J. A. Mactaggart & Co. v. Roemmele and Another [1907] ScotLR 907 (17 July 1907)

J. A. Mactaggart & Co. v. Roemmele and Another [1907] ScotLR 907 (17 July 1907)

Co-feuars are not barred by their or their predecessors' acquiescence in previous contraventions by others from enforcing building restrictions against a neighbouring feuar, where their interest to object is now greater or different. The right to enforce is not lost unless there is clear abandonment of the right, which was not established here.

Citation
[1907] ScotLR 907
Parties
Petitioner: J. A. Mactaggart & Company; Objector/appellant: Mrs E. E. Roemmele; Objector/appellant: William Baird
Jurisdiction
Scotland
Judgment Date
17 July 1907
Procedural Posture
Appeal (civil) / Inner House, First Division, Court of Session (appeal From Dean of Guild Court, Glasgow)
Outcome
Appeal sustained; interlocutor of the Dean of Guild recalled; petition dismissed.
Legal Topics
Building Restrictions, Enforcement of Title Conditions, Acquiescence, Co Feuars' Rights, Superior Vs. Vassal Interests
Property Law Real Estate Servitudes Building Restrictions Enforcement of Title Conditions Acquiescence Co Feuars' Rights Superior Vs. Vassal Interests

Case Brief

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Parties

J. A. Mactaggart & Company

Petitioner

Mrs E. E. Roemmele

Objector/appellant

William Baird

Objector/appellant

Procedural Posture

Appeal (civil) / Inner House, First Division, Court of Session (appeal From Dean of Guild Court, Glasgow)

Legal Issues

  1. 1 Whether co-feuars are barred by acquiescence from enforcing building restrictions against another co-feuar when they or their predecessors did not object to previous contraventions by others.
  2. 2 Whether the interest of a co-feuar to enforce restrictions differs from that of a superior.

Ratio Decidendi

Co-feuars are not barred by their or their predecessors' acquiescence in previous contraventions by others from enforcing building restrictions against a neighbouring feuar, where their interest to object is now greater or different. The right to enforce is not lost unless there is clear abandonment of the right, which was not established here.

Court Disposition

Appeal sustained; interlocutor of the Dean of Guild recalled; petition dismissed.

Orders

  • The appeal is allowed.
  • The interlocutor of the Dean of Guild is recalled.