Black v. Duncan & Anor [2011] ScotSC 30 (17 May 2011)

Black v. Duncan & Anor [2011] ScotSC 30 (17 May 2011)

Consent for the erection of the fence was not given by the pursuer; the defenders breached the pursuer's rights as co-proprietor. Use of the drying green for dogs' exercising and toileting is not ordinary or reasonable and constitutes nuisance. The pursuer is entitled to interdicts and removal orders.

Citation
[2011] ScotSC 30
Parties
Pursuer: Mrs Elsie Black; Defender: Frank Duncan; Defender: Mrs Duncan
Jurisdiction
Scotland
Judgment Date
17 May 2011
Procedural Posture
Civil / Final Judgment
Outcome
judgment for pursuer
Legal Topics
Common Property, Co Ownership, Consent, Interdict, Nuisance, Removal of Structures
Property Law Nuisance Common Property Co Ownership Consent Interdict Removal of Structures

Case Brief

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Parties

Mrs Elsie Black

Pursuer

Frank Duncan

Defender

Mrs Duncan

Defender

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether the defenders had consent to erect a fence on common property
  2. 2 Whether the use of the drying green for dogs constitutes nuisance
  3. 3 Whether the pursuer is entitled to interdict and removal orders

Ratio Decidendi

Consent for the erection of the fence was not given by the pursuer; the defenders breached the pursuer's rights as co-proprietor. Use of the drying green for dogs' exercising and toileting is not ordinary or reasonable and constitutes nuisance. The pursuer is entitled to interdicts and removal orders.

Court Disposition

judgment for pursuer

Orders

  • Interdicts defenders from erecting fencing on the common drying green without prior permission of all heritable proprietors.
  • Ordains defenders to remove the fencing within forty-two days; failing which pursuer may remove it.