Dougall v. Dunfermline Town Council [1907] ScotLR 131 (20 November 1907)

Dougall v. Dunfermline Town Council [1907] ScotLR 131 (20 November 1907)

Where a tenant is partially evicted from the leased subjects due to a public right not disclosed or admitted by the landlord, and the landlord fails to defend or clarify the tenant's rights, the tenant is entitled to an abatement of rent and to recover legal expenses incurred in unsuccessful litigation to vindicate his right to possession, as these are direct consequences of the landlord's breach of warrandice.

Citation
[1907] ScotLR 131
Parties
Pursuer: William Dougall; Defender: Provost, Magistrates, and Councillors of the Royal Burgh of Dunfermline (Dunfermline Town Council)
Jurisdiction
Scotland
Judgment Date
20 November 1907
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor of 8th January 1907 adhered to.
Legal Topics
Lease, Warrandice, Eviction, Damages, Partial Eviction, Indemnity, Legal Expenses, Common Good Land
Landlord and Tenant Contract Property Law Lease Warrandice Eviction Damages Partial Eviction +3 more

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Parties

William Dougall

Pursuer

Provost, Magistrates, and Councillors of the Royal Burgh of Dunfermline (Dunfermline Town Council)

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the tenant was partially evicted from the leased subjects due to public fishing rights.
  2. 2 Whether the landlord (Town Council) breached the warrandice in the lease by failing to secure full and peaceable possession for the tenant.
  3. 3 Whether the tenant is entitled to an abatement of rent and reimbursement of legal expenses incurred in unsuccessful litigation to vindicate his right to possession.

Ratio Decidendi

Where a tenant is partially evicted from the leased subjects due to a public right not disclosed or admitted by the landlord, and the landlord fails to defend or clarify the tenant's rights, the tenant is entitled to an abatement of rent and to recover legal expenses incurred in unsuccessful litigation to vindicate his right to possession, as these are direct consequences of the landlord's breach of warrandice.

Court Disposition

Appeal dismissed; interlocutor of 8th January 1907 adhered to.

Orders

  • Defenders found liable to the pursuer for an abatement of £5 per annum from the rent for the currency of the lease and for 1904 and 1905.
  • Defenders found liable to pay the taxed amount of expenses incurred by the pursuer in the previous action and those for which he was found liable.