BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Scottish Court of Session Decisions |
||
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sheltered Housing Management v. Cairns & Ors [2002] ScotCS 258 (11 September 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/258.html Cite as: [2002] ScotCS 258 |
[New search] [Help]
OUTER HOUSE, COURT OF SESSION |
|
P262/01
|
OPINION OF LORD NIMMO SMITH in Petition of SHELTERED HOUSING MANAGEMENT LIMITED Petitioners; against MISS ISOBEL CAIRNS AND OTHERS Respondents: for Rectification of a document ________________ |
Petitioners: Clark; Brodies, W.S.
Respondents: Joughlin; Balfour & Manson
11 September 2002
"(ONE) The First Party [Barratt] shall be entitled to sell to such persons as they deem fit all and any of the said houses, provided always that the prospective purchaser of said house shall, in the case of a female, have attained the age of fifty, or in the case of a male person, attained the age of fifty five, subject to the first party being able to sell all or any such houses to such deserving persons as they shall, in their sole discretion, see fit.
(TWO) The First Party shall grant title of each individual Sheltered Housing Dwelling to such purchasers by way of Feu Disposition subject to conditions contained in a Deed of Conditions to be recorded by the first party in terms of appendix 1 to this agreement.
(THREE) The First Party shall retain the Superiority of the said subjects.
(FOUR) The First Party shall grant a Disposition without any consideration to the Second Party [SHM] of the Wardens flat, Wardens office and three guest bedrooms. The Second Party shall be bound to reconvey without any consideration therefore Wardens flat, Wardens office, three guest bedrooms and all rights associated therewith, to the First Party or such person as shall be nominated by the First Party in the event of termination of this agreement. Further Feu Disposition to be granted to Second Party shall contain a right of pre-emption in favour of the First Party and that for no consideration or price. Each party to be responsible for their own legal and other expenses in connection herewith.
(FIVE) The First Party may require the Second Party at any time to accept ownership of the dominium directum of the whole development and the dominium plenum of all such parts of said scheme as may from time to time be in the ownership of the First Party excluding therefrom any flat or house and garden area effeiring thereto.
(SIX) The Second Party shall provide a full warden service as and from Fifteenth May, Nineteen hundred and eighty five, said warden service to comprise as follows:-
(a) The Second Party shall employ a husband and wife or such other suitable persons as joint wardens upon the terms and conditions inter alia set out in appendices 1 and 2 to this Minute of Amendment. The Second Party shall ensure that said wardens provide all services provided for in said Deed of Conditions.
(b) The Second Party shall, on or before Fifteenth June, Nineteen hundred and eighty five employ a relief warden who shall live within a two mile radius of said houses. Said relief warden shall provide at all times the services of the wardens when either or both wardens are not available. The Second Party shall ensure that the residence of the relief warden is at all times connected to the alarm system installed by the first parties in said houses. The Second Party reserves the right to alter the management and staffing of the scheme provided a comparable service is maintained all in forms of appendix 2 hereto.
(SEVEN) The Second Party shall fully insure the whole of the development as and from Fifteenth May, Nineteen hundred and eighty five for all common calamities and purposes with a reputable Insurance Company and shall comply with all the terms of said Deed of Conditions.
(EIGHT) As and from Fifteenth May, Nineteen hundred and eighty five the Second Party shall fully maintain and repair the whole buildings, fences, common areas and other development of said area except in so far as the occupiers of said houses are to be responsible in terms of said Deed of Conditions and the Second Party shall satisfy the First Party that adequate provision is made in respect of these obligations.
(NINE) The Second Party shall undertake to maintain any private garden ground allocated to any sheltered house upon being requested by the occupier thereof provided always that the second party shall be entitled to charge said occupiers such rate or rates as shall be agreed in respect of this service which shall not form part of the administration charges hereinafter specified.
(TEN) The Second Party shall effectually and effectively maintain and keep in good order and repair the emergency systems as installed by the first party in said development.
(ELEVEN) The Second Party shall fully maintain and repair all lifts and other communal equipment all to the sight and satisfaction of the first party.
