Sheltered Housing Management v. Cairns & Ors [2002] ScotCS 258 (11 September 2002)

Sheltered Housing Management v. Cairns & Ors [2002] ScotCS 258 (11 September 2002)

None of the respondents materially relied on the omission of the service charge provision at the time of purchase; all assumed the Deed included such a provision. The omission was a clerical error, and rectification to include Clause (FOURTH) (Four) is necessary to reflect the parties' original intention and restore the enforceability of the management scheme and service charge, which is reasonable and essential for the functioning of the sheltered housing complex.

Citation
[2002] ScotCS 258
Parties
Petitioner: Sheltered Housing Management Limited; Respondent: Miss Isobel Cairns and Others
Jurisdiction
Scotland
Judgment Date
11 September 2002
Procedural Posture
Petition for Rectification of a Document / Opinion Following Proof Before Answer
Outcome
Petition granted; pleas-in-law for respondents repelled.
Legal Topics
Rectification of Deeds, Real Burdens, Sheltered Housing Management, Service Charges, Law Reform (miscellaneous Provisions)(scotland) Act 1985
Property Law Contract Law Rectification of Deeds Real Burdens Sheltered Housing Management Service Charges Law Reform (miscellaneous Provisions)(scotland) Act 1985

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Parties

Sheltered Housing Management Limited

Petitioner

Miss Isobel Cairns and Others

Respondent

Procedural Posture

Petition for Rectification of a Document / Opinion Following Proof Before Answer

Legal Issues

  1. 1 Whether the Deed of Conditions should be rectified to include an omitted clause providing for a management scheme and service charge.
  2. 2 Whether any respondent is protected under section 9 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985 due to reliance on the omission.

Ratio Decidendi

None of the respondents materially relied on the omission of the service charge provision at the time of purchase; all assumed the Deed included such a provision. The omission was a clerical error, and rectification to include Clause (FOURTH) (Four) is necessary to reflect the parties' original intention and restore the enforceability of the management scheme and service charge, which is reasonable and essential for the functioning of the sheltered housing complex.

Court Disposition

Petition granted; pleas-in-law for respondents repelled.

Orders

  • Rectification of the recorded Deed of Conditions by addition of the omitted Clause (FOURTH) (Four) as set out in Appendix 1 to the Minute of Agreement.