RECLAIMING MOTION BY BAM TCP ATLANTIC SQUARE LTD AGAINST BRITISH TELECOMMUNICATIONS PLC; AND FIRLEIGH LTD [2021] ScotCS CSIH_44 (20 August 2021)

RECLAIMING MOTION BY BAM TCP ATLANTIC SQUARE LTD AGAINST BRITISH TELECOMMUNICATIONS PLC; AND FIRLEIGH LTD [2021] ScotCS CSIH_44 (20 August 2021)

The Deed of Conditions and associated plans sufficiently delineated the common parts for conveyancing purposes; the first defenders' disposition and title sheet are habile to convey a pro indiviso share in the common parts. There is no uncertainty precluding conveyance under the de praesenti principle. Any conflict or inaccuracy in title sheets is subject to rectification unless the pursuers are proprietors in possession or prescription operates. Proof before answer is required on possession and prescription.

Citation
[2021] ScotCS CSIH_44
Parties
Pursuer and Reclaimer: BAM TCP Atlantic Square Limited; First Defender and Respondent: British Telecommunications PLC; Second Defender and Respondent: Firleigh Limited
Jurisdiction
Scotland
Judgment Date
20 August 2021
Procedural Posture
Reclaiming Motion (appeal) / Interlocutory Decision; Proof Before Answer Ordered
Outcome
Proof before answer ordered; all pleas standing; action not dismissed.
Legal Topics
Common Property, Land Registration Accuracy, Prescription, De Praesenti Principle, Rectification of Title Sheets
Property Law Land Registration Commercial Law Common Property Land Registration Accuracy Prescription De Praesenti Principle Rectification of Title Sheets

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Parties

BAM TCP Atlantic Square Limited

Pursuer and Reclaimer

British Telecommunications PLC

First Defender and Respondent

Firleigh Limited

Second Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Interlocutory Decision; Proof Before Answer Ordered

Legal Issues

  1. 1 Whether the pursuers are sole and exclusive heritable proprietors of the York Street ramp and turning circle
  2. 2 Whether the ramp and turning circle are common property
  3. 3 Effect of conflicting title sheets under Land Registration (Scotland) Act 1979 and 2012

Ratio Decidendi

The Deed of Conditions and associated plans sufficiently delineated the common parts for conveyancing purposes; the first defenders' disposition and title sheet are habile to convey a pro indiviso share in the common parts. There is no uncertainty precluding conveyance under the de praesenti principle. Any conflict or inaccuracy in title sheets is subject to rectification unless the pursuers are proprietors in possession or prescription operates. Proof before answer is required on possession and prescription.

Court Disposition

Proof before answer ordered; all pleas standing; action not dismissed.

Orders

  • Proof restricted to issues of proprietor in possession and prescription under s 9(3) of the 1979 Act and s 1(1) of the 1973 Act.
  • All pleas to remain standing; appropriate pleas to be inserted if determination is based on possession or prescription.