JOHN GRAY AGAINST RODERICK JOHN MACNEIL (AS EXECUTOR-NOMINATE TO THE ESTATE OF THE LATE DONALD MACNEIL) [2016] ScotSC 8 (02 February 2016)

JOHN GRAY AGAINST RODERICK JOHN MACNEIL (AS EXECUTOR-NOMINATE TO THE ESTATE OF THE LATE DONALD MACNEIL) [2016] ScotSC 8 (02 February 2016)

The verbal lease was invalid as it sought to create a real right in land and was not in writing as required by section 1(2)(b) of the Requirements of Writing (Scotland) Act 1995. The pursuer cannot rely on personal bar provisions for a real right in land. The pursuer has a real right in the chip shop equipment, which did not accede to the land, and is entitled to delivery or its value unless vindicated from the defender.

Citation
[2016] SC LOC 8 A5
Parties
Pursuer: John Gray; Defender: Roderick John MacNeil (as Executor-nominate to the estate of the late Donald MacNeil)
Jurisdiction
Scotland
Judgment Date
02 February 2016
Procedural Posture
Civil Action for Delivery and Damages / Judgment After Proof Before Answer
Outcome
Decree of absolvitor granted in respect of crave 2 (damages for lost profits); procedural hearing fixed to consider disposal of crave 1 (delivery of equipment) and expenses.
Legal Topics
Verbal Lease Validity, Accession of Moveables, Personal Bar Under Requirements of Writing (scotland) Act 1995, Delivery of Moveable Property, Damages for Breach of Lease
Property Law Contract Law Succession Law Verbal Lease Validity Accession of Moveables Personal Bar Under Requirements of Writing (scotland) Act 1995 Delivery of Moveable Property Damages for Breach of Lease

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Parties

John Gray

Pursuer

Roderick John MacNeil (as Executor-nominate to the estate of the late Donald MacNeil)

Defender

Procedural Posture

Civil Action for Delivery and Damages / Judgment After Proof Before Answer

Legal Issues

  1. 1 Is the pursuer entitled to delivery of chip shop equipment or its value?
  2. 2 Did a valid lease exist between pursuer and deceased?
  3. 3 Can the pursuer rely on personal bar provisions under the Requirements of Writing (Scotland) Act 1995 to claim damages for loss of profits?

Ratio Decidendi

The verbal lease was invalid as it sought to create a real right in land and was not in writing as required by section 1(2)(b) of the Requirements of Writing (Scotland) Act 1995. The pursuer cannot rely on personal bar provisions for a real right in land. The pursuer has a real right in the chip shop equipment, which did not accede to the land, and is entitled to delivery or its value unless vindicated from the defender.

Court Disposition

Decree of absolvitor granted in respect of crave 2 (damages for lost profits); procedural hearing fixed to consider disposal of crave 1 (delivery of equipment) and expenses.

Orders

  • Repels pleas in law 2, 4, 5 and 6 for the pursuer
  • Sustains plea in law 4 for the defender