Montgomerie-Fleming's Trustees v. Kennedy [1912] ScotLR 925 (13 July 1912)

Montgomerie-Fleming's Trustees v. Kennedy [1912] ScotLR 925 (13 July 1912)

The feu-contract clause requiring the property to be 'occupied as self-contained lodgings' is a real burden restricting occupation to that use. Conversion of the basement into a cabinetmaking or upholstery business constitutes a contravention of this restriction.

Citation
[1912] ScotLR 925
Parties
Pursuer: Hugh Tennant, Holland House, West Kilbride, and others, trustees acting under the trust-disposition and settlement of the late James Brown Montgomerie-Fleming, of Kelvinside, Glasgow; Defender: Alexander Kennedy, cabinetmaker and upholsterer, Byres Road, Hillhead, Glasgow
Jurisdiction
Scotland
Judgment Date
13 July 1912
Procedural Posture
Action of Declarator and Interdict / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; declarator and interdict granted in restricted terms
Legal Topics
Feu Contract, Real Burdens, Restrictions on Use, Self Contained Lodging, Interpretation of Title Deeds
Property Law Real Burdens Land Law Feu Contract Restrictions on Use Self Contained Lodging Interpretation of Title Deeds

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Parties

Hugh Tennant, Holland House, West Kilbride, and others, trustees acting under the trust-disposition and settlement of the late James Brown Montgomerie-Fleming, of Kelvinside, Glasgow

Pursuer

Alexander Kennedy, cabinetmaker and upholsterer, Byres Road, Hillhead, Glasgow

Defender

Procedural Posture

Action of Declarator and Interdict / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division

Legal Issues

  1. 1 Whether the feu-contract prohibits occupation of the premises otherwise than as a self-contained lodging
  2. 2 Whether conversion of the basement into a cabinetmaking or upholstery business breaches the feu-contract

Ratio Decidendi

The feu-contract clause requiring the property to be 'occupied as self-contained lodgings' is a real burden restricting occupation to that use. Conversion of the basement into a cabinetmaking or upholstery business constitutes a contravention of this restriction.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; declarator and interdict granted in restricted terms

Orders

  • Found and declared that the defender is not entitled to occupy the self-contained lodging otherwise than as a self-contained lodging
  • Interdicted, prohibited, and discharged the defender from occupying the basement floor for the purpose of a cabinetmaking or upholstery business