Blackburn v Cowie [2008] ScotCS CSIH_30 (25 April 2008)

Blackburn v Cowie [2008] ScotCS CSIH_30 (25 April 2008)

The appellant's right to occupy the property was judicially terminated by divorce and prior court order, rendering her a precarious possessor subject to ejection. The permanent trustee was not required to be infeft at the time of the Sheriff's decree, as infeftment was obtained before final appellate decree. Section 40(2) of the Bankruptcy (Scotland) Act 1985 did not require a further application or consideration of its factors in the present action, as the prior order had already dispensed with consent to sale without conditions.

Citation
[2008] ScotCS CSIH_30
Parties
Pursuer and Respondent: Eileen Blackburn, permanent trustee on the sequestrated estates of William Cowie; Defender and Appellant: Elizabeth Cowie
Jurisdiction
Scotland
Judgment Date
25 April 2008
Procedural Posture
Appeal From Sheriff Principal (sheriffdom of Glasgow and Strathkelvin) to Inner House, Court of Session / Final Appellate Judgment
Outcome
Appeal refused; interlocutor of the Sheriff Principal affirmed.
Legal Topics
Sequestration, Trustee's Powers, Recovery of Possession, Matrimonial Homes, Infeftment, Summary Cause Procedure
Bankruptcy Property Law Family Law Sequestration Trustee's Powers Recovery of Possession Matrimonial Homes Infeftment +1 more

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Parties

Eileen Blackburn, permanent trustee on the sequestrated estates of William Cowie

Pursuer and Respondent

Elizabeth Cowie

Defender and Appellant

Procedural Posture

Appeal From Sheriff Principal (sheriffdom of Glasgow and Strathkelvin) to Inner House, Court of Session / Final Appellate Judgment

Legal Issues

  1. 1 Whether the permanent trustee must be infeft (hold a completed real right) in heritable property before obtaining decree for recovery of possession
  2. 2 Whether the Sheriff was required to consider the factors in section 40(2) of the Bankruptcy (Scotland) Act 1985 in an action for recovery of possession after a prior order dispensing with consent to sale

Ratio Decidendi

The appellant's right to occupy the property was judicially terminated by divorce and prior court order, rendering her a precarious possessor subject to ejection. The permanent trustee was not required to be infeft at the time of the Sheriff's decree, as infeftment was obtained before final appellate decree. Section 40(2) of the Bankruptcy (Scotland) Act 1985 did not require a further application or consideration of its factors in the present action, as the prior order had already dispensed with consent to sale without conditions.

Court Disposition

Appeal refused; interlocutor of the Sheriff Principal affirmed.

Orders

  • Refusal of appeal
  • Affirmation of Sheriff Principal's interlocutor