News archive

“Turnaround Time for Account Reviews

There is currently a 17 – 20 week waiting period for accounts to be reviewed. We apologise for any inconvenience the delay may cause financial guardians.

The Account Review Team are currently working with accounts received on and around 13th January 2014. Financial guardians who have queries regarding their accounts or the waiting time may contact opgreviewteam@scotcourts.gov.uk.”

“General correspondence

It is our aim to process general mail within 5 working days. Regrettably we are currently unable to meet this target due to the volume of priority work waiting to be processed. We apologise for any inconvenience the delay may cause.

If you are contacting us regarding an urgent matter and require immediate assistance, please telephone us on 01324 678300.”

“Update on Power of Attorney Submissions

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

• EPOAR submissions: 7 day waiting period, we are working on PoAs received on 1st May 2014
• Manual submissions: 15 week waiting period, we are working on PoAs received on and around 30th January 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.

Lands valuation appeal in which the assessors appealed against a decision of the Lands Tribunal in which the tribunal upheld appeals by mobile phone companies against entries made in the valuation rolls at the 2005 Revaluation in respect of various mobile mast sites.

The court outlined the typical arrangements at such sites in which there is generally a site owner who owns the site, a host who controls the mast (generally one of the mobile networks) and is a tenant of the owner, and “sharers” who are other mobile networks which the host allows to attach their equipment to the mast in return for a payment (part of which is usually passed to the site’s owner). The sharers usually erect a small cabin or cabinet close to the mast and run a cable from it to the mast.

There was no dispute that the cabin or the cabinet is heritable and is a separate rateable subject. There was also no dispute that the cable when it is attached to the mast and the aerial and other equipment to which it leads are heritable by accession but that the aerial is not rateable[1]. The question was whether the sharer is in rateable occupation of that part of the mast to which its cable and equipment are attached.

The assessors argued that the sharer’s right in the mast was either:

1. a pertinent of the cabin or the cabinet,
2. a wayleave over the mast; or
3. a right of tenancy.

On any of these interpretations the assessors contended that the sharer was in rateable occupation.

The Inner House refused the appeal. The court was not persuaded by the assessor’s argument as to the nature of the sharer’s right finding that the sharer’s right[2] in respect of the cables and equipment was at best a licence to such part of the mast as the host may, from time to time, in its uncontrolled discretion, direct. As to whether the sharer was in rateable occupation the court (the opinion being given by the Lord President) said the following:

 “The question whether the sharer is in rateable occupation turns on the nature and the terms of the sharer’s agreement and the de facto situation that is established in the evidence …. On the facts of these cases, the Tribunal concluded that the sharer was not in rateable occupation. That was pre-eminently a decision for the Tribunal. It is not one with which this court should interfere unless it is contrary to the evidence, or is unsupported by any evidence or is perverse or irrational. It is not suggested that any of these considerations apply. My own view is that the sharer cannot be said to enjoy the exclusivity and paramount control that are essential to rateable occupation; and that the conclusion of the Tribunal on this point is correct… The significant points in my view are that the sharer has no right to occupy any particular part of the mast, but has at most a licence to occupy a part of the mast at the pleasure and at the direction of the host; and that it can be made to reposition its cable and equipment whenever the host should so direct.”

 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.

Supreme Court case considering a lease of premises at Wardpark South Industrial Estate in Cumbernauld.  Batley were tenants and North Lanarkshire Council were sub-tenants.

At the centre of the dispute were works which the Council carried out to the property under a minute of agreement. In terms of the minute, the Council had to remove the works and re-instate the premises at the end of the agreement if they were required to do so by Batley.  Batley served a schedule of dilapidations after the end of the sublease.  However, the Council argued that the obligation to reinstate the premises died on the expiry of the sublease and therefore it did not require to comply.

In the Outer House, the temporary judge (Morag Wise QC) found that, in terms of the minute, there was no need for Batley to give written notice requiring removal of the works and allowed a proof to consider whether Batley had adequately conveyed its requirement for re-instatement when a surveyor acting on its behalf had telephoned the Council before the end of the sublease and indicated re-instatement would be required.

The Inner House allowed a reclaiming motion finding that the minute not only amended the sublease but also ratified provisions in the sublease. These included a provision incorporating a requirement for written notice which was contained in the head lease. In the absence of such written notice there was no requirement on the Council to re-instate the premises. An attempt by Batley to claim the cost of re-instating the premises under the general repairing clause in the sublease also failed.

The Supreme Court have allowed an appeal and allowed a proof before answer to hear evidence on the facts.

Construing the words used in the context of the minute of agreement as a whole and the surrounding factual matrix the court found that:

1. the use of the words “if so required by the Mid-Landlord” in relation to the re-instatement requirement in the minute was in contrast to two other provisions in the minute which expressly required written forms (suggesting that, where writing was required, it was expressly stated);
2. to interpret the documentation as requiring written notice required a convoluted construction of both the agreement and head lease whereas the simpler construction (preferred by the court) was that written notice was not required;
3. although the minute existed in the context of the head lease and sub-lease, it was a separate contract and the starting point for interpretation was the words it contained which pointed towards the conclusion that writing was not required for communications in all circumstances and that conclusion was not overturned by the provisions of the head lease and sub-lease; and
4. it made business common sense that written notice was not required as:
   1. although the minute stated that the obligations were incorporated into the sub-lease (containing a requirement for written notice), this was done so as to give the mid-landlord the power of irritancy if the sub-tenant breached its obligations under the minute; and
   2. the landlord would only require removal of the sub-tenants works at the end of the sublease when the sub-tenant would have to address its separate and continuing repairing obligation under the lease and, at the time such repairs were being carried out, the sub-tenant could readily respond to an intimation to remove its works (without the need for formal intimation).

