Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> HOLMS & Anor v. Ashford Estates Ltd [2006] ScotSC 30 (14 February 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/30.html
Cite as: [2006] ScotSC 30, 2006 GWD 17-350, 2006 SLT (Sh Ct) 70
[New search] [Help]
Case Reference No: A2086/04
JUDGMENT
BY SHERIFF G W M LIDDLE
in the cause
ROBERT ANDREW HOLMS and ANNE
PURSUERS
against
ASHFORD
ESTATES LIMITED,
DEFENDERS
EDINBURGH 14
February 2006
The Sheriff,
found the following facts to be either admitted or proved.
1. The pursuers
are spouses. They reside at 24b
2. In terms of Missives constituted by letters dated 30 March 1998, 31 March 1998, 9 April 1998, 30 April 1998 and 8 May 1998 (No 5/4 of process) the defenders entered into a contract with the pursuers for the sale of the heritable subjects known as 24b Manor Place, Edinburgh.
3. By Disposition dated 28 January and 9 June 1999 (No 5/1 of process), and registered in the General Register of Sasines on 21 June 1999, the defenders disponed the heritable subjects at 24b Manor Place, Edinburgh, to the pursuers.
4.
The subjects at 24b
5. Inter alia the Disposition in favour of the pursuers conveyed (a) the car parking space outlined in red and marked "42" on the plan annexed and relative to the Disposition, and (b) a heritable and irredeemable servitude right of access for both pedestrian and vehicular traffic over the lane known as Bishop's Lane from Manor Place and the common car parking area described in the related Deed of Conditions (No 5/2 of process).
6. In the negotiations which preceded the
Missives the pursuers were offered the heritable subjects at 24b
7. The defenders granted warrandice in the said Disposition.
8. The plan annexed to the Disposition in favour of the pursuers shows only three car parking spaces associated with the development in the car parking area, numbered 40, 41 and 42 respectively. It does not show any car parking space numbered 43, nor does it show any hatched area associated with car parking space 43.
9. The plan annexed to the said Deed of Conditions shows car parking spaces 40, 41 and 42. These correspond with the car parking spaces shown on the said Disposition in favour of the pursuers. No hatched area or parking space 43 is shown on the plan annexed to the Deed of Conditions. The car parking spaces are similar to each other in dimension and each one is of sufficient size to accommodate a typical or conventional car.
10. The pursuers inspected the subjects several times prior to settlement. On some occasions they were accompanied by Charles Richard Macquarie, a Director of the defenders. On each occasion only the car parking spaces numbered 40, 41 and 42 referred to above were visible in the car parking area.
11.
By Disposition from the defenders in favour of Fenella
Mary Mason dated 28 January and
12. The pursuers were never made aware that any car parking spaces other than spaces 40, 41 and 42 were to be disponed to any proprietor of subjects arising out of the development. In particular, the pursuers were never made aware of the proposal for or existence of car parking space 43. They were never made aware that car parking space 43 was intended to form part of the development.
13. At all times that the pursuers inspected (accompanied or otherwise) the subjects prior to settlement car parking space 43 was obscured from view by builders' materials, a portacabin, other debris or all of these things.
14. The pursuers were never shown any historical aerial photographs of the car parking area at any time by the defenders.
15. During discussions both before and after settlement Charles Richard Macquarie, director of the defenders, told the pursuers that the defenders had been required by planning conditions to create three car parking spaces.
16. In order for a typical or conventional car to be parked on car parking space 42 it is necessary for there to be encroachment on to car parking space 43. If car parking space 43 is occupied it is impossible to drive a typical or conventional car into or out of car parking space 42 in such a car. A "Smart Car" is not a typical or conventional car.
17. There is a hatched area between car parking space 43 and spaces 41 and 42. This area is not sufficiently wide to allow a typical or conventional car to be parked in or driven away from space 42 without encroaching on to space 43. If no car parking space 43 existed, in the absence of unauthorised parking, there would be no restriction to the pursuers fully using car parking space 42.
18. The pursuers first became aware of car parking space 43 and the restriction on their use of car parking space 42 in or around September 1999 shortly after they took entry to their subjects.
19. Following certain negotiations between the parties the pursuers were allowed the use of car parking space 43 for a period of time up until that permission was terminated. In March 2003 the pursuers placed a lockable and collapsible bollard at the entrance to car parking space 43. Another similar bollard was erected in front of space 40 and in front of the hatched area. During the said period of time the pursuers used car parking space 43. They used it with the consent of the proprietor. That consent had been obtained through the offices of the defenders. The bollard in front of car parking space 43 prevented unauthorised third party use of the space.
20. The bollard protecting car parking space 43 was locked by means of a padlock. That padlock was under the control of the pursuers until December 2003 when the lock was changed by or on behalf of the proprietor of space 43. The space was subsequently used for a period of time by an employee of the defenders. The use of car parking space 43 by an employee of the defenders rendered it practically impossible for the pursuers to make use of car parking space 42.
21. The padlock associated with the bollard protecting car parking space 43 was removed in April 2004 and from then up until the date of proof the bollard was not locked.
