John Nicholas Andrew Lubbock+robert Cheyne Turcan As Trustees Of The Elliot Of Harwood Trust V. Robin Feakins+the Keeper Of The Registers Of Scotland
| Jurisdiction | Scotland |
| Judge | Sheriff D. Kelly |
| Court | Sheriff Court |
| Date | 17 February 2012 |
| Docket Number | AJ99/10 |
| Published date | 21 February 2012 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT JEDBURGH
Court Ref: AJ99/10
JUDGMENT OF
Sheriff DANIEL KELLY QC
in the cause
JOHN NICHOLAS ANDREW LUBBOCK and ROBERT CHEYNE TURCAN as Trustees of the ELLIOT OF HARWOOD TRUST
PURSUERS
against
(FIRST) ROBIN FEAKINS and (SECOND) THE KEEPER OF THE REGISTERS OF SCOTLAND
DEFENDERS
________________________
Act: Turcan Connell, Solicitors, Edinburgh; Alt: J.A. Brown, Advocate, Smail & Ewart, Solicitors, Biggar.
JEDBURGH 17th February 2012
The Sheriff, having resumed consideration of the case:
FINDS IN FACT:
1. Clocker Lodge, otherwise known as Harwood Lodge and The Clocker and referred to herein as "the Lodge", with its surrounding garden ground extending to about 662.2 square metres, lies at Harwood, near Bonchester Bridge, Hawick.
2. A Minute of Agreement was entered into (registered in the Books of Council and Session on 14th February 1997) whereby the Trustees of the Elliot of Harwood Trust ("the Trustees") awarded Georgina Lauder the liferent use of the Lodge, she having gained entry to it in July 1996.
3. In 2002 Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock, the heritable proprietors of the Harwood Estate, decided to sell the Estate under exception of Harwood Mill and the Lodge.
4. In 2002 FPD Savilles, Estate Agents, received instructions to market and sell Harwood House and its Estate under exception of Harwood Mill and the Lodge, the former being retained as the residence of Andrew Lubbock and the latter as the residence of Miss Lauder. Savilles went about marketing the Estate under exception of Harwood Mill and the Lodge. Savilles prepared draft Sales Particulars and a computerised plan of the Estate for sale. The draft Sales Particulars contained a Summary of Accommodation narrating Lots 1 to 8 for sale as a whole or in lots. Fifteen properties were named in the Summary of Accommodation but neither Harwood Mill nor the Lodge were listed there.
5. In 2002 the Trustees and the other heritable proprietors gave instructions to their solicitors, Messrs. Turcan Connell, to sell the Estate under exception of Harwood Mill and the Lodge to Robin Feakins. The solicitors for the Trustees and the other heritable proprietors went about conveying the Estate under exception of Harwood Mill and the Lodge to Robin Feakins.
6. By fax dated 15th August 2002 Messrs. Turcan Connell expressly advised Messrs. Smail & Ewart, the solicitors for Mr Feakins, that "Clocker Lodge" and Harwood Mill were not to be included in the subjects to be sold. Paragraph 5 stated:
"Clocker Lodge, Harwood was conveyed by Andrew Lubbock's 1991 Trust Trustees to the Elliot of Harwood Trust by Disposition recorded 2nd October 1996. Clocker Lodge and Harwood Mill are not to be included in the sale of the Estate."
7. Mr Feakins knew the Lodge as Harwood Lodge. A sign displaying that name was affixed to its front gate. He had been informed that the Lodge was occupied by the former housekeeper to Baroness Elliot as a liferenter but otherwise believed that it was within the subjects that he was buying.
8. By Missives dated 18th July 2002 and 29th and 30th August 2002 the Trustees and the other heritable proprietors (therein designed as "Andrew Lubbock and Others") agreed to sell and Mr Feakins agreed to purchase the parts of Harwood Estate described in the Missives and shown on a plan annexed to the Missives. The Lodge lay under the red line on the Plan annexed to the Missives and was included in the subjects which were agreed to be conveyed. The word "Lodge" was within the red boundary on the Plan and related to the Lodge.
9. Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock executed a Disposition in favour of Robin Feakins relating to Harwood Estate as therein described as being delineated and coloured red on the plan annexed, which Disposition was registered in the Land Register of Scotland on 19th December 2002. The Lodge lay under the red line on the Plan annexed to the Disposition and was included in the subjects conveyed. The word "Lodge" was within the red boundary and denotes the Lodge.
10. In the Land Certificate Title Number ROX4028 the Lodge and the road adjacent to it were plotted as being within the subjects which were transferred. The Land Register for Scotland accurately recorded the unintentional conveyance of the Lodge by the Trustees to Mr Feakins.
