News archive

“There is a waiting period before your power of attorney (PoA) can be processed and returned to you.

• EPOAR submissions: 15 day waiting period, we are working on PoAs received on 27th May 2014
• Manual submissions: 19 week waiting period, we are working on PoAs received on and around 5th February 2014

If there is a genuine urgency, we will expedite the registration of a PoA ‘on cause shown’. We ask that people respect this service and only use it in cases of true urgency to avoid defeating its purpose.”

More on this can be found here.

Case from the Lands Tribunal for Scotland considering the title to the common parts of a development at Corstorphine Road in Edinburgh.

The case follows on from PMP Plus Ltd v The Keeper of the Registers of Scotland and others[1] and Lundin Homes Ltd v. the Keeper. PMP confirmed that it was not competent to convey the common parts of a development which are described by reference to a future event (e.g. conveying what will be left when the development has been completed). Lundin also made it clear that, for titles registered in the Land Register, there must be a sufficient description[2] of property within the conveyance[3] (whereas for Sasines titles it is competent for the extent of property to be identified by extrinsic evidence).

This case considers whether the owners of houses within the development with titles recorded in the Register of Sasines[4] may have obtained rights in the common parts by prescriptive possession.

The dispositions in favour of the home owners contained the following clause:

 “… (Three) a right in common with the proprietors of all the other dwellinghouses in the development of which the subjects hereby disponed form part to areas of open space amenity ground and/or wooded areas and unallocated parking spaces formed or to be formed in accordance with the requirements of the Local Planning Authority (the exact extent of which areas may not yet have been defined) unless and until said areas and unallocated parking spaces may be formally taken over by the Local Authority …”.

The developer (Miller Homes) received a conveyance of an undeveloped area of ground within the development from a group company and registered a title to it in the Land Register. The Keeper excluded indemnity on the basis that proprietors of the houses who held Sasine titles may have acquired prescriptive rights of common ownership in the area.

Miller argued that, in accordance with the decision in PMP, the house owner’s titles were not habile to found prescription as they were described by reference to an uncertain future event.

The Tribunal found that, whilst it was not possible to found prescription on titles to common areas still to be formed or to be defined[5] at the time the dispositions of the individual plots within the development were granted, the clause also refers to areas which had been formed and defined and it was possible that prescription could run on Sasine titles where the common area had been formed and defined at the time a disposition[6] of the relevant plot was granted.

No individual owner had entered appearance in appeal and the Tribunal decided to re-intimate the appeal to all the individual proprietors in order that they should have an opportunity to enter appearance and attempt to set up a competing title.

The full decision is available from the Lands Tribunal for Scotland here.

A blog on Registers of Scotland’s policy with regard to development common areas is available here.

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

Sheriff Court case considering whether a servitude right of access had been created by prescription. Mr and Mrs Sidebottom sought declarator that they had established a servitude right of access to their property (in Fyvie in Aberdeenshire) across the properties of Mr and Mrs Green and Sir George Forbes-Leith.

Mr and Mrs Green argued that the Sidebottoms had not taken access over the route for the necessary 20 year period and that the use had been infrequent and not of the “right kind”. The Greens contended that the Sidebottoms use of the access had been based on a mistaken belief that their title contained a servitude right of access over the roadway in question. They also argued that use of the access had not been peaceable pointing to a letter written by Mrs Sidebottom which referred to an ongoing dispute over the access and to the fact that the access had been obstructed.

The sheriff found that the decision came down to a question of reliability and credibility and preferred the evidence of the Sidebottoms. Although the access had been obstructed, the sheriff accepted Mrs Sidebottom’s evidence that they had nevertheless continued to use the access and inferred from that and the lack of evidence to the contrary that use of the access was nonetheless peaceable. Even although the Sidebottoms’ use of the access may have been based on a mistaken belief that they had a right to use the access in their title, the sheriff found that Mrs Sidebottom’s letter was further evidence that the Sidebottoms were asserting their right to use the access.

