Hazel Fraser v. Ian James Fraser, 18 November 2014 – Right to division and sale of common property where agreement exists between parties as to how property is to be divided or sold
Sheriff Court case concerning common property owned by a husband and wife.
The parties had entered a minute of agreement which provided that:
- part of the subjects be sold and the proceeds divided between the parties subject to a deduction of £4k from Mr Fraser’s share which would be paid to Mrs Fraser; and
- Mr and Mrs Fraser would seek to obtain planning permission for development of the remainder of the property before selling it with the proceeds being divided equally.
Mrs Fraser sought declarator that she was entitled to insist on an action of sale of the first part of property and payment of £4K to her from Mr Fraser (per the minute of agreement) and that she was also entitled to insist on an action of division of the remainder of the property (contrary to the minute of agreement).
Mrs Fraser argued that the right to division (or division and sale) of the property could be taken as of right. Thus, with respect to the payment of £4k, she was not arguing for enforcement of the minute of agreement but rather, (as Mr Fraser indicated) appears to have been arguing that payment was an aspect of the division and sale.
Mr Fraser argued that, where the parties have contracted as to how a property is to be divided or sold, it is not open to them to insist on an action of division and sale.
After considering the authorities, the sheriff dismissed Mrs Fraser’s action:
“Far from excluding the right to have the bonds of common ownership broken the minute of agreement provides the method by which that will be achieved. But, by contracting in this way the parties have ousted the jurisdiction of the court to order division or sale and division. Whilst the contract remains in force neither party is entitled to resort to the court.”
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.
 However, note comments in the next paragraph.
 When dealing with common property, parties have an absolute right to insist on an action for division and sale: see, for example, Gordon Collins v. Carol Anne Sweeney, 13 March 2014
 Grant v The Governors of George Heriot’s Trust and Others 1906 13 S.L.T. 986, Morrison v Kirk 1911 (2) S.L.T. 355 and Upper Crathes Fishings Limited v Bailey’s Executors 1991 S.L.T. 747.