FINDINGS IN FACT AND LAW
1. The pursuers' servitude right of vehicular access and egress cannot be exercised without unencumbered access over parking space 43.
2. Fenella Mason has a competing title, granted to her by the defenders prior to the pursuers' title, which entitles her to use her property and de facto to prevent third parties, including the pursuers, encroaching on her property.
3. The pursuers have been evicted from their parking space number 42, in the sense necessary to establish a claim for breach of warrandice.
4. The defenders are in breach of warrandice.
5. The loss and damage suffered by the pursuers as a result of the defenders' breach of warrandice is £15,000.
THEREFORE
Sustains the first plea-in-law for the Pursuers; Quoad ultra Repels parties' pleas; Decerns against the Defenders for payment to the Pursuers of the sum of FIFTEEN THOUSAND POUNDS (£15,000) STERLING, with interest thereon at the rate of eight per centum per annum from the date of citation until payment; Certifies the cause as suitable for the employment of junior counsel; Finds the Defenders liable to the Pursuers in the expenses of the action; Appoints an account thereof to be given in and Remits the same when lodged to the Auditor of Court to tax and to report.
NOTE
Prior to the Proof commencing the pursuers' counsel, Mr Hawkes, moved me receive a third inventory of documents. That was opposed. It transpired that, although items 1, 2 and 4 were opposed the only real issue was in relation to item 4. In the event, Mr Hawkes did not insist on item 4 and the inventory was allowed to be received under deletion of item 4.
An unopposed motion on behalf of the Pursuers to amend the address in the Instance was made and allowed.
EVIDENCE
[1] The dispute relates to the use of car parking space number 42 disponed to the pursuers by the defenders along with the flatted dwellinghouse at 24b Manor Place, Edinburgh. Much of the evidence was not controversial. The central issue between the parties was whether a restriction in use, putatively such as to render the space effectively unusable by the pursuers, constituted a breach of warrandice. Following on from that, there is the question of quantum should I hold that there is loss arising from a breach of warrandice.
[2] Uncontroversial reference was made to two Dispositions and a Deed of Conditions. These were (i) the disposition relating to the pursuers flat, number 24b Manor Place (number 5/1/1/ of Process); (ii) the disposition relating to Fenella Mason's flat, number 24/4 (number 5/1/5 of Process); and (iii) the defenders' Deed of Conditions relative to the whole development including the two said flats (number 5/1/2 of Process).
[3] The Deed of Conditions relative to the
development at
[4] In the Deed of Conditions the "development" is
defined as the
[5] The Disposition relating to the pursuers' dwellinghouse was executed on behalf of Standard Life Investment Fund Limited on 28 January 1999 and by Esmond Robert Smith and Charles Richard Macquarie on behalf of the defenders on 12 June 1999. It was registered in the General Register of Sasines on 21 June 1999. The title disponed includes Car Parking Space 42 and reference is made therein to the plan annexed and signed as relative to the disposition. There is also disponed a heritable and irredeemable servitude right of access for both pedestrian and vehicular traffic over the lane know as Bishops Lane from Manor Place and the common car parking area more particularly described in the Deed of Conditions. The burdens clause in the Disposition incorporates the burdens contained in the Deed of Conditions. Futhermore, the defenders grant warrandice in gremio. As in the Deed of Conditions, the plan relative to the Disposition shows only 3 parking spaces. These are numbers 40 to 42 with no restriction shown to access in front of number 42. On this plan there appears to be unrestricted vehicular access to Space number 42. Space number 43 does not feature. The Supplementary Plan in the Deed of Conditions is for all relevant purposes identical to the plan relative to the pursuers' Disposition.
[6] The defenders sold flat number 24/4 to Fenella Mason. She was described in evidence as the girlfriend of the defenders' director, Esmond Robert Smith. In her own evidence she accepted she was his long term partner. The disposition relating to this property was executed on 28 January on behalf of Standard Life Investments Limited and on 4 February 1999 on behalf of the defenders by Esmond Robert Smith and Charles Richard Macquarie. The title to these subjects includes a car parking space outlined and marked 43 on the plan annexed and relative to the disposition. Car parking space 43 does not feature in the Deed of Conditions or in the plan relative to the pursuers' Disposition. It lies perpendicular to the ends of car parking spaces 41 and 42. There is a hatched area between space 43 and spaces 41 and 42.
[7] The pursuers own a Mercedes estate car. It was not in dispute between the parties that in the event of Space 43 being in use the pursuers could neither enter nor leave Space 42 with this car because of the obstruction that would be created by a car parked in Space 43. There was certain controversial evidence in relation to particular types of car, and in particular a "Smart Car". I will return to that later.
[8] Both pursuers said that they negotiated off plan
for the purchase of the flat at 24b
[9] According to the pursuers, they visited the site
on 3 or 4 occasions before purchasing the subjects. They spoke to Charles Richard Macquarie on
some of these occasions. They viewed the
car parking area behind the tenement subjects but did not identify the car
parking space they were to get. They did
not know which of the three spaces they were to get. They did not accept the proposition that they
chose space 42 but did accept that, being closest to their basement flat, if
unrestricted it would be convenient for them.
