Blackburn v. Cowie [2006] ScotSC 77 (24 May 2006)

Blackburn v. Cowie [2006] ScotSC 77 (24 May 2006)

A permanent trustee does not require to be infeft to raise an action of ejection against a person with no right to occupy the property. Once the court has dispensed with the spouse's consent to sale under Section 40(1) of the Bankruptcy (Scotland) Act 1985, a further court order under Section 40(3) for vacant possession is not required unless the spouse initially consented and then refuses to vacate.

Citation
[2006] ScotSC 77
Parties
Pursuer: Eileen Blackburn; Defender: Elizabeth Cowie
Jurisdiction
Scotland
Judgment Date
24 May 2006
Procedural Posture
Appeal (stated Case) From Summary Cause Action for Recovery of Heritable Property / Judgment on Appeal
Outcome
Appeal refused
Legal Topics
Sequestration, Trustee's Title to Sue, Recovery of Possession, Removing Vs Ejection, Matrimonial Homes, Vacant Possession, Statutory Interpretation
Bankruptcy Law Property Law Civil Procedure Sequestration Trustee's Title to Sue Recovery of Possession Removing Vs Ejection Matrimonial Homes +2 more

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Parties

Eileen Blackburn

Pursuer

Elizabeth Cowie

Defender

Procedural Posture

Appeal (stated Case) From Summary Cause Action for Recovery of Heritable Property / Judgment on Appeal

Legal Issues

  1. 1 Does a permanent trustee require to be infeft (have recorded title) to raise an action of ejection against a person with no right to occupy?
  2. 2 Is a further court order required under Section 40(3) of the Bankruptcy (Scotland) Act 1985 to obtain vacant possession after authority to sell has been granted under Section 40(1)?

Ratio Decidendi

A permanent trustee does not require to be infeft to raise an action of ejection against a person with no right to occupy the property. Once the court has dispensed with the spouse's consent to sale under Section 40(1) of the Bankruptcy (Scotland) Act 1985, a further court order under Section 40(3) for vacant possession is not required unless the spouse initially consented and then refuses to vacate.

Court Disposition

Appeal refused

Orders

  • Answers the first and second questions in the Stated Case in the negative
  • Refuses the appeal