Candleberry Ltd v. West End Homeowners Association & Ors [2006] ScotCS CSIH_28 (26 May 2006)

Candleberry Ltd v. West End Homeowners Association & Ors [2006] ScotCS CSIH_28 (26 May 2006)

The Deed of Conditions, as incorporated into both parties' registered titles, constituted a servitude right of vehicular and pedestrian access over the public areas, including the disputed footpath, in favour of the pursuers as proprietors. The pursuers established a strong prima facie case for such a right, and the balance of convenience favoured granting interim interdict to prevent economic loss and enable development. The sheriff and sheriff principal erred in their approach to both the legal construction of the titles and the assessment of the balance of convenience.

Citation
[2006] ScotCS CSIH_28
Parties
Pursuers and Appellants: Candleberry Limited; Defenders and Respondents: West End Homeowners Association and Others
Jurisdiction
Scotland
Judgment Date
26 May 2006
Procedural Posture
Appeal / Interim Interdict; Appeal From Sheriff Principal to Court of Session (inner House, Extra Division)
Outcome
Appeal allowed; cross-appeal refused; interlocutors of sheriff and sheriff principal recalled; interim interdict granted against defenders; case remitted to sheriff to proceed as accords.
Legal Topics
Servitude Rights of Access, Interpretation of Deed of Conditions, Balance of Convenience in Interim Interdicts, Land Registration and Burdens, Constitution of Servitudes
Property Law Conveyancing Civil Procedure Servitude Rights of Access Interpretation of Deed of Conditions Balance of Convenience in Interim Interdicts Land Registration and Burdens Constitution of Servitudes

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 5 Authorities cited 10 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Candleberry Limited

Pursuers and Appellants

West End Homeowners Association and Others

Defenders and Respondents

Procedural Posture

Appeal / Interim Interdict; Appeal From Sheriff Principal to Court of Session (inner House, Extra Division)

Legal Issues

  1. 1 Whether the pursuers are entitled to a servitude right of vehicular access over a footpath owned by the defenders under the Deed of Conditions and registered titles.
  2. 2 Whether the sheriff and sheriff principal erred in their assessment of the prima facie case and the balance of convenience for interim interdict.

Ratio Decidendi

The Deed of Conditions, as incorporated into both parties' registered titles, constituted a servitude right of vehicular and pedestrian access over the public areas, including the disputed footpath, in favour of the pursuers as proprietors. The pursuers established a strong prima facie case for such a right, and the balance of convenience favoured granting interim interdict to prevent economic loss and enable development. The sheriff and sheriff principal erred in their approach to both the legal construction of the titles and the assessment of the balance of convenience.

Court Disposition

Appeal allowed; cross-appeal refused; interlocutors of sheriff and sheriff principal recalled; interim interdict granted against defenders; case remitted to sheriff to proceed as accords.

Orders

  • Refusal of defenders' cross-appeal.
  • Allowance of pursuers' appeal.