Mohammed Ameed Mirza Against Mrs Fozia Aslam Or Salim And Messrs Mellicks, Solicitors
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lady Dorrian,Lady Paton |
| Judgment Date | 03 June 2014 |
| Neutral Citation | [2014] CSIH 51 |
| Court | Court of Session |
| Date | 03 June 2014 |
| Published date | 03 June 2014 |
| Docket Number | CA50/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| |
|
| [2014] CSIH 51 |
| Lady Paton Lady Dorrian Lord McGhie
| CA50/11 OPINION OF LADY PATON in the reclaiming motion
in the cause
MOHAMMED AMEED MIRZA Pursuer and reclaimer;
against
MRS FOZIA ASLAM or SALIM Defender and Respondent;
and
MESSRS MELLICKS, Solicitors Third Party: _______________
|
Pursuer and reclaimer: JJ Mitchell QC; Beveridge & Kellas SSC (for Jeffrey Aitken, Solicitors, Glasgow)
Defender and respondent: Martin QC, Skinner; Drummond Miller LLP (for Brunton Miller, Solicitors, Glasgow)
Third party: Paterson; Dundas & Wilson
3 June 2014
Erroneous land title: retroactive rectification and damages for wrongful interdict
[1] In 1999, 398 Cumbernauld Road in Glasgow consisted of a shop and an L-shaped yard. The owner wished to grant a 21-year lease of the shop (but not the yard) to Mrs Suriya Khan. By mistake, the schedule to the lease referred to the leased premises as comprising both the shop and the yard. The mistake went unnoticed, and the lease was duly registered in the land register.
[2] In 2002, Mrs Salim (the defender in this action) wished to have the lease assigned to her. She instructed her lawyer, of the firm of Messrs Holmes McKillop. By letter dated 22 February 2002 her lawyer advised her that the landlord was making it clear that the yard was not included in the lease. He also enclosed a report by chartered surveyors, Spiers Gumley, which stated at page 5 that if the yard were to be included in the let premises, that might lead to expense and liabilities.
[3] On 1 March 2002, the defender took entry to the premises, prior to missives being concluded. By letter dated 14 March 2002 her lawyer advised her that her title appeared to include the yard after all. He wrote:
“I enclose a copy of a letter from [the landlord’s] solicitors, Archibald Sharp & Son which says that their clients are leasing only the shop and not any adjacent ground. However I consider Archibald Sharp & Son’s statement to be incorrect. In terms of the lease, the subjects leased are the whole premises registered under the landlord’s title. I enclose a copy of the plan showing the subjects which are registered under the landlord’s title. Those subjects are the area of ground shown tinted pink on the plan. Thus the lease includes the shop and adjacent ground. I would suggest that you do not raise this with the landlord at the moment in case he withdraws his co-operation to the assignation but I draw it to your attention in case you wish to raise the matter with the landlord at some future date, particularly since the billboard appears to be erected on the adjacent ground.”
There was no suggestion that the defender had not received or understood this letter. Missives relating to the lease were ultimately concluded on 18 April 2002.
[4] In 2003, Mr Mirza (the pursuer) became the owner of the whole plot, including both shop and yard. He received rent from the defender. He also received rent from advertising companies in respect of the billboard erected on the yard.
[5] In 2006, the billboard contract came to an end. The pursuer then sought planning permission in order to build flats and a shop on the yard. The defender did not object to the planning application. Planning permission was duly granted. However on 28 September 2006 the defender’s solicitors wrote to the pursuer’s solicitors informing them that the yard was part of the subjects leased to the defender, and calling upon the pursuer to desist from the construction of the new premises until the end of the lease in 2020. The pursuer’s agents replied that the yard was not part of the subjects leased.
[6] In late 2006, construction work began in the yard. The solicitors continued to correspond. The parties spoke to each other about the possibility that the new premises might be leased to the defender. The defender’s ultimate position was that she could not afford the rent asked, and in any event she was not obliged to pay rent for subjects which were already part of her lease.