An historical aerial photograph of inter
alia the car parking area (number
[10] The pursuers said that Charles Richard Macquarie told them there were to be 3 car parking spaces sold with the 5 flats being formed. On the occasions the pursuers visited the site the area where space 43 and the hatched area now exist was obscured or covered by building materials, a portacabin and debris. It was not possible for them to see whether such a space was marked out on those occasions. The pursuers said that they did not see space 43 and were never aware of its existence.
[11] In cross-examination the pursuers accepted that
there were general parking difficulties in
[12] Shortly after taking entry to their flat the pursuers became aware for the first time of the existence of space 43. They became aware that there was not unrestricted access to their space 42. They became aware that if space 43 was used they could not park their car in space 42. The pursuers contacted the defenders about the car parking problem. They did not contact Fenella Mason. The defenders arranged for the pursuers to have the use of space 43 from about year 2000. This use continued until late 2003. Negotiations took place. It was the pursuers' understanding that there was to be an excambion resulting in them getting space 43 in exchange for space 42. In the end this did not happen. At one point, according to Mr Holmes, Mr Smith suggested to him that he should buy a Smart Car as a solution.
[13] In order to address the matter of unauthorised parking, the pursuers, along with other owners, had lockable bollards installed in the car parking area. There were bollards placed at spaces 40, 43 and the hatched area. The pursuers placed a padlock on the bollard at space 43 and used it to control unauthorised parking. One night in late 2003 the pursuers' padlock was removed and another, over which they had no control, was put in its place. The pursuers thought it must have been put there by the defenders. They spoke of a member of the defenders' staff using space 43 on occasion after this change of lock. With the bollard at space 43 locked to the exclusion of the pursuers it was not possible for them to park in space 42. Following the raising of this action the padlock on the bollard at space 43 was removed and it remained unlocked at the time of the proof.
[14] Henry Morgan gave evidence. He owned a flat at 24 Manor place from 1998 until 2001. He had parking space 41 and used that space. He referred to the hatched area as narrow. He said he had never tried to get into space 42. He said that if spaces 40 and 43 were occupied he could not even get into space 41. He had seen the pursuers trying to park. He said that one could not park in space 42 if spaces 41 and 43 were occupied. He said that there had been a problem with unauthorised parking behind the tenement. Mr Morgan was not cross-examined.
[15] Grant William, chartered surveyor, gave evidence relating to valuation. He had examined the plan relative to the pursuers' title and was of the view that parking space 42 did not enjoy unrestricted use. It was restricted by space 43. He valued the subjects as at the time of purchase by the pursuers both with an unrestricted parking space and with the restricted space 42. With an unrestricted parking space he valued the subjects at £175,000. This was the purchase price paid by the pursuers. With the restricted space 42 the subjects actually enjoy he valued the property at £160,000 - a diminution in value of some £15,000. It was put to him in cross-examination that the pursuers retain space 42. His view was that the space, to have any beneficial value, needed to be unrestricted. He said that if the space had no beneficial use, as was his position, then it had no value. Questioned on the matter of consensual use of space 43 he said that in order to make a difference to valuation there would need to be a right in perpetuity. He pointed out that even with consent the restriction would still exist. A change of owner could bring about withdrawal of such consent. In his opinion nothing other than a right in perpetuity would suffice to influence valuation.
[16] Esmond Robert Smith was the first witness for
the defenders. He was a director of the
defenders at the material time and a signatory to the Deed of Conditions and
dispositions mentioned above. He was a
civil engineer and had been in the building trade since 1973. The defenders bought
[17] In cross-examination Mr Smith accepted that the pursuers had been granted servitude rights that the defenders would not have granted if they did not have the right to do so. He said that was not aware whether the pursuers had been offered their subjects for £160,000 without a parking space and reiterated that Mr Macquarie had been involved in sales. He said that he was aware that parking space 43 had been allocated by the time the pursuers had purchased their flat. He did not know, and could not explain, why space 43 was not on the plan relative to the pursuers' disposition. He claimed not to have prepared the plan and said that he just signed it. He said that he only became aware of a problem in the autumn of 1999. He denied any conversation with the pursuers at that time. Referred to the plan relative to the flat sold to Fenella Mason, he agreed that it showed space 43 but said he could not explain it other than it was the space conveyed to her. He agreed that he had a personal relationship with Fenella Mason and that and that she had been his partner in 1999. He claimed that their relationship had not influenced the grant of space 43 in her favour. He said the defenders had always intended to convey four parking spaces. He said that planners had wanted there to be a space for each of the five flats disponed but that flat number 5 was only a single room flat. He said that if Charles Richard Macquarie had told the pursuers there were only to be three parking spaces he would have been wrong. He accepted that a person looking at the plan relative to the pursuers' disposition might make the assumption that there were only to be three parking spaces.
[18] Referred to the Deed of Conditions, Mr Smith said that the defenders had instructed the preparation of that plan. He could not explain why it showed only three parking spaces. He accepted that if a person were to have reference to no more than the pursuers' disposition and the Deed of Conditions they might well assume that there were only to be three parking spaces.
[19] Mr Smith accepted that up until June 1999 there were building materials in the vicinity of the car parking area from time to time. He said that there were also cars parked there from time to time. He said he did visit the site from time to time and was aware of no debris in the vicinity. He said that the site was serviced from the front of the property. All building materials were delivered to the front of the property. He conceded that there might have been times when it would have been impossible to see the delineation lines in the car parking area. He had not shown the aerial photograph (number 6/3/1 of Process) to the pursuers.
[20] Mr Smith maintained that a small car could get into space 42 by encroaching only across the hatched area. He accepted that a bigger car, like a Ford Mondeo, would need to encroach on space 41 or 43 to get into space 42. He said that he had parked a "Smart Car" by encroaching only on the hatched area. He accepted that a "Smart Car" could be parked where, what he described as a "conventional car" could not. He denied advising Mr Holmes to buy a Smart Car. He subsequently said that he could not recall making the suggestion. Asked about the relative dimensions of the hatched area and parking space 43, Mr Smith said that the hatched area was bigger. He was referred to photograph (number 6/3/1 of Process). He could not explain why on the defenders' sketch (number 6/2/2 of Process) the opposite was noted. He was asked about the dimensions noted thereon of the width of the hatched area at 2.3m and the width of space 43 at 2.5m. He then said that his explanation was that the measurements were not right. He went on to say that it could be that the sizes have been changed but not by the defenders. This question was not explored in re-examination.
[21] Fenella Mason, solicitor, said she was the owner of 24/4 Manor Place, Edinburgh which she bought from the defenders in 1999 along with parking space 43. It is a top floor flat. She said she had stayed there and used it to save commuting to Fife. Over the period of one year she stayed there about 12 times or so. She let the flat to tenants in May 2000 without parking. She has let it since. She had parked when she stayed there. She said she never uses space 43. She did, for a while, let the defenders' secretary use it during the last 2 years. This had not happened with the last year. The secretary stopped using it following a dispute as to its use. She then said she had not authorised anyone to use it. Shown photograph (number 5/3/2 of Process) she identified space 43 and identified the bollard protecting it. She said she had not installed the bollard.
[22] In cross-examination Miss Mason initially denied any knowledge of there being a padlock. She was asked about the pursuers using space 43. Uneasy, she said she thought there might have been discussions to allow the pursuers to use the space. She said Esmond Smith had tried to negotiate a resolution to exchange space 42 for 43. She said she was not aware of the reason the exchange was not made permanent. She said she was open-minded as long as she had a space. She drove An Audi 2.5l estate car and had never tried to park in space 42. Shown photograph (number 5/3/1 of Process) she said she thought she could park her car in space 42. She said it would depend probably on the type of car. She then went on to qualify her position saying that from the photographs it looked tricky and finally said that she could not say whether it was possible or not. Shown a photograph (number 5/3/2 of Process) of a Vauxhall Corsa car parked in space 43 she said she did not know who owned that car. She said it was parked without her knowledge. On the issue of the bollard at space 43 she later said she came to learn it was padlocked. Esmond Smith told her he was going to remove the padlock and replace it. When pressed, she said that she thought Esmond would have said to her if he had changed the padlock. She next said that she was aware the subsequent padlock had been removed after the commencement of the present court action. Pressed further, she said that she had acquiesced in the padlock being changed and that it was probably done with her knowledge and consent if not intention.
[23] William Lawrence Marshall, solicitor, was the final witness for the defenders. He had supervised the sale of the properties at 24 Manor Place. He was referred to the missives of sale. There was an objection taken to exploration of the letters constituting the missives on the basis that the missives had been agreed by joint minute. The question was withdrawn. In cross-examination Mr Marshall said he did not know who the author of the plan relating to pursuers' disposition was but would expect to have been given it by the defenders. He identified the plan (number 5/1/5 of Process) as being given by the defenders. He said he was often given a master plan and draft Deed of Conditions but said that he might get changes to the plan. He said that it was possible to get different plans because of changes. Ultimately, he said that he did not know why there were three parking spaces shown on one plan and yet four spaces shown on another. He said he would expect the plan to be representative of the position on the ground. He would expect the question of access to a parking space to be a relevant matter on a plan. In re-examination he accepted the proposition that the plan relative to Fenella Mason's disposition would show her parking space. However, he reiterated that he did not know why space 43 was not shown on the plan relative to the pursuers' disposition.
SUBMISSIONS
PURSUERS
[24] Both counsel, very helpfully, provided me with written submissions. Mr Hawkes also provided me with proposed findings in fact. Mr Hawkes invited me to prefer the pursuers' witnesses and evidence. He said that Mr Smith had been vague in his evidence. He pointed to inconsistencies in the space 43 and hatched area dimensions. He invited me to reject Mr Smith's evidence in relation to the Smart Car. Whilst he did not invite me to disbelieve that Mr Smith managed to park a Smart Car in space 42 he did ask me to reject the contention that it was a conventional car and that its use, as such, could have been in the minds of the parties at the time of contracting. Mr Hawkes pointed to other areas of Mr Smith's evidence where he said there were inconsistencies. He focused on Mr Smith's evidence that there were always to have been four parking spaces in contrast with the absence of the fourth space on some of the plans and the pursuers' evidence of Mr Macquarie saying there were to be three. Mr Hawkes pointed to Mr Smith denying that he told Mr Homes to buy a Smart Car. Later in his evidence, Mr Smith changed his position to not being able to recall making the suggestion.
[25] Mr Hawkes submitted that Miss Mason's evidence was of little value and invited me to disregard it. She had initially claimed ignorance in relation to the use of her parking space. She denied knowledge of who owned the Vauxhall Corsa photographed parked in her parking space. She was vague on the question of the pursuers being authorised to use her parking space. She was vague on the matter of that authorisation being withdrawn and the padlock being changed. Mr Hawkes pointed out that Miss Mason appeared to change her evidence under cross-examination in relation to her state of knowledge of what was going on with her parking space.
[26] Mr Hawkes submitted that the pursuer had been evicted from parking space 42 within the meaning of evicted to be found in Clarke v Lindale Homes Limited 1994 S.C. 210. Mr Hawkes invited me to distinguish the case on its facts but drew my attention to the discussion therein on the meaning of 'evicted'. He also referred me to Mutch v Mavisbank Properties Limited 2002 S.L.T. (Sh. Ct.) 91 and invited me to distinguish that case on its facts. Mr Hawkes referred me to Halliday: Conveyancing Law and Practice in Scotland Vol. 1 (2nd edn). At paragraph 4.29 and the discussion of warranty there where Professor Halliday says: "Warrandice in its absolute form is a personal obligation by the granter of the deed that the deed and the right thereby granted shall be effectual to the grantee and that if the grantee suffers loss or damage by reason of reduction of the deed, or eviction, total or partial, from any property conveyed by the deed of the granter or his predecessor in title, or any defect in the title of the granter to the property conveyed by the deed, the granter will make good that loss or damage".
[27] Mr Hawkes submitted that the servitude right of access to the pursuers' car parking space granted to them by the defenders was ineffectual because the right, though it may have been validly transferred, could not be exercised. The right could not be exercised because the pursuers required unobstructed access over the ground which forms space 43 in order to use space 42. By the time the defenders disponed to the pursuers the ground occupied by space 43 had already been disponed to a third party by a deed of the granter. Accordingly, the defenders did not have title to the ground over which access is required for the exercise of the pursuers' rights. An ineffectual right was transferred as part of the title. It was and is a defect in that title.
[28] Mr Hawkes submitted that there was no dispute that Miss Mason owned the ground occupied by space 43 and that she had the right to use it when she wished. There was no question her title was unassailable and would prevail. He also submitted that she would have a right to prevent encroachment. He submitted that the dispute lay in whether her legitimate exercise of her rights and the consequent inability of the pursuers to use space 42 amounted to eviction. By the use of her parking space, Miss Mason, the owner of the unassailable competing title, prevented the pursuers using their parking space. The defenders had created a competition between Fenella Mason's right to use space 43 as and when she pleased and the pursuers' servitude right of access over it to achieve use of their parking space. The pursuers could not succeed against Miss Mason. They could not prevent her using her car parking space. She had asserted her right to use her car parking space by doing so herself or through permission to third parties. In so doing the pursuers space had been blocked and rendered unusable. She had further prevented encroachment over space 43 by locking the bollard although the lock had been removed when this litigation started. This meant that the pursuers had required to abandon part of their property because they could not use the third party property to get to it. The challenge was that the third party was entitled to and insisted in using her property in such a way that the pursuers were prevented from using part of their property. The result was that the pursuers were evicted from that part of their property within the meaning of eviction in the context of warrandice. It was not that the third party owns part of the pursuers' land in competition. It was that when the pursuer might seek to exercise the part of their title that is a servitude right of access they cannot do so because of the existence of the third party title per se. Mr Hawkes also referred me to the discussion on warrandice in Gretton & Reid 'Conveyancing' (3rd Edition) at para. 16.11. for their discussion on warrandice. Mr Hawkes position was that the pursuers, on the evidence, did not know of the existence of space 43 within the development when warrandice was granted. It was akin to an encumbrance in that it prevented the pursuers using part of their property, namely parking space 42.
[29] On the question of quantum Mr Hawkes referred me to the unchallenged evidence of Grant William. With reference to McDonald's Conveyancing Manual Part 2 paragraph 10.10 et al., he invited me to hold that the loss suffered by the pursuers was the diminution in value of the pursuers' property. Grant William had valued the pursuers' property on the basis of having and not having a parking space and found the level of difference to be £15,000. That corresponded with the pursuers' evidence about the relative purchase prices of £175,000 and £160,000 that they were offered by the defenders at the time of purchase.