(TWELVE) The Second Party shall institute a Scheme of Management not later than Fifteenth May, Nineteen hundred and eighty five in terms of appendix 2 hereto. The Second Party shall be entitled to alter, vary, revoke or modify the same but the First Party shall be entitled to call upon the Second Party to institute a similar or suitable scheme of management which will require the approval of the First Party for the efficient effective and satisfactory management of the development.
(THIRTEEN) The Second Party shall be entitled to levy a charge of £41.23 per month to the purchasers and their successors in title, all in terms of said Deed of Feuing Conditions, and the Second Party shall if called upon to do so furnish estimates of cost when any review of the said charge is required."
The terms of the Deed of Conditions, as set out in Appendix 1 to the Minute of Agreement, contained various provisions relating to the complex and the individual privately-owned dwellings within it. It is necessary for present purposes to quote the whole of Clause (FOURTH), as follows (the text is exactly as in the original):
"(FOURTH) The Superiors shall be responsible for the management maintenance and administration of the complex (other than the interiors of the sheltered houses and flats (excluding common areas) which shall be the sole responsibility of the occupants thereof) and this responsibility shall include but shall not be limited to the following:- (One) maintenance, repair and renewal of: (a) the structure and external parts of all erections within the complex; (b) all garden ground (i) effeiring to the sheltered houses and flats in so far as separately agreed with the proprietors thereof and subject to such payment as may from time to time be agreed; and (ii) within the complex; (c) all amenity open spaces within the complex; (d) all roads, footpaths, slabbed areas, communal parking areas and other communal areas within the complex in so far as these are not taken over by the Local Authority; (e) all fences, walls, hedges, trees, shrubs, flowers and plants within the complex; (f) where the sheltered house forms part of tenemental flats, all staircases, landings, closes and other communal parts within the said block or tenement, including the lighting and cleaning thereof; all common rooms, guest accommodation and premises occupied by employees of the Superiors; (Two) Insurance of the complex including without prejudice to the generality of the foregoing, the sheltered houses and flats, warden's house, guest bedrooms, communal facilities, fences, walls and other external structures in the complex and where the sheltered house forms part of a tenement of flats Insurance of the whole tenement, such Insurances to be taken out by the Superiors with a reputable Insurance Company and to be equal at least to the reinstatement value of the subjects covered and for normal insurable perils, but excluding moveables in the possession of occupiers; (Three) appointment of wardens to superintend the management and administration of the complex and of such relief or assistant warden as may be required from time to time and the payment of the salary of the wardens and of any relief or assistant warden and of all other costs incurred in the employment of the wardens or their relief or assistant including without prejudice to the generality of the foregoing the payment of rates and heating costs relating to the wardens' house, warden's office, guest bedrooms and communal facilities; [A] (Four) A Management Scheme comprising regulations shall be drawn up by the Superiors and these shall be enforceable against the feuars. These Management Regulations shall contain rules governing the management and administration of the complex and the payment of Charges by the feuars for such management and administration. The Management Scheme shall contain, but shall not be limited to, the following rules:- (a) payment by the feuar of a monthly service charge in respect of all services provided by the Superiors, such charge being payable monthly in advance on such date as is directed by the Superiors. The service charge for the first twelve months shall be Forty One Pounds twenty three pence (£41.23), but shall be reviewable in an upwards direction by the Management Company at anytime on the Management Company giving to the feuar three months prior written notice; (b) a site to be laid out within the complex as a communal parking area which will be used by the feuars and their visitors for parking of private cars only and for no other purpose whatsoever; (c) the feuars right to form an Association for the purpose of making representations to the Superiors or the warden; (d) the duties of the warden which shall be generally to look after the wellbeing and safety of the feuars and to supervise the whole of the complex and the warden shall without prejudice to the foregoing be responsible inter alia for the following: (i) respond to any emergency call and summon such assistance as may be necessary; (ii) maintain a register of occupants with particulars of next of kin or the names of such other person or persons to be contacted in emergency; (iii) maintain a register of Doctors, Dentists, Ministers, Priests et cetera with relative phone numbers; (iv) being available to assist and welcome newcomers with help and advice and assisting the feuars in organising communal activities; (v) supervision of and assistance with maintenance of gardens, amenity areas, fencing, external parts of sheltered houses and other parts of the complex; (vi) supervision of and assistance with all other works of common maintenance and repair; and (vii) such other duties as shall be specified from time to time by the supervisor; (e) supervision and administration of the use of the guest bedroom which shall be at the sole discretion of the Management Company.[B]"
The Scheme of Management set out in Appendix 2 contained provisions similar to those of the scheme which has been in operation since 1992 and which I have already summarised. Each page of the Minute of Agreement and the two appendices was executed by both Barratt and SHM. The solicitors added a testing clause in the usual way at the end of the Minute of Agreement. Confusingly, they also added a testing clause at the end of Appendix 1. As a result, it is easy to take the contents of Appendix 1 to be the executed Deed of Conditions, rather than the agreed terms thereof.