With regard to Batley’s attempt to recover the cost of re-instating the premises under the general repairing clause in the sublease, the Supreme Court found that the repairing obligation was a continuing obligation which did not require notice from the landlord to activate it.

The full judgement is available from the Supreme Court here.

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

The England and Wales High Court has allowed the rectification of a deed of variation thus removing an avoidable inheritance tax liability of approximately £250,000.  The issue was that much of the estate in question was left to an elderly relative rather to a number of charities.  That is why there was an avoidable inheritance tax liability.

This is from the judgement:  “In the light of the matters discussed above I consider that the criteria for rectifying the Deed of Variation so that it reflects the clear intention of the Claimant at the time it was made, are satisfied, and that in all the circumstances it is right to grant the relief.”

The rectification was unopposed.

The full case report can be found here.

The April 2014 edition of HMRC’s Trusts & Estates newsletter for trusts and estates practitioners can be found here.

Outer House case considering a break option in leases of office premises situated on Broadway Park in Edinburgh.

The leases were due to expire in 2023 but could be broken as at 7 May 2013. In order to exercise the break option, the tenants (Scottish & Newcastle) required to give 12 months notice and not be “in breach of any of their obligations (under the lease in question) at the date of service of such notice and/or the termination date”.

Scottish & Newcastle served break notices on time but by their own admission, at the date of service of the notices, had not fully performed their repairing obligations under the lease. The business park argued that the leases continued after the notice date and sought payment of rent from the date of the notices.

Scottish & Newcastle argued that:

1. although they had not fully performed their obligations under the lease at the date of the notices, they were not in breach of the lease as the non-performance was remediable; and
2. (even if argument 1. was wrong) for the tenants to lose their option to break they had to be in breach of the lease either:
   1. both at the date the notices were served and at the date of termination; or
   2. at the date of termination.

Lord Malcolm rejected both arguments finding that, in terms of the leases, there was no distinction to be made between non-performance of the obligations and a breach of the obligations and, with regard to the second argument, the natural meaning of the words used was that a notice was invalid if the tenants were in breach of the notice either at the date of the notice, the date of termination or both.

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.

This is an Outer House case in which Mr Hann (the executor of the late James Wheeldon) sought reduction of a will (and confirmation on the will) which purported to leave property (Powfoot Hall) to the son of the late Doris Spence.

Mr Wheeldon had a business relationship with Mrs Spence, and in fulfilment of certain informal agreements between them, he conveyed Powfoot Hall (were he had lived for 43 years till his death in 2007) to her in 1987. In 1994 Mr Wheeldon and Mrs Spence made a further informal written agreement containing the following clause:

“… As affairs between … [Mrs Spence] … and … [Mr Wheeldon] … are now agreed by both parties concerned and fully settled, and the title deeds to the Powfoot Hall are hereby returned to … [Mr Wheeldon] …. who now assumes full legal title to Powfoot Hall on 20/12/1993 and becomes owner of said property…”.

However Mrs Spence died in 2003 without having conveyed Powfoot Hall back to Mr Wheeldon, and by her will of 2002, she left the property to her son.

After considering prior authority[1], Lord McEwan found that Mrs Spence had bound herself to leave the property to Mr Wheeldon during her lifetime notwithstanding the fact that her son may have taken it in good faith. Consideration was also given to the possible application of the offside goals rule[2]. However, Lord McEwan found that the rule did not apply in this case:

“Much was made of the “offside goal rule” in the very good natured debate before me where metaphors were freely mixed and, I suspect, both counsel knew more of soccer than I.

If I can continue in the same vein, I think the “offside goal rule” was intended to strike at bad faith; the player knowing he is out of position yet trying to secure a benefit from the offside place on the field of play. This is what Rodger is about. It does not deal with the player who takes an advantage gratuitously and who may not be offside. The problem is that the player [Mrs Spence] who passes the ball to him [Mr Wheeldon] has broken the rules and the pass is invalid.

Whether Lord Kincairney in 1893 was an aficionado of the beautiful game I know not. Even by then the game had rules. It was not called offside in those days but since the rules of football were formulated by the gentleman players of the English public schools in 1863 there was a prohibition against playing the ball if you were “out of play” (Rule 6) (See Melvyn Bragg: “Twelve books that changed the world” p102).

In my opinion this case does not depend on the doctrine in Rodger but on the principles set out in Paterson, dealing as it does with succession and not property and titles.”

The full judgement is available from Scottish Courts here.

The Upper Tax Tribunal has ruled that it is not bound by precedent set by the England & Wales High Court.

This means that it accepted HMRC’s plea that the prior case of Pierce v Wood was wrongly decided with the result that the disposal of scrip dividend shares by the discretionary trust in question is liable to the ten-year inheritance tax charge.

The full report can be found here.

“23 April 2014

Power of Attorney (PoA) Update – Manual Submissions

There is currently a 12 week waiting period before your PoA can be processed and returned to you. This week we will be working on PoAs received on and around 27th January 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.