The full judgement is available from Scottish Courts here.

Statement from the Office of the Public Guardian (Scotland).

“30 May 2014

OPG Guidance Note – Powers of Attorney

Your attention is drawn to the Public Guardian’s guidance note in relation to the validity of powers of attorney following the recent judgement by Sheriff Baird.”  The guidance note can be found here.

A statement from the Law Society of Scotland can also be found here.

The Crown Office has used the Proceeds of Crime Act 2002 to confiscate a £2,000 legacy on the grounds that the recipient would have used it for unlawful activity.

More on this from Scottish Legal News can be found here.

Outer House case in concerning the interpretation of the lease of a plot in a chalet park in Lochgoilhead.

Mr and Mrs Ramsay bought a (removable) chalet in the park (for £20.5k) from Drimsynie. As part of the same transaction, the Ramsays entered into a 10 year ground lease of the plot on which the chalet was located. The lease provided that, on expiry of the lease, Drimsynie would have:

 “..the option to acquire the chalet at a price to be agreed, failing agreement at a price to be determined by an arbiter to be appointed in terms of clause FIFTEENTH…or offer to (the Ramsays) a renewal of the lease for a period to be determined by (Drimsynie)….”

When Drimsynie terminated the lease (following a change policy which involved replacing chalets with newer, larger, and more expensive chalets), an arbiter was been appointed to determine the sum to be paid for the chalet and a dispute developed as to how the arbiter should approach the valuation of the chalet. The Ramsays argued that the chalet should be valued on the assumption of a continuing right to occupy it on the plot on which it was located. Alternatively, Drimsynie contended the arbiter should consider only the market value of the chalet itself on the basis it would be removed from the plot.

Lord Malcolm found that his task was to interpret the lease by reference to the understanding of a reasonable person in the position of the parties at the time the lease was entered. It was important to note that the lease was not a stand alone contract and was linked to the associated purchase of the chalet. The effect of the relevant clause was that the Ramsays could remain in occupation of the chalet on the plot in terms of the lease until the chalet was purchased by the Drimsynie. If Drimsynie wanted to put a new chalet on the site and sell it to someone else they would require to purchase the old chalet first. In Lord Malcolm’s view the parties would have understood that Drimsynie was buying out the Ramsays’ right to continue to use the chalet on the plot in terms of the lease. As such, a reasonable person in the position of the parties at the time of the lease would have understood that Drimsynie would purchase the chalet on the same footing as they sold it. He found support for this view from the element of permanence associated with the chalet, noting that:

• the lease described the chalet as having been “erected” on the plot
• although simply resting on its foundations, it was connected to services, including water and drainage
• the chalet had been on the site since about 1967 and was shown on the OS map
• the Ramsays paid council tax in respect of the chalet.

Lord Malcolm therefore held that that the arbiter should value the chalet on the basis that it could be used on the site for so long as it remained habitable.

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.

“New regulations to introduce a charge for single-use carrier bags have been approved by the Scottish parliament.  MSPs at Holyrood backed the plan to charge shoppers a minimum of 5p for bags.  The regulations, which were approved by 100 votes to 12, will bring in mandatory charging for almost all single-use carrier bags from October. Money raised through the introduction of the charge will go to good causes.”

More on this can be found here.  An earlier blog I wrote on this can also be found here.

Inner House case concerning the interpretation of a dilapidations provision contained in a lease of premises at Germiston Industrial Estate in Glasgow.

Surveyors acting for Grove (the landlord) served a schedule of dilapidations on Cape (the tenant). However, the works specified in the schedule had not been carried out by Cape by the expiry of the lease .

The lease provided an obligation on the tenant “to pay to the landlords the total value of the Schedule of Dilapidations [prepared in respect of the tenant’s repairing obligations]”. Grove argued that this obliged Cape to pay the total value as shown in the schedule. On the other hand, Cape argued that they were only obliged to make payment to Grove of the loss actually suffered as a result of the failure to comply with the repairing obligations. Both the sheriff and the sheriff principal agreed with Grove’s arguments and Cape appealed to the Inner House.

