Inverness Seafield Development Co Ltd v DCS MacKintosh [1999] ScotCS 229 (30 September 1999)

Inverness Seafield Development Co Ltd v DCS MacKintosh [1999] ScotCS 229 (30 September 1999)

The contract contemplated partial disposition of the land, and the retained land would be landlocked without access. The implication of a servitude right of access by reservation is necessary and consistent with the contract. The defender is entitled to insist on the servitude being made express in the disposition, and is not in breach of contract. The pursuers have not established a relevant case of breach of contract to entitle them to adjudication.

Citation
[1999] ScotCS 229
Parties
Pursuer: Inverness Seafield Development Company Limited; Defender: D. C. S. MacKintosh
Jurisdiction
Scotland
Judgment Date
30 September 1999
Procedural Posture
Civil Property/contract / Procedure Roll Hearing on Preliminary Pleas
Outcome
Action dismissed
Legal Topics
Servitude Rights, Implied Terms, Adjudication, Land Access, Partial Disposition
Property Law Contract Law Servitude Rights Implied Terms Adjudication Land Access Partial Disposition

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Parties

Inverness Seafield Development Company Limited

Pursuer

D. C. S. MacKintosh

Defender

Procedural Posture

Civil Property/contract / Procedure Roll Hearing on Preliminary Pleas

Legal Issues

  1. 1 Whether a servitude right of access can be implied by reservation in favour of the defender upon partial exercise of an option over land, rendering the retained land landlocked
  2. 2 Whether the pursuers are entitled to a disposition of the option area free of any servitude right

Ratio Decidendi

The contract contemplated partial disposition of the land, and the retained land would be landlocked without access. The implication of a servitude right of access by reservation is necessary and consistent with the contract. The defender is entitled to insist on the servitude being made express in the disposition, and is not in breach of contract. The pursuers have not established a relevant case of breach of contract to entitle them to adjudication.

Court Disposition

Action dismissed

Orders

  • Sustained defender's first plea-in-law to relevancy and dismissed the action