[30] Mr Hawkes invited me to sustain his first plea-in-law. He agreed that expenses should follow success. He moved me to sanction the case as suitable for the employment of junior counsel.
DEFENDERS
[31] Mr Thompson invited me to sustain pleas-in-law 2 and 3 for the defenders and to dismiss the action against them or to assoilzie them. With reference to the pursuers' draft findings in fact he said that he agreed with proposed findings 1 to 7, 10, 16, 17 and 19. He took some issue with the other proposed findings in fact for a variety of reasons. He did not agree with the proposed findings in fact and law. He accepted that the correct approach to quantification was diminution in value and conceded that that figure as at the date of the disposition in favour of the pursuers was £15,000. He did not accept there was causation. He submitted that any claim for damages in this action must be connected to a breach of warrandice however characterised. He went on to submit that quantum fell to be measured as at the date of eviction. It was the pursuers' case that eviction arose immediately. Mr William's evidence was as at June 1999. There was no evidence as to effect on value as at any later stage. He submitted this was one of the reasons the pursuer failed in Palmer v Beck 1993 S.L.T. 485.
[32] Mr Thompson, invited me to accept Mr Smith's evidence on the question of a Smart Car being able to be driven into space 42 with a car parked in space 43. He invited me to accept Mr Smith's evidence that a small car could be parked. He invited me to find that the defenders had done nothing to alter the configuration of the car park since acquisition of the whole subjects. He invited me to accept Mr Smith and to find that small cars can gain access to space 42. He invited me to find that space 43 was regularly occupied by unknown members of the public. He submitted that there might be an eviction in the future should an owner take steps to prevent the use of space 42 but said that had not yet happened. The period a secretary of the defenders' was allowed to park in space 43 was a brief period. He submitted that Miss Mason had never been asked to move a car from space 43 to allow access. The bollard was no longer locked. In any event, the bollard was merely an obstruction of the servitude by the servient proprietor. To constitute eviction Miss Mason would have to have a legal right to do it.
[33] Recognising, I think, that it was not of the highest quality, Mr Thompson submitted that the evidence from Mr Smith and Miss Mason was of limited assistance. Mr Smith had not been the person the pursuers had dealt with. There was, on the evidence, no breach of warrandice. In the missives the pursuers bargained for an allocated parking space. That is what they got. They had been allowed to examine and satisfy themselves on the titles. The disposition in favour of the pursuers was granted on conclusion of the missives. The pursuers were granted a servitude of access over the common car parking area. That area included the individual car parking spaces. The right included the right to park a car. The servitude condition was not a condition that was unknown to the pursuers. There was no warranty that the pursuers could exercise the right in the way they thought they could exercise it.
[34] Mr Thompson referred me to Mutch (supra); Gretton & Reid Conveyancing (supra) at para. 6-9; Bowes v Kennedy rubric and pp 560 para.12; Clarke (supra); Halliday (supra) at para. 4.15; and D J Cusine & R R M Paisley, servitudes and Rights of Way (1998) (para.12.90). He submitted that the pursuers' approach, to say that eviction took place as soon as the disposition in their favour was granted, was flawed. He submitted that the pursuers' case truly proceeded on the basis of a bare defect without eviction. If an eviction had taken place at a time other than when the disposition was granted then there was no evidence as to valuation as at that time. The only valuation available was as at June 1999.
DECISION
[35] I begin by considering the evidence led. As noted above, much of the evidence was not in dispute. Where there were disputes, I prefer the pursuers' evidence. I thought all the pursuers' witnesses, including the pursuers themselves, gave their evidence in a direct and straightforward manner. I have no difficulty in finding those witnesses to be both credible and reliable. I was less than impressed with the evidence of Mr Smith and Miss Mason. At points Miss Mason appeared to be uncomfortable answering questions and, more than once, she changed her position under cross-examination.
[36] I am satisfied on the evidence that the pursuer never knew about the existence of parking space 43 prior to the disposition in their favour being granted. More than that, I am satisfied that, from the information the pursuers received from the defenders, they had good reason to believe that there were only to be parking spaces 40, 41 and 42 disponed. That being so, the pursuers had no reason to believe that there would be any title restriction to their being able to park in space 42. The disponing of parking space 43 to Miss Mason clearly, in my view, created a physical restriction that prevented the pursuers from freely using their parking space were space 43 to be used. It could be the case, of course, that space 43 might not be in use at any given time but I do not think that proposition really stands up to scrutiny. The fact is that if a car was parked in space 43 then the pursuers cannot park their car in space 42. The pursuers' car is a relatively large estate car but there was no evidence that it was not a vehicle that fitted comfortably and suitably into the area of space 42. The question was whether it could get there. In the absence of anything specifying that the pursuers' parking space as disponed was restricted to a small vehicle I am not prepared to give any credence to the proposition that a small car could be parked there. There is no reason why the pursuers should not be entitled to park any normal car that can comfortably occupy the space itself. However, before leaving this point I think I should deal with the question of the "Smart Car" car and Vauxhall Nova spoken to by Mr Smith. I did not accept Mr Smith's evidence that he had parked a Vauxhall Nova in space 42. Even if he had, as said above, I do not accept the underlying proposition that the pursuers should be restricted to such a small car in order to enjoy their parking space. That is not what they bargained for. As to the "Smart Car", that is a highly specialised vehicle that is significantly smaller than a normal or conventional car. I do not think there was any dispute that was so. Perhaps of even more importance, the "Smart Car is a relatively new phenomenon. There was no evidence that it was commercially available in the UK at the time missives were concluded or at the time the disposition in favour of the pursuers was granted. Indeed, though there was no evidence, I do not believe that it was so available. Accordingly, there is no evidence that it could have been in the contemplation of anyone at the material time.
