The Advice Centre for Mortgages Ltd v. McNicoll [2006] ScotCS CSOH_58 (06 April 2006)

The Advice Centre for Mortgages Ltd v. McNicoll [2006] ScotCS CSOH_58 (06 April 2006)

The pursuers failed to demonstrate consensus in the Missives or Lease, and their actings were not referable to a concluded contract. The Lease was unsigned and thus incapable of creating real rights or binding singular successors under the 1995 Act. The personal bar provisions of the Act do not apply to create real rights or bind third parties. The defender, as singular successor, is not bound by any personal rights or option to purchase. Allegations of bad faith were immaterial as no breach of existing obligation occurred at the time of sale.

Citation
[2006] ScotCS CSOH_58
Parties
Pursuer: The Advice Centre for Mortgages Limited; Defender: Frances McNicoll
Jurisdiction
Scotland
Judgment Date
06 April 2006
Procedural Posture
Civil (declarator, Lease/option to Purchase) / Outer House, Court of Session – Opinion After Debate on Relevancy
Outcome
Action dismissed
Legal Topics
Leases, Options to Purchase, Requirements of Writing (scotland) Act 1995, Personal Bar, Rei Interventus, Binding Nature of Missives, Real Vs Personal Rights
Property Law Contract Law Land Law Leases Options to Purchase Requirements of Writing (scotland) Act 1995 Personal Bar Rei Interventus +2 more

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Parties

The Advice Centre for Mortgages Limited

Pursuer

Frances McNicoll

Defender

Procedural Posture

Civil (declarator, Lease/option to Purchase) / Outer House, Court of Session – Opinion After Debate on Relevancy

Legal Issues

  1. 1 Whether the pursuers had a binding lease and option to purchase enforceable against the defender as singular successor
  2. 2 Whether the Missives or Lease constituted a valid contract of lease and option to purchase under Scots law
  3. 3 Whether personal bar or actings (rei interventus) could cure deficiencies in form or consensus under the Requirements of Writing (Scotland) Act 1995

Ratio Decidendi

The pursuers failed to demonstrate consensus in the Missives or Lease, and their actings were not referable to a concluded contract. The Lease was unsigned and thus incapable of creating real rights or binding singular successors under the 1995 Act. The personal bar provisions of the Act do not apply to create real rights or bind third parties. The defender, as singular successor, is not bound by any personal rights or option to purchase. Allegations of bad faith were immaterial as no breach of existing obligation occurred at the time of sale.

Court Disposition

Action dismissed

Orders

  • Sustained defender's plea to relevancy
  • Dismissed the pursuers' action