Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

(Not) Going Underground: Rectifying a Registered Deed of Conditions in PHG Developments Scot Limited (in Liquidation), Petr

Document Cited authorities 6 Cited in Related
DOI10.3366/elr.2021.0676
Published date01 January 2021
Date01 January 2021
Pages100-105
Author
INTRODUCTION

The remedy of judicial rectification was introduced to Scots law by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (the “1985 Act”).1 It deals inter alia with situations where a unilateral legal document fails to express accurately the intention of its grantor. In a recent Outer House case, a developer claimed that a deed of conditions, which it had imposed on an apartment site, was defective in precisely this manner.2 To complicate matters, the deed had since been registered in the Land Register of Scotland. It was also referred to in fifty-five split-off dispositions, each of which had now been registered in favour of the new proprietors of individual apartments. In his decision, Lord Tyre addressed two points which help to clarify the law in this area: first, the extent to which grantees of unilateral deeds are protected from judicial rectification where the deed in question has already been registered in the Land Register; and, second, the appropriate criteria for determining which of a grantor's intentions are relevant for the purpose of rectification and which are not.

 THE UNDERLYING DISPUTE

The background to this case is an ongoing dispute between the developers of two apartment sites on the Portobello seafront in Edinburgh: the “Kilns site” and the “Arcade”.3 The Kilns site was initially owned by The Kiln's Development Limited (“KDL”) but was subsequently acquired and developed by an associated company, PHG Developments Scot Limited (“the petitioner”). The Arcade was immediately adjacent to the Kilns site. It belonged to Lothian Amusements Limited, the fifty-seventh respondent to the petition (“the respondent”).4 Both sites were to share an underground car park in the basement of the Kilns site. Missives were therefore concluded between KDL and the respondent. The terms included the sale to the respondent of eighteen identified car parking spaces (the “Arcade spaces”) and the grant of appropriate servitude rights of vehicular and pedestrian access. Pedestrian access was to be granted through a doorway in the eastern wall of the car park. The wall itself was to be located on the boundary between the two sites. In addition, a deed of conditions was to be imposed over the Kilns site but under exception of the Arcade spaces.

Plans changed and the Arcade site did not proceed. The eastern wall of the car park was built entirely on the Kilns site. The deed of conditions which the petitioner imposed on the Kilns site also differed from the envisaged deed in two main respects. First, it provided for the individual apartment owners to have servitude rights of parking and access over the whole car park, including the Arcade spaces. Second, it provided for the eastern wall of the car park to be common property of the apartment owners. The Kilns site was subsequently completed and the fifty-five split-off dispositions were registered. The respondent accordingly resiled from the missives and brought an action for damages against KDL. Following a debate in the Outer House, Lord Doherty decided in favour of the respondent (i.e. the pursuer in that action): firstly, because KDL could no longer grant vacant possession of the Arcade spaces; and, secondly, because KDL could no longer grant pedestrian access through a wall which it no longer owned.5 In bringing the present action for rectification, the petitioner's stated purpose was to enable it to implement KDL's obligations under the missives. Due to the current COVID-19 pandemic, the debate was conducted...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT