Douglas & Angus Estates & Anor v McAllister [2015] ScotCS CSIH_2 (06 January 2015)

Douglas & Angus Estates & Anor v McAllister [2015] ScotCS CSIH_2 (06 January 2015)

Where the defender has no competing title or evidence of a third party's title, the pursuer need only produce an ex facie valid title to succeed in an action for removal. The pursuers established such a title; the defender's mere belief in third-party ownership was irrelevant.

Citation
[2015] ScotCS CSIH_2
Parties
Pursuer and Respondent: Douglas & Angus Estates; Pursuer and Respondent: Richard John Carmichael; Defender and Appellant: Thomas Russell McAllister
Jurisdiction
Scotland
Judgment Date
06 January 2015
Procedural Posture
Appeal / Appeal From Sheriff Principal to Inner House, Court of Session
Outcome
Appeal refused; interlocutors of Sheriff Principal and sheriff adhered to.
Legal Topics
Title to Land, Removal of Occupier, Prima Facie Title, Competing Titles, Declarator, Relevancy of Defences
Property Law Civil Procedure Title to Land Removal of Occupier Prima Facie Title Competing Titles Declarator Relevancy of Defences

Case Brief

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Parties

Douglas & Angus Estates

Pursuer and Respondent

Richard John Carmichael

Pursuer and Respondent

Thomas Russell McAllister

Defender and Appellant

Procedural Posture

Appeal / Appeal From Sheriff Principal to Inner House, Court of Session

Legal Issues

  1. 1 What level of title must a pursuer establish to remove an occupier who has no title but alleges possible third-party ownership?
  2. 2 Whether the pursuers have established a prima facie title sufficient to obtain decree of removal against the defender.

Ratio Decidendi

Where the defender has no competing title or evidence of a third party's title, the pursuer need only produce an ex facie valid title to succeed in an action for removal. The pursuers established such a title; the defender's mere belief in third-party ownership was irrelevant.

Court Disposition

Appeal refused; interlocutors of Sheriff Principal and sheriff adhered to.

Orders

  • Refusal of appeal
  • Adherence to interlocutor of Sheriff Principal dated 9 June 2014