[37] Eviction within the context of warranty has a meaning that goes beyond actual physical removal. In the leading case of Clarke (supra) a company of house builders sold a flat to an individual purchaser. The relative feu disposition, containing an absolute warrandice, was then recorded in the Land Register. Over two years later, the purchaser put the flat up for sale. A buyer was found and missives were concluded with a date of entry fixed for the same day as that for the seller's purchase of property in England. On examining title to the flat it was found that it had been erected partially upon ground to which the builders had no title. The seller, accordingly, could not grant a clear title to the flat. The defect in title did not come to the seller's attention until her agents were informed of it by the Keeper of the Register. The defect was eventually remedied and the flat re-sold. The seller then brought an action against the company of builders in which she averred that they had delayed in remedying the defect and that delay had caused her loss. She contended that she had, in effect, suffered eviction from part of the subjects over which the defenders had granted absolute warrandice. Even though no actual eviction had taken place and the third party having the competing title to the subjects had not taken any action to enforce his rights, the pursuer claimed that the defenders were in breach of warandice and that she was entitled to damages. It was held, on appeal to the Inner House of the Court of Session:- "(1) that the extent of the obligation to be inferred from the warrandice clause was governed by the intention of the parties construed from the words used in the title deeds and that the obligation was confined to the provision of indemnity and from eviction or threatened eviction, so that more was required than a mere deficiency in the title of the grantee; (2) that, although eviction did not mean physical removal, it did involve the emergence of a real or threatened burden on the property which had to come from a competing title-holder, that title itself being beyond doubt; and, accordingly, (3) that, as there were no averments indicative of loss arising from such a challenge, the action was irrelevant" Lord President Hope, having reviewed a number of authorities, said at page 216D:- "The significance in s. 895 of Bell's Principals that warrandice is an obligation to indemnify, not to protect, is that the mere possibility that there may be an eviction, where the defect is clear, will not do. There must be eviction of the subject from the grantee so that the defect in his title is placed beyond doubt. But there seems to me to be no more in this point than that there is no right to indemnity until there has been a clear breach of the absolute warrandice which has caused loss to the grantee. The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. Actual eviction, or the threat of eviction which occurs upon a challenge being made by the party with the competing title, will enable the grantee to make a claim on the warrandice. But it seems to me that neither of these is essential, if it can be demonstrated that the grantee has sustained loss against which he requires to be indemnified because there is a defect in the title which will provide a ground for actual eviction and it is unquestionable. If these requirements are satisfied it would appear that, in principle, it is open to the grantee to aver that he has suffered eviction within the meaning of the word which is relevant in this context and to claim indemnity for breach of the obligation of absolute warrandice."
[38] Reference was made by counsel to the facts in Clarke (supra) and Mutch (supra). I think that both cases fall to be distinguished on their facts. In neither case was it held that there had been what amounted to eviction on the particular facts. In the instant case there is no question as to Miss Mason's title to parking space 43. There is similarly no dispute as to the extent and meaning of the pursuers' title. The problem arises out of the competition between Miss Mason's proprietary rights in relation to space 43 and the effect that has on the pursuers exercising their rights. Were actual physical eviction to be required, and I think it is not, then it would occur when Miss Mason takes steps to exercise her right resulting in the pursuers being unable to use their property. She can do this by physically preventing the pursuers from using their car parking space. She has, for a period of time already done so. With at the very least, her acquiescence, and I think it was more than that, the bollard protecting car parking space 43 was locked against the pursuers. For that period of time there was a physical restriction against the pursuers using their own space. It was no doubt the realisation that doing so provided the pursuers with an argument, that it was removed on the commencement of these proceedings. Even with the padlock removed one cannot but observe that it could be replaced at any time. The threat from the proprietor of 23/4 Manor Place remains alive.
