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.

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.

Sheriff Court case considering use of a common drying green on which Mr and Mrs Duncan erected a fence and created an area for exercising and toileting their dogs. The sheriff had little difficulty in coming to the view that that was an extraordinary and unacceptable use of common property and granted orders requiring the Duncans to remove the fence and also interdicting them from allowing their dogs to exercise, defecate or urinate on the drying green.

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.

The relief which was announced in the 2011 Budget applies to transactions involving the acquisition of more than one dwelling.

The draft guidance note is available from HMRC’s website here.

Some draft worked examples demonstrating the operation of the relief are available here.

Case considering a landlord’s right to terminate a lease for breach of the maintenance obligations under the lease. Crieff Highland Gathering are the landlords and Perth Council, the tenants of an area of ground known as Market Park in Crieff. The subjects are used by the Council as a pubic park and sub-let back to Crieff Highland every year for the holding of the Crieff Highland Gathering. The lease is for 60 years and began in 1983. The rent is £100 per year and was not subject to review (although it appears that the rent was never demanded or paid). Importantly, the lease contained no irritancy clause.

Background

The Council wished to retain the park as public open space. However, Crieff Highland wanted to sell the park for development as a site for a Sainsbury’s supermarket. They had entered option agreements with developers which would allow for the sale of the park and development of an improved sports ground at an alternative site. They had also been granted outline planning permission for the two developments.

Crieff Highland had also been dissatisfied and frustrated by what they considered to be slow and inadequate maintenance of the park particularly in relation to the boundary walls. In November 2007 (when it became clear that the Council was unwilling to relinquish the tenancy of the park) Crieff Highland served a notice on the Council intimating “numerous wants of repair within the subjects which fall within the tenant’s responsibility in terms of the lease” and an Interim Schedule of Dilapidations. The notice purported to require that the wants of repair be remedied within 3 calendar months and warned that if the Council failed to comply the lease might be terminated.

The Council did not carry out the repairs which it did not consider to be urgent. On 22 January 2009 Crieff Highland served a further notice on the Council purporting to terminate the lease on the basis of the Council’s breaches of the lease.  The Council then arranged an independent inspection of the premises and carried out repairs between July and September 2009. Crieff Highland was not satisfied with this and began court proceedings against the Council.

The issues

The main legal issues for the court were as follows:

1. Was the Council in breach of its obligations as tenant under the lease?
2. Was Crieff Highland entitled to terminate the lease?

The decision

Lord Pentland found that the Council was in breach of its obligations under the lease but concluded that the breaches were not material and therefore Crieff Highland were not entitled to terminate the lease.

Breach of the obligations
There was debate as to whether the tenant’s obligations under the lease extended to extraordinary repairs as well as ordinary repairs. The relevant clause said:

“The Tenants shall, during the currency of this lease, relieve the Landlords of their whole responsibility for the maintenance of the boundary fences, walls and others enclosing the ground leased.”

The Council argued that use of the word “maintenance” meant something other than extraordinary repairs. However, Lord Pentland rejected those arguments taking the view that, when read in the context of the lease as a whole, the clause was referring to the liability which would otherwise be incumbent on the landlord for maintaining the boundaries and that would include liability for carrying out extraordinary repairs. On the evidence, the Council had breached its repairing obligations under the lease.

Materiality of the breach
With regard to the materiality of the breaches, Lord Pentland noted that it was primarily a question of fact and degree. In coming to the conclusion that the various breaches were not material Lord Pentland took account of the following:

1. The fact that both parties were able to make full and uninterrupted use of the park which did not have to be closed to the public as a result of the condition of the property.
2. The shortcomings were not of such fundamental gravity to touch on the very existence of the contract. There was no evidence that Crieff Highland considered carrying out the works themselves with a view to recovering the costs from the Council or of taking an action for specific implement to force the Council to carry out the works nor even did Crieff Highland take steps to call a formal meeting (which it could have done under a procedure contained in the lease).
3. The lease was a long one with over 30 years left to run.  The tenant had carried out repairs, had co-operated well with Crieff Highland in preparing for the Highland Gathering in 2010 and had expressed its intention to continue to run the park as a public facility and fulfil its obligations under the lease. (Indications of the Council’s future intentions are of importance because the courts have traditionally been reluctant to allow a rural lease without an irritancy clause to be brought to an end in circumstances where the tenant has made it clear that it intends to perform its side of the contract during the remaining period of the lease- see below.)
4. Taking a step back from the detailed evidence and trying to take a “realistic” view of matters, Lord Pentland’s impression was that the problems were not particularly serious in the overall scheme of things. He took into account that the cost of the repairs amounted to just over £9,000 and that the overall condition of the subjects seemed to be adequate for them to be used without significant difficulty (he was not persuaded that the deficiencies detracted in any substantial sense from the value and utility of the subjects.)

