Property Cases

Burnett’s Trustee v Grainger

Registration is essential to acquire a real right; offside goals does not apply to involuntary transfers such as sequestration.

Rodger (Builders) Ltd v Fawdry

Established the offside goals rule: bad-faith acquirer of a real right in breach of a prior personal right holds a voidable title.

Wallace v Simmers

Offside goals applies only where the prior personal right is to acquire a real right.

Parker v British Airways Board

Possession requires control and intention; container cases show limits of possession.

Smith v Bank of Scotland

Third-party granters of security are protected where consent is improperly obtained.

Welsh v Russell

Remedy for breach of warrandice in a disposition is damages, not reduction.

Clark v Lindale Homes Ltd

Judicial eviction required before damages can be claimed for breach of warrandice.

Lothian & Border Farmers Ltd v McCutcheon

Warrandice free from encumbrances covers undisclosed securities.

Gray v University of Edinburgh

A lease can exist even if duration is not agreed.

Shetland Islands Council v BP Petroleum Developments Ltd

A lease can exist even if rent is not agreed.

Mann v Houston

Rent must be a periodical payment.

Gyle Shopping Centre v Marks and Spencer

Shared possession of common parts does not prevent exclusive possession.

St Andrews Forest Lodges v Grieve

Exclusive possession is a key indicator of a lease.

Joint Administrators of Rangers FC plc, Noters

Distinction between lease and licence depends on substance not label.

Sheriff v O’Rourke

Reinforced modern approach to distinguishing leases and licences.

Scottish Residential Estates Development Co Ltd v Henderson

Substance over form when characterising leases.

Optical Express (Gyle) Ltd v Marks and Spencer

Some non-essential lease terms can bind successor landlords.

Warren James (Jewellers) Ltd v Overgate GP Ltd

Exclusivity clauses may bind successor landlords.

Advice Centre for Mortgages v MacNicoll

Inter naturalia terms bind successor landlords.

Retail Parks Investment Ltd v RBS plc

Limits on enforcement of keep-open clauses.

Highland & Universal Properties Ltd v Safeway Properties Ltd

Enforcement of keep-open obligations.

Co-operative Insurance Society v Argyll Stores

Damages, not specific implement, for breach of keep-open clauses.

Douglas Shelf Seven Ltd v Co-operative Wholesale Society Ltd

Difficulty in assessing damages for keep-open clauses.

Lujo Properties Ltd v Gruve Ltd

Modern application of irritancy principles.

Signet Group plc v C&J Clark Retail Properties Ltd

Tacit relocation arises where notice to quit is invalid.

Rockford Trilogy Ltd v NCR Ltd

Tacit relocation confirmed in modern commercial leasing.

Macdougall v Guidi

Tacit relocation can be excluded by agreement.

Ben Cleuch Estates Ltd v Scottish Enterprise

Break clauses must be exercised strictly.

AWD Chase de Vere Wealth Management Ltd v Melville Street Properties

Errors in break notices can invalidate termination.

Moncrieff v Jamieson

Servitude of parking recognised; necessity test applied flexibly.

Nationwide Building Society v Walter D Allan

Servitude may be repugnant with ownership.

Cochrane v Ewart

Implied grant of servitude where necessary for reasonable enjoyment.

Fraser v Cox

Caution against overly broad implication of servitudes.

Ferguson v Campbell

Implied reservation requires utter necessity.

Murray v Medley

Utter necessity not met where alternative water supply exists.

Soulsby v Jones

Quality and quantity of access relevant to prescriptive servitudes and repair access.

Aberdeen City Council v Wanchoo

Prescriptive servitudes must be adverse, not tolerated.

Greig v Middleton

Mere tolerance defeats prescription.

Bowers v Kennedy

Inherent rights of ownership distinguished from servitudes.

Bain v Morrison

Law balances rights of benefited and burdened proprietors.

Chalmers Property Investment Co Ltd v Robson

Benefited proprietor may enter burdened land to exercise servitude.

Central Regional Council v Ferns

Benefited proprietor may enforce servitude against third parties.

Alvis v Harrison

Servitudes must be exercised civiliter and only for benefited land.

SP Distribution Ltd v Rafique

Unacceptable increase in burden invalidates servitude use.

Tayport Patent Slip Co

Burdened proprietor retains full ownership subject to servitude.

Beveridge v Marshall

Burdened proprietor must not obstruct servitude.

Colecliffe v Thompson

Lands Tribunal may discharge servitude where access is no longer necessary.

Matnic Ltd v Armstrong

Tribunal may vary real burdens where reasonable.

Smith v Lawrence

Tribunal consideration of reasonableness in discharge.

Taylors of Aberdeen v Coutts

Real burdens must relate to land, not persons.

Grant v Heriot Trust

Burdens repugnant with ownership are invalid.

Royal Bank of Scotland v Wilson

Court authority required before enforcing standard security.

McKichen v Muir

Recognition of possessory liens.

Duke of Buccleuch v Magistrates of Edinburgh

Encroachment may be interdicted or removed.

Anderson v Brattisani’s

Fixing objects to neighbouring property can be encroachment.

Halkerson v Wedderburn

Tree roots and branches may constitute encroachment.

Dewar v Fraser

Aemulatio vicini requires proof of malice.

RHM Bakeries v Strathclyde Regional Council

Fault required for nuisance.