PETITION OF PHG DEVELOPMENTS FOR RECTIFICATION OF DEED OF CONDITIONS [2020] ScotCS CSOH_58 (09 June 2020)

PETITION OF PHG DEVELOPMENTS FOR RECTIFICATION OF DEED OF CONDITIONS [2020] ScotCS CSOH_58 (09 June 2020)

PHG pled a relevant case for rectification under section 8(1)(b) as the Deed of Conditions may not have expressed its intention regarding rights over the Arcade parking spaces and the doorway. Section 8(3A) does not bar rectification in these circumstances as it applies only to rectification of documents other than the original. Consent of apartment owners is not required for rectification of the Deed of Conditions alone. The case proceeds to proof before answer to determine the merits.

Citation
[2020] ScotCS CSOH_58
Parties
Petitioner: PHG Developments Scot Limited (in liquidation); Fifty Seventh Respondent: Lothian Amusements Limited; Respondent: Danvic Scotland Limited; Respondent: Keeper of the Registers of Scotland; Respondents: First to Fifty-Sixth and Fifty-Eighth Respondents (apartment owners)
Jurisdiction
Scotland
Judgment Date
09 June 2020
Procedural Posture
Petition for Rectification of Deed / Procedure Roll Debate on Relevancy of Averments; Proof Before Answer Allowed
Outcome
Proof before answer allowed; preliminary pleas standing; further procedure to be discussed; no final order for rectification at this stage.
Legal Topics
Rectification of Deeds, Real Burdens, Servitude Rights, Common Property, Retrospective Effect of Rectification, Consent Under Section 8(3 A) Law Reform (miscellaneous Provisions) (scotland) Act 1985
Property Law Land Registration Conveyancing Rectification of Deeds Real Burdens Servitude Rights Common Property Retrospective Effect of Rectification +1 more

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Parties

PHG Developments Scot Limited (in liquidation)

Petitioner

Lothian Amusements Limited

Fifty Seventh Respondent

Danvic Scotland Limited

Respondent

Keeper of the Registers of Scotland

Respondent

First to Fifty-Sixth and Fifty-Eighth Respondents (apartment owners)

Respondents

Procedural Posture

Petition for Rectification of Deed / Procedure Roll Debate on Relevancy of Averments; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the Deed of Conditions failed to express the grantor's intention under section 8(1)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
  2. 2 Whether rectification can be granted without the consent of apartment owners under section 8(3A)
  3. 3 Whether PHG pled a relevant case for rectification

Ratio Decidendi

PHG pled a relevant case for rectification under section 8(1)(b) as the Deed of Conditions may not have expressed its intention regarding rights over the Arcade parking spaces and the doorway. Section 8(3A) does not bar rectification in these circumstances as it applies only to rectification of documents other than the original. Consent of apartment owners is not required for rectification of the Deed of Conditions alone. The case proceeds to proof before answer to determine the merits.

Court Disposition

Proof before answer allowed; preliminary pleas standing; further procedure to be discussed; no final order for rectification at this stage.

Orders

  • Case put out by order for discussion of further procedure and outstanding matters.
  • Questions of expenses reserved.