Walter Sim Malcolm and others against Kevin William Paton and another (Sheriff Appeal Court Civil) [2026] SACCIV 28 (05 May 2026)

Walter Sim Malcolm and others against Kevin William Paton and another (Sheriff Appeal Court Civil) [2026] SACCIV 28 (05 May 2026)

The sheriff erred in law by treating the respondents' personal feelings and loss of certainty as material detriment, rather than requiring objective, praedial detriment to the benefited property. The statutory test in section 8(3)(a) was not satisfied; thus, the respondents had no interest to enforce the real burden.

Citation
[2026] SACCIV 28
Parties
Pursuer and Respondent: Walter Sim Malcolm; Pursuer and Respondent: Doctor Susan Jennifer Malcolm; Pursuer and Respondent: John Joseph Heenan; Pursuer and Respondent: Katrina Heenan; Pursuer and Respondent: Erik Jan Van Der Marel; Pursuer and Respondent: Kirsty Ann Van Der Marel; Defender and Appellant: Kevin William Paton; Defender and Appellant: Ann Marie Marion Paton
Jurisdiction
Scotland
Judgment Date
05 May 2026
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Sheriff Appeal Court
Outcome
Appeal allowed; sheriff's interlocutor recalled; respondents' first plea-in-law repelled; appellants' third, fourth and fifth pleas-in-law upheld; appellants assoilzied from the craves of the initial writ; expenses reserved.
Legal Topics
Real Burdens, Title Conditions (scotland) Act 2003, Interest to Enforce, Material Detriment, Interdict
Property Law Real Burdens Title Conditions (scotland) Act 2003 Interest to Enforce Material Detriment Interdict

Case Brief

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Parties

Walter Sim Malcolm

Pursuer and Respondent

Doctor Susan Jennifer Malcolm

Pursuer and Respondent

John Joseph Heenan

Pursuer and Respondent

Katrina Heenan

Pursuer and Respondent

Erik Jan Van Der Marel

Pursuer and Respondent

Kirsty Ann Van Der Marel

Pursuer and Respondent

Kevin William Paton

Defender and Appellant

Ann Marie Marion Paton

Defender and Appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Sheriff Appeal Court

Legal Issues

  1. 1 Whether respondents had sufficient interest under section 8 of the Title Conditions (Scotland) Act 2003 to enforce a real burden preventing erection of a boundary wall and gate.
  2. 2 Whether the sheriff erred in law in finding material detriment to the enjoyment of the benefited properties.

Ratio Decidendi

The sheriff erred in law by treating the respondents' personal feelings and loss of certainty as material detriment, rather than requiring objective, praedial detriment to the benefited property. The statutory test in section 8(3)(a) was not satisfied; thus, the respondents had no interest to enforce the real burden.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; respondents' first plea-in-law repelled; appellants' third, fourth and fifth pleas-in-law upheld; appellants assoilzied from the craves of the initial writ; expenses reserved.

Orders

  • Recall the interlocutor of the sheriff dated 4 June 2025.
  • Repel the first plea-in-law for the respondents.