The following issues were also considered:

The relevance of the Council’s willingness to perform in the future

Lord Pentland contrasted the right to rescind for material breach with the right to irritate. Whereas the right to irritate applies to a right to terminate for a past breach (and derives from the lease or by law for failure to pay rent), the right to rescind applies to a right to terminate for a refusal by the tenant to perform in the future (and derives from the common law).

The landlord can only rescind for material breach when the following conditions are satisfied:

1. The tenant has committed a material breach;
2. The landlord has given fair and reasonable opportunity to fulfil the obligations; and
3. The tenant has indicated that it will not perform in the future.

It had been established that Crieff Highland had failed on a) and c). However Lord Penrose also went on to consider whether Crieff Highland had given fair and reasonable opportunity to fulfil the obligations.

The adequacy of the termination procedure adopted by Crieff Highland

Lord Pentland said that the notice must give both reasonable notice of the grounds for the termination and also an adequate opportunity to put it right. The notice given by Crieff Highland was deemed to have given reasonable notice of the grounds but Lord Pentland found that the 3 month period was not sufficient. In that time the Council had to carry out an inspection, take legal advice, consult Historic Scotland, identify a contractor (who would have to inspect and prepare a programme of works. Evidence was heard to the effect that the works could not be done in the 3 months following the notice due to difficulties in repairing lime mortar in the winter.

Would a fair and reasonable landlord have terminated the lease in the circumstances?

If Crieff Highland had been in material breach the next question would have been whether a fair and reasonable landlord would have terminated the lease. This requirement arises from s 5(1) (b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. Although he did not require to decide on it, Lord Pentland found that in this case a fair and reasonable landlord would not have terminated the lease because:

1. The ultimatum of 3 months was too short
2. The repairs were not sufficiently serious to justify termination (especially in view of the 30 year term)
3. A fair and reasonable landlord will not opt for termination where there are other remedies available which would not deprive the tenant of its interest but nevertheless adequately protect the landlord’s interest. In this case Crieff Highland could have considered carrying out the works themselves and recovering the expenses from the Council or it could have followed a formal meeting procedure provided for in the lease.

Looking at the circumstances as a whole Lord Pentland found that it was reasonable to infer that Crieff Highland’s reason for terminating the lease was that it wanted to proceed with the arrangements it had entered with Sainsbury’s rather than having a pressing concern over the condition of the property.

The full judgement is available here.

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

Case considering a tenant’s liability for extraordinary repairs under a lease. Co-operative Insurance were the landlords and Fife Council were the tenants under a 25 year lease of the Unicorn house at the Kingdom Centre in Glenrothes. The Co-op claimed that the Council had breached their repairing obligations under the lease and sought damages of more than £1.3m. The matter for the court to decide was the relevancy of the Council’s argument that they were not liable for “extraordinary repairs” under the lease

The repairing clause contained the following:

“At their own cost and expense to repair and keep in good and substantial repair and maintained, renewed and cleansedin every respect all to the satisfaction of the Landlords the leased subjects”

The Co-op accepted that at common law a tenant is only liable for “ordinary repairs” and the responsibility for “extraordinary repairs” (such as the rebuilding or renewal of the subjects and making them wind and watertight) is normally that of the landlord. To make it the responsibility of the tenant would require clear stipulation or necessary inference. However, they argued that in this case the lease did make it clear that the tenant was liable for extraordinary repairs. The Co-op relied on the extent of the subjects included in the lease (which comprised the whole of the external walls and roof) and the fact that the repairing clause included an obligation to “renew” as well as to “repair”.

On the other hand, the Council contended that many of the repairs identified by the Co-op arose as a result of the impending expiry of lifespan of component parts of the property and both parties would have been aware that the lifespan of the parts in question was not much greater than the length of the lease. If it had been intended that the Council were to replace all such parts at the end of the lease it would have been made unambiguously clear.

Lord Glennie was not persuaded that the lease imposed liability on the tenants for extraordinary repairs. Indeed the clause did not go beyond the common law position. To argue that use of the word “renewed” meant that the tenants had assumed responsibility for “extraordinary repairs” put too much emphasis on the word renewed. As part of an obligation to repair the tenant may be obliged to renew certain elements in the structure but that is part of the repairing obligation.

If the Co-op’s arguments had been correct the lease would also have obliged the Council to give the property back at the end of the lease in as good condition as it had been 25 years earlier. They would have been obliged to renew parts even though they were not in need of repair. Whilst Lord Glennie agreed that it was possible to impose such an obligation, the intention would have to be made clear.

Although there were provisions in the lease which appeared to place responsibility on the tenants for structure that did not alter Lord Glennie’s opinion that the lease did not make the tenant liable for “extraordinary repairs”.

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.

Case considering duties owed by the parties to a joint venture to each other. Thomas Barr entered into a joint venture with Hawkhill to purchase and resell Omne House (an office building at Riverside Park in Irvine). Hawkhill, which was controlled by a Mr Gilchrist, sold Omne house to Fearann of which Mr Gilchrist was a director along with his wife (who also owned all of the shares).  Fearann was not a party to the joint venture.