[7] In February 2008, when the new building was nearly complete, the defender raised an action in Glasgow Sheriff Court seeking (i) declarator that her lease included both the shop and the yard, and (ii) interdict against the pursuer from encroaching on the premises leased to her and in particular from “entering there, erecting buildings there or opening and operating shop unit premises there”. The defender founded upon the terms of her lease which referred to a land certificate plan showing both shop and yard leased to the defender. She also averred that:
“ … Prior to [her] taking on the tenant’s interest in said lease, she with her husband and her parents were shown the extent of the shop premises being the shop itself and the adjoining ground by Mr Khan [Mrs Suriya Khan’s husband]. The [defender] relied on the information given by Mr Khan in determining whether to take on the tenant’s interest in said lease. Neither the pursuer or her husband or parents ever met Suriya Khan or had any discussions with her. Subsequently the pursuer appointed law agents to carry out the necessary conveyance. The law agents’ advice confirmed the information imparted by Mr Khan, namely that the tenant’s interest in said lease comprised the shop itself and the adjoining ground. The [defender] relied on this advice in determining whether to take on the tenant’s interest in said lease.”
[8] The pursuer for his part lodged defences and a counterclaim seeking declarator that the premises leased comprised the shop alone. Failing such declarator, he sought rectification of the lease and the land register as they did not properly reflect the relevant parties’ agreement. He averred that the defender had never exercised possession of the yard to any extent (a fact found proved by the sheriff: finding-in-fact 19 of his judgment dated 18 August 2009, page 77 of the appendix); that she had discussed the acquisition of the lease as being restricted to the shop when she spoke to Suriya Khan in 2002; that she had always been aware that the subjects let comprised only the shop; and that the law agents she referred to were Messrs Holmes McKillop who had not confirmed that the tenant’s interest in said lease comprised the shop itself and the adjoining ground. The pursuer called upon the defender to produce her law agents’ file, as previous requests for the file had been refused.
[9] The defender then sought interim interdict. A hearing took place on 27 February 2008. The sheriff granted interim interdict. The pursuer subsequently added averments in the sheriff court action that the interdict altered the status quo (as the defender was well aware) by –
“i) interfering with the continued exercise by the [pursuer] of his rights as proprietor in possession; and ii) halting the building works which had been ongoing for over a year. As a result of the interdict, the [pursuer] will suffer loss and damage which has yet to be quantified. He reserves his right to seek damages against [the defender] … "
[10] On 16 May 2008, the interim interdict was varied to permit some fitting-out work in the newly-built premises. On 19 June 2008 the sheriff heard the pursuer’s motion for recall of the interim interdict. The pursuer contended that there was no need for rectification of the lease and the land register; esto there was such a need, rectification (in the pursuer’s favour) was likely to be granted. Having heard submissions, the sheriff refused to recall the interim interdict. He concluded inter alia as follows:
“ … there is no dispute that at the time [the defender] acquired her interest, on the face of the land certificate [with the lease attached] the tenant’s interest extended to the shop and the adjacent land … I consider that on a proper construction the lease clearly includes both the shop and the adjacent land as shown on the title plans to the two land certificates … I do not consider that [the pursuer] is at present able to argue that he has a competing title. His land certificate GLA 117001 … clearly shows that the whole of the subjects have been leased to the pursuer. The very fact that rectification is sought is a recognition that, as matters presently stand, it is [the defender] who has title to possess …
In summary I refused to recall the interim interdict because I considered that as the pleadings presently stand, [the defender] has a prima facie case both in relation to the principal action and the counterclaim and in respect of each has reasonable prospects of success …”.
[11] A proof before answer took place in the sheriff court on 12 to 14 November 2008, 2, 5, and 6 March 2009, and 14 to 17 July 2009. On 27 July 2009 the parties had a meeting. They again discussed the possibility of leasing the newly-built premises to the defender or her family. No agreement was reached.
[12] By judgment dated 18 August 2009, the sheriff held inter alia that the lease and the land register erroneously showed both the shop and the yard as leased to the defender, whereas the correct position was a lease of the shop alone. In addition, he made a finding-in-fact-and-law 4 that the defender did not qualify within the group of persons protected from rectification by reason of their reliance on the title deed as it originally stood (section 9(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, quoted in paragraph [17] below). He recalled the interim interdict and ordered that the lease and the land register be rectified without any modification in relation to date in terms of section 9(4) and (5) of the 1985 Act. Rectification duly took place. The pursuer was then able to occupy and use the new building, including the shop, all of which had remained unused for about 18 months.
[13] On 1 April 2010 the defender ceased trading in her shop. With the pursuer’s consent, she sub-let it.
[14] In 2011 the pursuer raised the...
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