Sheriff Court case concerning the sale of Harwood Estate near Bonchester Bridge in Hawick.

In 2002 the trustees sought to sell part of the estate with the exception of the lodge, which was the subject of a liferent to Georgina Lauder.   However, no mention was made of the exception of the lodge in the narrative to the disposition and title to the lodge was included within the estate title registered in favour of the purchaser (Mr Feakins) in the Land Register for Scotland.

When this was discovered some years later, the trustees sought declarator that the lodge had not been included in the subjects of sale and an order that the Land Register be rectified. The trustees argued that, as the scale of the plan attached to the disposition meant it was impossible to determine whether the lodge was part of the subjects of sale, regard should be had to the intention of the parties in determining the effect of the disposition.  

Sheriff Daniel Kelly QC found that the Register was not inaccurate as the lodge had been transferred in the disposition. Even if the disposition had been ambiguous, the lodge was amongst the property transferred in the missives. The missives had been agreed to be final and it was not open to have regard to the prior intention of the parties. Further, even if the parties’ intentions had been considered, their intensions were not “as one” as Mr Feakins did intend to purchase the lodge.

The full report is available from the Scottish Courts here.