Articles categorised Property Law

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Morston Whitecross Limited v. Falkirk Council, [2012] CSOH 97, 8 June 2012

20 Jun 2012 By CaseCheck Property Law

 
Outer House case concerning the extent of a public road (the A801) at Whitecross near Linlithgow.  The question for the…

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Roger Jones and Katherine Jones v. William Henderson Gray and Edna Drummond Ross or Gray, [2011] CSOH 204, 13 December 2011

5 Jan 2012 By CaseCheck Property Law

Outer House case concerning the creation of a servitude right of access by prescriptive possession. Mr and Mrs Gray owned 40 Montgomerie Drive, Fairlie and a lane running to it from Montgomerie Drive.  Mr and Mrs Jones owned 38 Montgomerie Drive and sought declarator that a servitude right of pedestrian and vehicular access had been created in favour of no 38 over part of the lane leading to the rear of their property and garage.
The Joneses also said that the Grays had erected a lockable post and fence in front of their garage so as to obstruct access to it from the lane and sought a decree ordaining removal of the obstructions and interdict preventing the Grays from interfering with the disputed area.
Section 3(2) of the Prescription and Limitation (Scotland) Act 1973 provides:
“If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge.”
In support of their action, the Joneses claimed that their predecessors in title had taken access over the disputed area including daily access to the garage with their car and with their sailing dingy from time to time between April 1979 and June 2007.  The access had been free and uninterrupted and it was consistent with exercise as a matter of right. The Joneses had taken access over the disputed area from June 2007 for parking their car in the garage, unloading their car and getting from the lane to the garage doors.
The Grays argued that the Joneses had not adequately specified the continuity, volume and frequency of the possession in their pleadings nor had they demonstrated that possession had been continuous for the prescriptive period or that it was open and ‘as of right’. They contended that the action should be dismissed on the basis the Joneses arguments were irrelevant and/or that they did not give fair notice of important matters to the Grays.
Lord Doherty was not satisfied that the case should be dismissed. Applying the test set out in Jamieson v Jamieson (1952), it was not a case which would necessarily fail even if all of the Joneses arguments were proved. Several of the issues between the parties involved questions of fact and degree which would be capable of determination after a proof (e.g. whether possession was continuous). Lord Doherty was also not persuaded that there was a lack of fair notice on important matters. The crux of the Grays’ complaint was that the use of the word “included” suggested that the Joneses would be able to lead evidence of other unspecified modes of access of which no notice had been given. Lord Doherty considered that use of the word “included” did not reserve them a free hand to do so and if it were to happen the Grays would be entitled to object to such evidence being led.
A proof before answer was allowed.

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Case Comment: Kernott v Jones [2011] UKSC 53

24 Nov 2011 By UKSC blog Property Law

By Stephanie Smith, Arden Chambers
In this appeal (from [2010] EWCA Civ 578) – their Lordships were charged with revisiting the…

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Happily ever after………

11 Nov 2011 By PainSmith Property Law

As shown in the previous blog, many issues can arise when couples purchase a property together. With this in mind,…

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Orkney Housing Association Limited v Moira Atkinson and Thomas Atkinson, A45/09

14 Jul 2011 By CaseCheck Property Law

Sheriff court case concerning servitude rights over an access road near Dounby on Orkney.  Orkney Housing Association owned former garage…

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Landmore Limited v. Shanks Dumfries and Galloway Limited, [2011] CSOH 100

20 Jun 2011 By CaseCheck Property Law

Case considering the meaning of “waste” in terms of the lease of a landfill site near Stranraer.  The lease provided…

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Its all in the contract

1 Jun 2011 By Tessa Shepperson Property Law

Foundations of landlord and tenant law – part 4 As well as being an ‘estate in land’ (looked at in part 1) a lease or tenancy is also a type of contract. So we need to take a look at contract law. Contract law is a very important area of law which affects all of us in our…

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A digression on equity and the Court of Chancery

25 May 2011 By Tessa Shepperson Property Law

Foundations of landlord and tenant law – part 3 I had thought of leaving this bit out, as it is not essential to landlord and tenant law. But it is an important part of our legal history and comes into all sorts of things, so I thought I had better just mention it. Anyway it…

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Owning property with other people – the rules

17 May 2011 By Tessa Shepperson Property Law

Foundations of landlord and tenant law – part 2 Often people want to own property together. For example: A husband and wife may own their house jointly Business partners may own the lease for their shop premises together Brothers and sisters may be left a property jointly when their parents die Several friends may rent…

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Case Comment: Royal Bank of Scotland plc v Wilson & Anor [2010] UKSC 50

1 Dec 2010 By UKSC blog Property Law

The intricacies of Scottish conveyancing are unlikely to grip the readers of this blog. So, in this article, the focus is on the unhappy turn of events which confronted the respondent’s counsel at the recent Supreme Court hearing.
To do so requires a…

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