in the deed of conditions was not the only method by which the proprietors could instruct repairs. Against that background the sheriff considered the situation by reference to the common law, consent and the Tenements (Scotland) Act 2004.

Common law
The wall was common property and, in terms of the common law, all of the proprietors were obliged not only to contribute towards the cost of the repairs but to actively ensure that the repairs were carried out. It is also a well known principle of the common law of common property that any one proprietor can instruct common repairs and then look to fellow co-proprietors for a contribution towards the cost. Quite apart from the deed of conditions, the sheriff took the view that all of the repairs were necessary and could be instructed by any of the co-proprietors and that Mrs Wallace and Mr Crossan were obliged to pay a share of the costs.

With regard to consent, Mrs Wallace and Mr Crossan had attended the meeting on 23 August 2007 at which the works and costs had been discussed and made no objection. The letter of 29 May 2009 could be treated as unconditionally binding Mrs Wallace and Mr Crossan to the costs including the increased costs and additional work. Even if not, they had been provided with information at each stage and were to be deemed to be renewing the authority given in the letter by failing to revoke it.

The Tenements Act
Initial scaffolding works
With regard to the Tenements (Scotland) Act 2004, the initial scaffolding work amounted to an emergency repair[1] and, as the deed of conditions did not provide for emergencies, the tenement management scheme contained in the 2004 Act applied. Any owner can instruct emergency repairs and the costs of such work are “scheme costs” (meaning they would be shared[2] amongst the proprietors).

Retention of the scaffolding
As to the retention of scaffolding in place after the meeting on 23rd August 2007, the procedure for making the decision to do so was provided in the deed of condition (i.e. by majority vote at a meeting of the proprietors). In this case the meeting had not been convened in accordance with the deed and there was no vote. However, there had been a meeting at which it was discussed and the proprietors knew the scaffolding would need to remain in place until repairs could be organised. There was no evidence that Mrs Wallace and Mr Crossan had disputed the need to retain the scaffolding and there had been consensus amongst the proprietors at the meeting. As such, the sheriff found that a scheme decision had been made (in terms of the 2004 Act) but that the decision had been reached by an irregular procedure[3]. However, the irregularity did not affect the validity of the decision[4].

Completion of the works
The same analysis applied to the repairs carried out. A vote took place by email after circulation of the projected scheme costs. The majority approved the scheme and, even though Mrs Wallace and Mr Crossan may not have voted in favour of the scheme, they did consent. Again, although this did not follow the procedure contained in the deed of condition, the sheriff found that there had been a valid scheme decision (albeit reached by an irregular procedure).

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.

[1] Rule 7 of the Tenement Management Scheme provides that emergency work includes work which is required to prevent damage or in the interests of health or safety (and the sheriff considered that the erection of the scaffolding satisfied both of those criteria).

[2] In this case the proportions in which the costs were shared were governed by the deed of conditions.

[3] As it had not followed the procedure contained in the deed of conditions.

[4] Rule 6.1 of the Tenement Management Scheme provides that “any procedural irregularity in the making of a scheme decision does not affect the validity of the decision”.

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Bruce & Company v. William and Elizabeth Ferguson, 28 May 2013 – estate agent’s entitlement to fee under sole selling agreement

Sheriff Court case in which commercial estate agents sought payment of fees under a sole selling agreement they entered with Mr and Mrs Ferguson in respect of the sale of licensed premises (known as “the Lounge”) in Bathgate. In terms of the agreement the estate agents were entitled to payment “upon conclusion of a contract for the sale of or other disposal of the business and premises…”.

The estate agents were initially instructed (in October 2010) to sell the premises at offers over £300k with sitting tenants. However no offers were received and the tenant of the downstairs bar area gave up his tenancy. The Fergusons decided to refurbish the whole premises and the tenant of the upstairs music venue (a Mr Ward, who had continued to trade for a short time after the bar stopped trading) relocated to other premises owned by the Fergusons. The premises were then remarketed without a sitting tenant at offers over £200k.

