TURCAN CONNELL (TRUSTEES) LIMITED AND THOMAS AITKEN CLARK IN THE CAUSE WEST LOTHIAN COUNCIL AGAINST TURCAN CONNELL (TRUSTEES) LIMITED AND THOMAS AITKEN CLARK [2021] ScotSAC Civ 11 (19 February 2021)

TURCAN CONNELL (TRUSTEES) LIMITED AND THOMAS AITKEN CLARK IN THE CAUSE WEST LOTHIAN COUNCIL AGAINST TURCAN CONNELL (TRUSTEES) LIMITED AND THOMAS AITKEN CLARK [2021] ScotSAC Civ 11 (19 February 2021)

Clause (SIXTH) of the feu disposition created a contractual right of pre-emption enforceable between the original parties and their successors, unaffected by the abolition of feudal tenure; the letter of 17 December 2015 did not constitute valid notice as it failed to specify the area for sale, thus did not trigger the pre-emption right.

Citation
[2021] ScotSAC Civ 11
Parties
Pursuer/respondent: West Lothian Council; Defender/appellant: Turcan Connell (Trustees) Limited; Defender/appellant: Thomas Aitken Clark
Jurisdiction
Scotland
Judgment Date
19 February 2021
Procedural Posture
Civil Appeal / Appeal From Sheriff Court Decision
Outcome
appeal refused
Legal Topics
Feudal Tenure Abolition, Pre Emption Rights, Contractual Interpretation, Title Conditions
Property Law Contract Law Feudal Tenure Abolition Pre Emption Rights Contractual Interpretation Title Conditions

Case Brief

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Parties

West Lothian Council

Pursuer/respondent

Turcan Connell (Trustees) Limited

Defender/appellant

Thomas Aitken Clark

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff Court Decision

Legal Issues

  1. 1 Whether Clause (SIXTH) of the feu disposition created a contractual right of pre-emption enforceable after abolition of feudal tenure
  2. 2 Whether the letter of 17 December 2015 constituted valid notice triggering pre-emption
  3. 3 Application of sections 82-84 of the Title Conditions (Scotland) Act 2003

Ratio Decidendi

Clause (SIXTH) of the feu disposition created a contractual right of pre-emption enforceable between the original parties and their successors, unaffected by the abolition of feudal tenure; the letter of 17 December 2015 did not constitute valid notice as it failed to specify the area for sale, thus did not trigger the pre-emption right.

Court Disposition

appeal refused

Orders

  • expenses of appeal awarded to respondent with sanction for senior counsel
  • expenses at first instance awarded to respondent with sanction for junior counsel