MacRobert v Cahill [2006] ScotCS CSIH_26 (24 May 2006)

MacRobert v Cahill [2006] ScotCS CSIH_26 (24 May 2006)

The appellant's occupation of the property was merely tolerated by the respondent pending payment of estate obligations; no enforceable arrangement existed granting him a right to remain. As a residuary legatee, the appellant had no right to the property until obligations were discharged. No notice to quit was required. The sheriff's findings were justified and the appeal was refused.

Citation
[2006] ScotCS CSIH_26
Parties
Pursuer and Respondent: David J. C. MacRobert, Solicitor as judicial factor on the estate of the late Thomas Peter Cahill; Defender and Appellant: James William Cahill
Jurisdiction
Scotland
Judgment Date
24 May 2006
Procedural Posture
Appeal From Sheriff Court (removing Action) / Appeal Judgment
Outcome
appeal refused; sheriff's interlocutor adhered to
Legal Topics
Removal of Occupant, Rights of Residuary Legatee, Judicial Factor Powers, Arrangement for Occupation, Notice to Quit, Personal Bar
Property Law Succession Law Civil Procedure Removal of Occupant Rights of Residuary Legatee Judicial Factor Powers Arrangement for Occupation Notice to Quit +1 more

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Parties

David J. C. MacRobert, Solicitor as judicial factor on the estate of the late Thomas Peter Cahill

Pursuer and Respondent

James William Cahill

Defender and Appellant

Procedural Posture

Appeal From Sheriff Court (removing Action) / Appeal Judgment

Legal Issues

  1. 1 Whether the appellant occupied the property under an enforceable arrangement with the respondent
  2. 2 Whether the appellant, as residuary legatee, had a right to occupy the property prior to discharge of estate obligations
  3. 3 Whether a notice to quit was required before raising the removing action

Ratio Decidendi

The appellant's occupation of the property was merely tolerated by the respondent pending payment of estate obligations; no enforceable arrangement existed granting him a right to remain. As a residuary legatee, the appellant had no right to the property until obligations were discharged. No notice to quit was required. The sheriff's findings were justified and the appeal was refused.

Court Disposition

appeal refused; sheriff's interlocutor adhered to

Orders

  • Refusal of appeal
  • Adherence to interlocutor of 2 March 2005 granting decree for removing against the appellant