CHRISTOPHER HUGO NIALL BURGESS-LUMSDEN AND ANOTHER v. ABERDEENSHIRE COUNCIL [2009] ScotSC 93 (03 April 2009)

CHRISTOPHER HUGO NIALL BURGESS-LUMSDEN AND ANOTHER v. ABERDEENSHIRE COUNCIL [2009] ScotSC 93 (03 April 2009)

The pursuers' right of reversion and any claim to the proceeds of sale prescribed prior to the coming into force of section 86 of the Title Conditions (Scotland) Act 2003, either by operation of positive prescription (purchasers' title unchallengeable after 10 years) or by long negative prescription (20 years for personal rights). There was no trust in respect of the proceeds, and section 86 of the 2003 Act does not revive prescribed rights. The pursuers' averments are irrelevant and lacking in specification; the action must be dismissed.

Citation
[2009] ScotSC 93
Parties
Pursuer: Christopher Hugo Niall Burgess-Lumsden and David Paton as Trustees and Executors-Nominate of the late the Right Honourable Michael Canning William John Keith, Thirteenth Earl of Kintore; Defender: Aberdeenshire Council
Jurisdiction
Scotland
Judgment Date
03 April 2009
Procedural Posture
Civil / Judgment After Debate on Relevancy
Outcome
Action dismissed
Legal Topics
Right of Reversion, School Sites, Prescription and Limitation, Trust Obligations, Statutory Interpretation
Property Law Trusts and Estates Prescription Law Right of Reversion School Sites Prescription and Limitation Trust Obligations Statutory Interpretation

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Parties

Christopher Hugo Niall Burgess-Lumsden and David Paton as Trustees and Executors-Nominate of the late the Right Honourable Michael Canning William John Keith, Thirteenth Earl of Kintore

Pursuer

Aberdeenshire Council

Defender

Procedural Posture

Civil / Judgment After Debate on Relevancy

Legal Issues

  1. 1 Whether the pursuers' right of reversion or claim to proceeds under the School Sites Act 1841 and Title Conditions (Scotland) Act 2003 is extinguished by prescription
  2. 2 Whether the defenders held the proceeds of sale in trust for the pursuers
  3. 3 Whether section 86 of the Title Conditions (Scotland) Act 2003 applies

Ratio Decidendi

The pursuers' right of reversion and any claim to the proceeds of sale prescribed prior to the coming into force of section 86 of the Title Conditions (Scotland) Act 2003, either by operation of positive prescription (purchasers' title unchallengeable after 10 years) or by long negative prescription (20 years for personal rights). There was no trust in respect of the proceeds, and section 86 of the 2003 Act does not revive prescribed rights. The pursuers' averments are irrelevant and lacking in specification; the action must be dismissed.

Court Disposition

Action dismissed

Orders

  • Sustains the defenders' first plea-in-law and dismisses the action
  • Certifies the debate as suitable for the employment of junior counsel