Murray's Trustees v. trustees of st margaret's convent and another [1906] ScotLR 43_774 (19 July 1906)

Murray's Trustees v. trustees of st margaret's convent and another [1906] ScotLR 43_774 (19 July 1906)

There was no mutuality of rights and obligations in the feu charters to enable the pursuers to enforce building restrictions against the defenders. The servitude prohibiting 'unseemly' buildings was too vague and indefinite to constitute a valid permanent real burden affecting singular successors. Such restrictions must be definite and enter the title; personal contracts or ambiguous terms do not suffice.

Citation
[1906] ScotLR 43_774
Parties
Pursuer: Mrs Catherine Isabella Murray and Patrick Blair, Trustees of David Murray; Defender: Agnes Dunn and others, Trustees of St Margaret's Convent; Defender: George Alexander Wilson
Jurisdiction
Scotland
Judgment Date
19 July 1906
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary
Outcome
defenders assoilzied (absolved) from all conclusions of the summons
Legal Topics
Building Restrictions, Mutuality of Obligations, Servitude Validity, Enforcement of Real Burdens, Feuing Plan, Restriction on Building, Definition of 'unseemly' Buildings
Property Law Real Burdens Servitude Building Restrictions Mutuality of Obligations Servitude Validity Enforcement of Real Burdens Feuing Plan +2 more

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Parties

Mrs Catherine Isabella Murray and Patrick Blair, Trustees of David Murray

Pursuer

Agnes Dunn and others, Trustees of St Margaret's Convent

Defender

George Alexander Wilson

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary

Legal Issues

  1. 1 Are building restrictions in feu charters mutually enforceable between feuars?
  2. 2 Is a servitude prohibiting 'unseemly' buildings valid and enforceable as a real burden?
  3. 3 Does the phrase 'unseemly description' provide a sufficiently definite standard for a permanent servitude?

Ratio Decidendi

There was no mutuality of rights and obligations in the feu charters to enable the pursuers to enforce building restrictions against the defenders. The servitude prohibiting 'unseemly' buildings was too vague and indefinite to constitute a valid permanent real burden affecting singular successors. Such restrictions must be definite and enter the title; personal contracts or ambiguous terms do not suffice.

Court Disposition

defenders assoilzied (absolved) from all conclusions of the summons

Orders

  • Lord Ordinary's interlocutor recalled
  • Action dismissed against all defenders