Law & Ors v Robertson Construction Eastern Ltd [2017] ScotCS CSOH_70 (28 April 2017)

Law & Ors v Robertson Construction Eastern Ltd [2017] ScotCS CSOH_70 (28 April 2017)

The obligation to enter into the Overage Agreement was not an 'obligation relating to land' within the meaning of Schedule 1, paragraph 2(e) of the Prescription (Scotland) Act 1973. It was a personal obligation to enter into an agreement regulating the division of possible future sale or compensation proceeds, not conferring any right or interest in land itself. Accordingly, the obligation was subject to the five-year negative prescription and was extinguished before the action was raised.

Citation
[2017] ScotCS CSOH_70
Parties
Pursuers: John Allan Law and Gillian Margaret Law and Legal & General Assurance Society Limited as trustees of the JAL Fish Limited Small Self-Administered Pension Scheme; Pursuer: J A L Fish Limited; Pursuer: Gillian Margaret Law; Defender: Robertson Construction Eastern Limited
Jurisdiction
Scotland
Judgment Date
28 April 2017
Procedural Posture
Commercial Action (preliminary Proof) / Judgment After Preliminary Proof on Prescription Issue
Outcome
Action dismissed; decree of absolvitor pronounced in favour of the defender.
Legal Topics
Obligations Relating to Land, Negative Prescription, Missives of Sale, Overage Agreements, Specific Implement
Property Law Contract Law Prescription Law Obligations Relating to Land Negative Prescription Missives of Sale Overage Agreements Specific Implement

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Parties

John Allan Law and Gillian Margaret Law and Legal & General Assurance Society Limited as trustees of the JAL Fish Limited Small Self-Administered Pension Scheme

Pursuers

J A L Fish Limited

Pursuer

Gillian Margaret Law

Pursuer

Robertson Construction Eastern Limited

Defender

Procedural Posture

Commercial Action (preliminary Proof) / Judgment After Preliminary Proof on Prescription Issue

Legal Issues

  1. 1 Whether the obligation to enter into an Overage Agreement under missives is an 'obligation relating to land' for the purposes of the Prescription (Scotland) Act 1973, Schedule 1, paragraph 2(e)
  2. 2 Whether the obligation was extinguished by the short negative prescription

Ratio Decidendi

The obligation to enter into the Overage Agreement was not an 'obligation relating to land' within the meaning of Schedule 1, paragraph 2(e) of the Prescription (Scotland) Act 1973. It was a personal obligation to enter into an agreement regulating the division of possible future sale or compensation proceeds, not conferring any right or interest in land itself. Accordingly, the obligation was subject to the five-year negative prescription and was extinguished before the action was raised.

Court Disposition

Action dismissed; decree of absolvitor pronounced in favour of the defender.

Orders

  • Sustain the defender’s second plea-in-law.
  • Repel the pursuers’ third plea-in-law.