In response to Mr Barr’s claims for payment of half of the sale proceeds, Mr Gilchrist argued that Hawkhill had various outstanding claims for payment in respect of other developments (which were the subject of separate court proceedings) and the property had been transferred in an attempt to improve its position in respect of these outstanding claims.

In granting summary decree (for payment of half of the sale proceeds), Lord Hodge found that Hawkhill had acted in breach of trust. He confirmed that a joint venture is a species of partnership and that the sale of the property to Fearann in order to improve its position in relation to the other outstanding claims amounted to a breach of fiduciary duty.

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.

Complicated case in which the Liquidator of the Letham Grange Development Company sought reduction of a security over the Letham Grange resort near Arbroath. The case involves a number of companies all controlled by a Mr Liu and his family.

The grounds for challenge

The Liquidator argued that the holder of the security (Foxworth) had (1) not acquired the rights under the security in good faith and for value and (2) the security was void as it was not in the correct form.

Good faith and value

Prior to this case the Liquidator had challenged a disposition by Letham Grange in favour of Nova Scotia Limited on the basis that it was a gratuitous alienation, an unfair preference (both in terms of the Insolvency Act 1976) and a fraudulent preference at common law.  The subjects which had been purchased by Letham Grange for £2,105,000 were sold to Nova Scotia for only £248,100. The Liquidator had previously obtained a decree reducing the disposition (effectively by default when Nova Scotia failed to appear at a proof).

However, in the present proceedings Mr Liu argued that the price contained in the disposition was not the full consideration for the subjects as the price had been reduced to take account of loans which Mr Liu and his family had made to Letham Grange in order to finance the purchase. Foxworth then assumed liability to repay the loans to the family and Nova Scotia granted the standard security over the property in favour of Foxworth.

After consideration of the evidence and an assessment of the credibility of the witnesses, Lord Glennie found that the sale had been for adequate consideration and there had not been a gratuitous alienation. There had been loans by the family in favour of Letham to finance the original purchase and, although Foxworth had imputed knowledge of the facts pertaining to the sale to Nova Scotia (through Mr Liu who was in control of both companies), it did not have knowledge of any fact rendering the grant of the standard security by Nova Scotia a breach of an obligation on it affecting the property.

Form of the Security

The Liquidator argued that the security, which had been drafted by Mr Liu himself, was not valid pointing to the fact that although the deed referred to a separate personal bond (per a Form B security under the Conveyancing and Feudal Reform (Scotland) Act 1970) it failed to specify the date of the personal bond and did not include anything allowing the personal bond to be identified. Also, although the deed contained the rate of interest to be applied (per a Form A security under the 1970 Act), the personal bond did not.

However, Lord Glennie agreed with the argument that it was acceptable to rely on extraneous evidence to identify the personal bond approving the arguments put on behalf of Mr Liu to the effect that, although a standard security must comply with one of the statutory forms contained in the 1970 Act, it is sufficient compliance that the deed complies “as closely as may be” and some latitude may be allowed.

Lord Glennie noted that in effect the security had been a hybrid between Form A and Form B but found there was no difficulty in a security granted in hybrid form.

The full judgement is available from Scottish Courts here.

(See Inner House decision here and appeal to the Supreme court here).

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

Appeal by Hallam against the adoption of the Edinburgh City Local Plan. Hallam argued that the Council had rejected reporters’ recommendations as to sites at Newcraighall North and Newcraighall East without giving adequate reasons for doing so. The Council’s development company EDI was involved in both developments and the reporters had recommended reducing the number of housing units allocated to each site. To make up the structure plan’s requirement for additional housing in the urban fringe, the reporters recommended increasing the number of units at two other sites (one of which was owned by Hallam).

Lord Malcolm allowed the appeal and granted an order quashing the Edinburgh City Local Plan in so far as it includes the allocation of housing units at both Newcraighall North and Newcraighall East. In coming to this decision Lord Malcolm referred to the decision in Oxford Diocesan Board of Finance v West Oxfordshire District Council and another (1998):

“Even in cases involving planning judgement, the planning authority must give adequate and intelligible reasons for its decision. It must be apparent that the authority fully and
properly considered the substantial points raised by the reporters. It must deal with the matters relevant to the merits of the decision and give sufficient reasons for departing from the reporters’ conclusions. The obligation to deal with the matter thoroughly, conscientiously, and fairly is enhanced when (as here) the council is both a promoter of a site and the ultimate decision-maker. It would not be sufficient for a planning authority merely to recite a series of assertions. While what is needed will vary from case to case and depend on the context and precise circumstances, fair and specific consideration of the report is required.”

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.

The Private Rented Housing (Scotland) Act 2011which contains provisions relating to the registration of private landlords and regulation of Houses in Multiple Occupation was given Royal Assent on 20th April.  The main provisions will come into force then the Scottish Ministers appoint a date by order.