[39] The question then arises: even if no steps were ever taken to actually obstruct entry to space 43 is the threat of it happening enough to constitute eviction? I think that the answer to that question is yes. The meaning of a contemporary grant of absolute warranty requires to be considered in the light of the modern situation. The situation is that if there is a car parked in space 43 the pursuers cannot park their car in space 42. They are prevented from doing so because the proprietor of space 43 has parked there. It was suggested in evidence but is, I think, unrealistic, that the pursuers could seek out the parker (and here I mean legitimate parker) in space 43 and ask them to move so as to allow access. What if that parker cannot be found? Should anyone legitimately parking in space 43 make themself constantly available to move in order to give access to space 42? That suggestion is clearly impractical. What if, for example, the proprietor of 24/4 Manor Place wants to go abroad on holiday and leave their car behind? Even if access is clear to park because space 43 is not, for the time being, occupied the pursuers dare not park in space 42. Should they do so and there is then a car parked in space 43 they are trapped. Indeed this aspect of the situation leads me to the conclusion that from the outset there has been eviction. That is so because if the proprietor of space 43 has the right to use her property including the parking space as and when she pleases then the pursuers are effectively prevented from using their space at any time. If not actual eviction, there is provided the ground for actual eviction and it is unquestionable. In my opinion those circumstances constitute eviction within the meaning of the word relevant in this context.
[40] I am satisfied on the evidence that the pursuers did not at any time prior to the disposition being granted by the pursuers in their favour know of the existence of parking space 43. They did not know that space 43 had already been disponed by the defenders to Miss Mason. There was nothing in their communings with the defenders that would have led them to that knowledge. There was nothing in the documents they had been provided with that would provide them with that knowledge. There was at least the foundation in the evidence inadvertently or otherwise that the defenders may indeed have led the pursuers to reasonably believe that there were only to be three parking spaces. In this regard I take cognisance of the plan relative to the pursuers' disposition and the Deed of Conditions. I take cognisance also of the concession by Mr Smith that the pursuers could reasonably have been led to believe that there was no space 43 and the defenders' evidence as to what they had been told by Mr Macquarie. In Gretton & Reid: Conveyancing (supra) at para.16.11 the authors state: "The guarantee as to unencumbered title is somewhat different [to the guarantee that the title is good]. In this case, eviction is not required to trigger liability. A claim under warrandice can be made in respect of any encumbrance which was unknown to the purchaser at the time when warrandice was granted." I am satisfied, on the evidence, that the disponing by the defenders to Miss Mason of parking space 43 did give rise to an encumbrance which was unknown to the pursuers at the time warrandice was granted.
[41] In order to succeed the pursuers have to demonstrate that there has been loss arising out of the breach of warrandice and they have to provide evidence as to quantum. In my opinion the pursuers have done both. I accept the evidence from Mr William that, since it cannot be used, the pursuers' house falls to be valued as though no parking space exists. I accept the differential valuation amounting to a loss of £15,000. The pursuers said, and I accept that evidence, that they were offered their flat for £160,000 without a parking space and £175,000 with a parking space. I am reassured by the fact that the different purchase prices offered to the pursuers at the time of purchase precisely reflect Mr Williams' evidence on quantification. Mr Thompson submitted that, if eviction took place at all it was at a later stage when the bollard was locked against the pursuers. He submitted that since the pursuers had only led evidence of valuation as at the time of the granting of the disposition they had therefore failed to provide a quantification at that relevant time. Even on the hypothesis that Mr Thompson is correct about the timing of eviction I do not think that Mr Thompson's submission is sound. There is no evidence that the value of the car parking space was ever less than £15,000. However, there is evidence from Mr Holmes that there had been a parking space in the parking space area sold for the sum of £31,000. That is a sum considerably in excess of the £15,000 sought in the present case. Mr Holmes said that he told the defenders about this sale but that was denied by Mr Smith. I accept Mr Holmes on that matter. In my opinion, presented with some valuation evidence but insufficient to allow an award of the highest possible amount I am entitled to take the valuation evidence at its lowest and award that sum. In other words, the award I make should be the minimum amount that could reasonably be inferred as appropriate from the evidence. In this case that amount is £15,000. There is no evidence at all of any lower amount being appropriate and the sum of £15,000 was conceded by the defenders as being the value of the parking space at the time of the disposition. During submissions I mentioned to counsel that I believed there was a reported decision of the Inner House where the question of taking the lowest level of quantum proved in making an award rather than rejecting the evidence because it was deficient was discussed. Neither counsel took the opportunity to research the matter and addressed me on this. The decision in question is Clarke v The Chief Constable, Lothian and Borders Police 1993 S.L.T. 1299. In that case the Court was reviewing an award of damages for loss of earnings and services. The Court held that in assessing wage loss the calculation required to use the lowest figure extracted from the evidence, and that in assessing necessary services, although the absence of precise evidence was not altogether to exclude consideration of the claim, the court should assess the minimum amount which could reasonably be inferred as appropriate on the evidence. I can see no reason why the principle in that decision would not apply to an assessment of quantum in the present case. It is in line with my decision. If eviction took place at a time later than when the disposition was granted by the defenders in favour of the pursuers then, on the evidence, in my opinion the minimum amount that can reasonably be inferred as appropriate on the evidence is £15,000.
[42] Counsel agreed that expenses should follow
success. I accordingly award the
expenses of the cause against the defenders and in favour of the pursuers. Counsel submitted that I should certify the
cause as suitable for the employment of junior counsel. I agree that it appropriate to do so.