"It is understood that you have arranged for administration of the whole estate as a sheltered housing managed scheme, such scheme to provide for a full time warden and relief warden employment, common insurance for standard perils of the whole estate, an emergency alarm system, maintenance and repair of the Estate (other than maintenance and repair of a type exclusive to the interior of the dwellinghouse) accommodation provision for the full time warden and for guests of owners, and maintenance of all common areas, all as to be provided by Sheltered Housing Management Limited, having its registered office at 13, Ward Road, Dundee in terms of Minute of Agreement between you and said Company and as further governed by Deed of Feuing Conditions by you in respect of the Estate and Scheme of Management. I/we undertake to adhere to the terms and conditions required and as applied in these aforementioned deeds for the administration of the whole estate as a Sheltered Housing Management Scheme, and to pay such charges as shall from time to time be required from and levied against me/us. I/we warrant that I/we have read and understood the Minute of Agreement and Scheme of Management referred to prior to signing this offer."
Paragraph 10 of the missives provided inter alia that the title would take the form of a Feu Disposition or similar writ containing certain clauses, including a clause:
"(f) Providing for the Management Maintenance and Administration of the Estate as a Sheltered Housing Managed Scheme, and the charges payable by me/us therefor."
Copies of the Minute of Agreement and the two appendices thereto were attached to the missives. No solicitor who acted for any of the purchasers was called as a witness, so it cannot be said with confidence what documents were available for examination before a Feu Disposition was granted in favour of a purchaser. It might be expected that a copy of the recorded Deed, along with copies of the other deeds referred to for burdens, would have been available for examination. But it may have been assumed, wrongly, that a copy of Appendix 1 to the Minute of Agreement, which had all the appearance of an executed deed, was a copy of the recorded Deed. At all events, even if a copy of the recorded Deed was available, as well as a copy of the Minute of Agreement and appendices, no solicitor acting for any purchaser noticed that Clause (FOURTH) (Four) had been omitted from the recorded Deed.
"(1) The court shall order a document to be rectified under section 8 of this Act only where it is satisfied -
(a) that the interests of a person to whom this section applies would not be adversely affected to a material extent by the rectification; or
(b) that that person has consented to the proposed rectification.
(2) Subject to sub-section (3) below, this section applies to a person.... who has acted or refrained from acting in reliance on the terms of the document or on the title sheet of an interest in land registered in the Land Register of Scotland being an interest to which the document relates, with the result that his position has been affected to a material extent.
(3) This section does not apply to a person -
(a) who, at the time when he acted or refrained from acting as mentioned in sub-section (2) above, knew, or ought in the circumstances known to him at that time to have been aware, that the document or (as the case may be) the title sheet failed accurately to express the common intention of the parties to the agreement...; or
(b) whose reliance on the terms of the document or on the title sheet was otherwise unreasonable."
Sub-sections (4) and (5) of section 9 allow the court, for the purpose of protecting the interests of a person to whom section 9 applies, to order that the rectification of a document shall have effect at a later date than that at which it would have effect by virtue of section 8(4), and to order that a document as rectified shall be treated as having being recorded as mentioned in section 8(5) at a later date than that at which it would be treated by virtue of that sub-section as having been so recorded.