Discussions took place between the Fergusons and the estate agents to the effect that it was preferable to sell the premises with a sitting tenant which led to a belief, on the part of the estate agents, that the Fergusons wished to dispose of the premises by lease rather than sale. A former barman also intimated interest in the premises. The estate agents prepared further sales particulars (which were not approved by the Fergusons) advertising the premises for let.

The estate agents then (in July 2011), in the mistaken belief[1] that the former barman had, or was to, acquire an interest in the premises stopped marketing the property and invoiced the Fergusons for fee of £5k plus VAT. The Fergusons then entered missives for a 5 year lease of the premises with Mr Ward in August 2011.

The sheriff found that the estate agents were not entitled to payment in terms of the sole selling agreement finding that the existence of missives of let between the Fergusons and Mr Ward was not an event which gave rise to the estate agent being entitled to remuneration in terms of the agreement.  In particular the word “disposal” in the agreement related to the disposal of the sellers’ interest in land and that the missives entered into between the Fergusons and Mr Ward did not constitute a disposal of an interest in land nor was it a long lease and therefore did not trigger any entitlement to payment under the contract.

Appealing that decision, the estate agents argued (amongst other things) that the sheriff had been wrong to read the words “interest in land” into the agreement after the word disposal and that the word “disposal” should be given it’s plain and ordinary meaning which was the “rearranging of affairs”. The estate agents also contended that the missives of let were not simply a renewal of the existing lease: the missives referred to both parts of the property (upstairs and downstairs); there was a change in rent and a new date of entry. In coming to his conclusions the sheriff, it was argued, had placed an interpretation on the contract which was contrary to commercial sense or reality.

Those arguments were rejected by the sheriff principal who refused the appeal finding that, against the factual and statutory background[2], the sheriff had not erred in coming to his conclusions. The Sheriff Principal also took the view that the ordinary meaning of the word “disposal” was “alienation” and, with regard to the commercial purpose of the agreement, said the following:

“The suggestion that the commercial purpose of the agreement is to ensure the [the estate agent’s] remuneration in circumstances which include the other party entering into missives of let with the sitting tenant is, in my view, absurd. That contention disregards completely the fact that there are two parties to the contract and in respect that the purpose of the contract is to achieve either a sale of the premises or, as contended for by [the estate agents], a lease of the premises. The commercial reality or purpose of the contract is for both parties to achieve such a result. Without achieving the sellers’ purposes the estate agent will not receive remuneration. The commercial purpose contended for on behalf of [the estate agents] would be to have the other party as a “hostage” for the duration of the contract. It would mean that the seller would be unable to conduct and regulate their business affairs by renewing a lease or renegotiating a lease with an existing trading tenant without triggering liability to pay a fee to the estate agent”.

 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.

[1] The Sheriff Principal noted that it appeared that the estate agents true position was that they thought the Ferguson’s had been going behind their back by entering into a lease with another individual without their knowledge.

[2] Section 2 of the Estate Agents Act defines the “disposing of an interest in land” as (amongst other things) the “transferring or creating in Scotland any estate or interest in land which is capable of being owned or held as a separate interest and to which a title may be recorded in the Register of Sasines” (A lease of 20 years or less cannot be recorded in the register of Sasines.)

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Royal Bank of Scotland plc. v. William Derek Carlyle, 12 September 2013 – whether telephone call constitutes warranty by bank collateral to loan agreements

Inner House case (for appeal to Supreme Court, see here) concerning agreements between RBS and a property developer. In July 2007 the bank and the developer entered written agreements for loans of £845k and £560k in respect of the purchase of  two plots of land at Gleneagles on which the developer was to build two houses.

The repayment date for the loans was in August 2008 and, when the developer failed to repay the loans at that date, the bank sued the developer for recovery of the funds. However, the developer counter claimed arguing that he had only entered into the loan agreements on the basis of assurances given by the Bank that it would make additional funding (of up to £700k) available to fund development on the plot and claimed damages in respect of the bank’s breach of those assurances. The assurances said to have been given by the bank included a telephone call prior to the signing of the agreements in which the developer was told that, in addition to the sums lent to buy the land, the bank would advance further “funding for the development”.

