Holms & Anor v. Ashford Estates Ltd [2006] ScotSC 87 (19 October 2006)

Holms & Anor v. Ashford Estates Ltd [2006] ScotSC 87 (19 October 2006)

The pursuers' servitude right of access was rendered ineffectual by the existence of Ms Mason's prior competing title to parking space 43, which prevented the pursuers from exercising their right of access to their own parking space. This constituted eviction in the sense required for a breach of warrandice claim, entitling the pursuers to damages.

Citation
[2006] ScotSC 87
Parties
Pursuers and Appellants: Robert & Anne Holms; Defenders and Respondents: Ashford Estates Ltd
Jurisdiction
Scotland
Judgment Date
19 October 2006
Procedural Posture
Appeal (sheriff Court) / Judgment on Appeal
Outcome
Appeal refused; Sheriff's decision affirmed.
Legal Topics
Breach of Warrandice, Servitude Rights, Eviction, Competing Title, Damages
Property Law Conveyancing Breach of Warrandice Servitude Rights Eviction Competing Title Damages

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Parties

Robert & Anne Holms

Pursuers and Appellants

Ashford Estates Ltd

Defenders and Respondents

Procedural Posture

Appeal (sheriff Court) / Judgment on Appeal

Legal Issues

  1. 1 Whether the pursuers suffered eviction in the sense required for a breach of warrandice claim due to inability to exercise a servitude right of access over a parking space already disponed to a third party.
  2. 2 Whether the existence of a prior competing title (Ms Mason) rendered the pursuers' servitude right ineffectual and thus constituted a breach of warrandice.

Ratio Decidendi

The pursuers' servitude right of access was rendered ineffectual by the existence of Ms Mason's prior competing title to parking space 43, which prevented the pursuers from exercising their right of access to their own parking space. This constituted eviction in the sense required for a breach of warrandice claim, entitling the pursuers to damages.

Court Disposition

Appeal refused; Sheriff's decision affirmed.

Orders

  • Defenders and appellants found liable to the pursuers and respondents in the expenses occasioned by the appeal; account remitted to the Auditor of Court to tax and report.