Before considering the lease, the court noted that the provisions of a contract must be construed in context and in accordance with the purposes that the contract is intended to achieve and that, where a contractual provision is capable of more than one meaning, the court should adopt the meaning that best accords with commercial common sense.  Adopting this approach, the Inner House allowed the appeal for the following reasons.

1. The contractual context was the termination of a lease where the tenants had not fulfilled their repairing obligations. The most natural way of providing a remedy for the tenant’s breach of contract would be to compensate the landlords for their loss (which would involve a remedy akin to damages).
2. In a case where the landlords intended to reinstate premises in full, Cape’s construction of the clause would allow for full recovery of the costs of reinstatement. (The amount due being calculated after the works had been carried out). On Grove’s suggested interpretation, the sum payable by the tenants would be based on an estimated value before the works were carried out.
3. In cases where the landlords did not intend to reinstate the property, Grove’s construction of the clause would mean that the landlord could recover very much more than the actual loss sustained by them through the tenant’s breach of contract. (The effect being that the amount recovered would essentially be arbitrary and unrelated to the tenants’ breach of contract)
4. Cape’s proposed interpretation of the clause provided full compensation to the landlords for the loss ultimately suffered by them. In the court’s opinion that was in accordance with commercial common sense and satisfied the important requirements of proportionality and predictability.

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.

Outer House case concerning a claim made under the Occupiers’ Liability (Scotland) Act 1960 (and concurrent common law duties of care) and the Workplace (Health, Safety and Welfare) Regulations 1992 (in particular regulations 5 and 17) following injuries caused as the result of a seagull attack.

Background
Ms Kelly worked at the Ladyburn Business Centre in Greenock which was owned and operated by Riverside (who accepted that they were also in the position of an employer). Whilst leaving the premises to buy her lunch she was attacked by a seagull which swooped at her with its wings outstretched causing her to stumble and fall on steps outside the centre.

Decision
After hearing the evidence, the court dismissed the claim finding that it had not been established on the balance of probabilities that the seagull which attacked Ms Kelly had come from the centre. Even if it could have been shown that the seagull had come from the centre, the temporary judge found that the claim  would nonetheless have failed.

Occupiers’ liability
With regard to occupiers’ liability (both at common law and under the 1960 Act) it was found that the incident was not reasonably foreseeable as Ms Kelly had been unable to show that complaints of analogous incidents had been made to Riverside prior to her accident.

Workplace (Health, Safety and Welfare) Regulations 1992
With regard to the Workplace Regulations, regulation 5 was found to relate to maintenance rather than construction of the premises and Mr Kelly’s contention that the property should have been protected by measures such as spiking, meshing and netting were matters of construction. An argument that the seagull nests should have been regularly removed also failed as such acts were found to be control measures rather than maintenance.

Regulation 17(1) of the 1992 Regulations obliges an employer to organise the workplace “in such a way that pedestrians and vehicles can circulate in a safe manner”. However Ms Kelly’s case under that provision also failed, the temporary judge finding:

“The pursuer has failed to tie in the attacking bird to the roof of the LBC. That is of course a different and antecedent point in this case, but it is also an important one in the context of consideration of regulation 17. It is simply, in my view, not feasible to consider the behaviour of wild creatures such as herring gulls and lesser black-backed gulls in the context of a regulation such as regulation 17(1) which addresses the organisation of a workplace. This is especially so when knowledge of an actual problem has not successfully been imputed to persons such as the defenders in this case.”

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 background to this case is a family dispute.  The dispute is over where the body of Private Mark Connolly will be buried.   MC’s mother wishes to have him buried in Methil.  His widow wishes him to be buried in Forfar.  The dispute has now lasted three years.

This matter has reached court once again, this time Forfar Sheriff Court.  A newspaper report on the latest proceedings can be found here.

My original report on this matter from 13 September 2011 can be found here.