In the Outer House Lord Glennie found that bank had agreed a “collateral warranty” obliging them to lend for the development of the plots. However, the Inner House allowed an appeal finding that the telephone call only amounted to a statement of future intention and that legal obligations would only arise when the parties entered a written contract.

“If the [developer] considered that the [written agreements] did not properly reflect what he understood was to be agreed, or had been agreed orally, then he ought not to have signed the agreements. At all events, whatever the [developer] thought was the position, the informed observer would understand the written agreements to cover all matters agreed to date. It may well be that, at that time, the [bank] fully intended to enter into a further bargain with the [developer] to advance additional funding for the building works. However, they had not done so and did not do so. That may have been contrary to the spirit of the negotiations prior to the signing of the written agreements, but that spirit, or its moral content, cannot be taken as creating a legally binding voluntary obligation.”

The full judgement is available from Scottish Courts here.

(NB: See Supreme Court decision here.)

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

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Hill of Rubislaw (Q Seven) Limited v. Rubislaw Quarry Aberdeen Ltd and others, 6 August 2013 – effect of clause restricting lettable area in new development

Outer House case relating to a development at Rubislaw Quarry in Aberdeen. The developers sought the co-operation of those with interests (proprietors/tenants) in nearby office blocks (who were concerned that the new development would have a detrimental effect on the value of their properties) with respect to[1] access to the development site. An agreement was entered into between the developers and the proprietors/tenants which included a restriction on the office space available for rent within the new development in the following terms:

“The northern quarry proprietors undertake (to the relevant parties) that the maximum net lettable floor area of Office Space which may be provided within the northern quarry subjects at any given time shall not exceed 2,025.29 sq. m. (in total)”.

The court action involved successors to the original parties to the agreement. The developers sought declarator that the clause:

  1. allowed the amount of office space in the development to exceed 2,025.29 sq. m but restricted the space actually available for let to 2,025.29 sq. m (i.e. they argued the figure did not include owner occupied or vacant office space); and
  2. was not a real burden and, as such, bound only the original parties to the agreement and not their successors.

 Lord Malcolm rejected both of those arguments.

Meaning of the clause
After considering the whole terms of the contract “in the light of the general setting and purpose of the agreement”, Lord Malcolm found that the overall intention was to provide for a maximum floor area which was capable of being let for office use. In coming to this conclusion, account was taken of the preamble to the agreement, which required the developer “to accept certain restrictions with regard to office space within any development of the northern quarry subjects…”, and a further clause containing a requirement that developers exhibit floor plans and internal layout, which would have been irrelevant had the only restriction been on letting floor of space with no limit on the amount constructed.

Whether binding on successors
Whether the burden was real (i.e. binding on successors) depended on whether the restriction on office space was:

  1. purely a trading condition, designed solely to protect the personal commercial interests of those  interested in the offices; or
  2. whether it, in addition to any personal benefit, also conveyed a material benefit on the properties themselves.

The proximity of the development to the offices was an important consideration. The existing office blocks and the new development site presented a “distinct neighbourhood”. The proprietors/tenants were seeking protection against reductions in rental values arising from the introduction of additional competition within that neighbourhood. The restriction therefore benefited the offices as commercial properties by protecting their rental value. Also of relevance in coming to the judge’s conclusion that the burden was binding on successors, was the fact that the offices were specifically adapted for office use meaning future owners would be likely to use them for the same purpose and, consequently, the burden on the new development would be reflected in the value of the existing properties.

Title and Interest of the developers
Lord Malcolm also rejected an argument made on behalf of the proprietors/tenants to the effect that the developers did not have title and interest to bring the action as, although they had entered missives for the purchase of the site, they had not yet recorded title to it. The court would refuse to entertain declarators concerning purely academic, speculative or hypothetical issues, or where the pursuer has no practical interest in the outcome. However, in this case the developers had a good reason for discovering the correct legal position at the time they raised the action: they had entered into missives (with a view to developing the site) with the current owners who, as a result, had no interest in the matter.

The full judgement is available from Scottish Courts here.

(See appeal to the Inner House here.)

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


[1] Amongst other things.

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