HOLMS & Anor v. Ashford Estates Ltd [2006] ScotSC 30 (14 February 2006)

HOLMS & Anor v. Ashford Estates Ltd [2006] ScotSC 30 (14 February 2006)

The defenders breached warrandice by conveying a parking space (42) that could not be used without access over space 43, which had already been disponed to a third party. The pursuers were unaware of this encumbrance at the time of disposition. The existence and exercise of the third party's rights over space 43 rendered the pursuers' servitude right ineffectual, amounting to eviction within the meaning of Scottish property law. The appropriate measure of damages is the diminution in value of the property, assessed at £15,000.

Citation
[2006] ScotSC 30
Parties
Pursuers: Robert Andrew Holms and Anne Clark Holms; Defenders: Ashford Estates Limited
Jurisdiction
Scotland
Judgment Date
14 February 2006
Procedural Posture
Civil Property (scotland) / Judgment After Proof (trial)
Outcome
Judgment for the pursuers
Legal Topics
Warrandice (warranty), Eviction (in Title), Servitude Rights, Encumbrances, Damages for Breach of Title Warranty
Property Law Conveyancing Warrandice (warranty) Eviction (in Title) Servitude Rights Encumbrances Damages for Breach of Title Warranty

Case Brief

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Parties

Robert Andrew Holms and Anne Clark Holms

Pursuers

Ashford Estates Limited

Defenders

Procedural Posture

Civil Property (scotland) / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the defenders breached warrandice by conveying a parking space (42) that could not be used without access over a subsequently disponed space (43)
  2. 2 Whether the pursuers suffered eviction within the meaning of Scottish property law
  3. 3 Quantum of damages for breach of warrandice

Ratio Decidendi

The defenders breached warrandice by conveying a parking space (42) that could not be used without access over space 43, which had already been disponed to a third party. The pursuers were unaware of this encumbrance at the time of disposition. The existence and exercise of the third party's rights over space 43 rendered the pursuers' servitude right ineffectual, amounting to eviction within the meaning of Scottish property law. The appropriate measure of damages is the diminution in value of the property, assessed at £15,000.

Court Disposition

Judgment for the pursuers

Orders

  • Defenders to pay the pursuers £15,000 sterling with interest at 8% per annum from the date of citation until payment
  • Certifies the cause as suitable for the employment of junior counsel