HAZEL FRASER AGAINST IAN JAMES FRASER [2014] ScotSC 112 (18 November 2014)

HAZEL FRASER AGAINST IAN JAMES FRASER [2014] ScotSC 112 (18 November 2014)

Where parties have entered into a binding contract (minute of agreement) governing the division or sale of jointly owned property, neither party is entitled to seek a court order for division or sale while the contract remains in force. The court's jurisdiction is ousted by the contract, and the appropriate remedy is to seek implement of the contract, not division or sale by court order.

Citation
[2014] ScotSC 112
Parties
Pursuer: Hazel Fraser; Defender: Ian James Fraser
Jurisdiction
Scotland
Judgment Date
18 November 2014
Procedural Posture
Civil Action for Declarator and Division/sale of Property / Debate on Preliminary Pleas
Outcome
Action dismissed
Legal Topics
Pro Indiviso Proprietorship, Division and Sale of Property, Minute of Agreement, Contractual Bar to Remedies
Property Law Contract Law Pro Indiviso Proprietorship Division and Sale of Property Minute of Agreement Contractual Bar to Remedies

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Hazel Fraser

Pursuer

Ian James Fraser

Defender

Procedural Posture

Civil Action for Declarator and Division/sale of Property / Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether a co-owner can insist on division or sale of property in the face of a binding contract (minute of agreement) governing division/sale
  2. 2 Whether the pursuer's pleadings are relevant in light of the minute of agreement
  3. 3 Whether the court has jurisdiction to order division or sale where parties have contracted otherwise

Ratio Decidendi

Where parties have entered into a binding contract (minute of agreement) governing the division or sale of jointly owned property, neither party is entitled to seek a court order for division or sale while the contract remains in force. The court's jurisdiction is ousted by the contract, and the appropriate remedy is to seek implement of the contract, not division or sale by court order.

Court Disposition

Action dismissed

Orders

  • Sustains the defender’s preliminary plea in law number 1
  • Repels the pursuer’s pleas in law