11. The Trustees understood that the Lodge had been excluded from the sale of the Estate and that they continued to own it. Since 1997 and continuing thereafter notwithstanding the sale the Trustees have insured the Lodge and have paid for repairs of and maintenance to the house. When he acquired the Estate Mr Feakins took over the insurance policy for the whole Estate which extended to the Lodge and, in the belief that he owned it, continued to insure the Lodge. In 2003 Mr Feakins took legal advice and thereafter removed the Lodge from the insurance cover when advised that he was under no obligation in terms of a liferent to insure it. In November 2009 Mr and Mrs. Feakins called at a mutually arranged time on Miss Lauder. During the discussions Mr Feakins told Miss Lauder that he owned the Lodge. Until that visit Miss Lauder had thought that the property was owned by the Trustees and that she occupied the Lodge by virtue of a liferent agreed with them. When the Trustees learnt from this visit that ownership of the Lodge was in issue their solicitors took the matter up with Mr Feakins' solicitors. Since his visit in 2009 Mr Feakins has again insured the Lodge. Mr Feakins has taken no steps to disturb Miss Lauder's occupation of the Lodge.
12. Mr Feakins lives in Harwood House and he and his family farm the Estate. The road outside the Lodge, which is the only access into Harwood, is in daily use for that purpose. The hedgerows on either side of the Estate roads are maintained by Mr Feakins' family.
FINDS IN FACT AND LAW:
1. The subjects in respect of which Mr Feakins is the registered proprietor identified in Land Certificate Title Number ROX4028 include the Lodge.
2. The subjects of which Mr Feakins is in possession at Harwood Estate include the Lodge.
THEREFORE:
1. Upholds the First Defender's second and third Pleas-in-Law and assoilzies the First Defender.
2. Finds the Pursuers liable to the First Defender in respect of the expenses of the action and certifies the cause as suitable for the instruction of Junior Counsel.
NOTE
The issue
(1) These proceedings concern whether or not a house was transferred in the sale of an estate, a matter not raised at the time nor even shortly afterwards, it not being until some years later that the uncertainty as to its ownership emerged. The Trustees seek to have the matter resolved by craving a declarator that the subjects were not included in the property transferred and an order that the Land Register be "rectified" accordingly. The Keeper of the Registers of Scotland did not enter the proceedings.
(2) It is worth quoting the terms of the Declarator which is sought, not least since it is a substantial addition that is proposed to be made to the Disposition in length, in import and in incidental arrangements:
"For declarator that the subjects known as Clocker Lodge, comprising ALL AND WHOLE the area of ground in the County of Roxburgh shown delineated in red on the plan annexed and signed as relative to the Disposition by the trustees of Andrew Lubbock's 1991 Trust in favour of the then trustees of The Elliot of Harwood Trust dated 16th and 25th September 1996 and recorded in the Division of the General Register of Sasines for the County of Roxburgh on 2nd October 1996, which area of ground formed part of the subjects described in the Disposition by Thomas Robert Barnewall Elliot of Clifton in favour of William Elliot dated 8th May and recorded in the Division of the General Register of Sasines for the County of Roxburgh on 11th June both 1924; together with (ONE) the dwellinghouse known as and forming Clocker Lodge, Harwood, and the whole other buildings and erections on the said area of ground, and the heritable fixtures and fittings therein and thereon; (TWO) a heritable and irredeemable servitude right of access to and egress for pedestrian and vehicular traffic to the subjects over the road marked "ACCESS ROAD" on the plan annexed and signed as relative to the said Disposition by the trustees of Andrew Lubbock's 1991 Trust, and over the entrance way leading therefrom; (THREE) a heritable and irredeemable servitude right to use, maintain, repair and if necessary replace the septic tank shown marked "Septic Tank" on the said plan, and any soakaway and outfall drains relative thereto with all necessary rights of access thereto subject to making good any surface damage caused by the exercise of the said rights; (FOUR) the whole parts, privileges and pertinents belonging or effeiring to the subjects; and (FIVE) the whole right, title and interest of the said trustees of Andrew Lubbock's 1991 Trust present and future, therein and thereto, were not included in the property conveyed by the Disposition by the Pursuers and others in favour of the First Defender registered in the Land Register of Scotland on 19th December 2002. Title number ROX4028."
A further point emerges, namely that the Trustees do not seek to assert ownership over the road next to the Lodge but rather seek a declarator that they have excluded (and thereby retained) a servitude right of access over it.
The proceedings
(3) The action called before me for Proof at Jedburgh Sheriff Court. Advantage was taken of time available one afternoon to conduct a very wet site visit (involving having to halt en route for flooded roadways to be drained sufficiently to permit a watery passage). The issues in the case require to be resolved through consideration of what the parties agreed to transfer and did transfer rather than from how the property lies in...
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