Permission to appeal arbitrator’s decision over flat encroachment dispute refused by Outer House

About this case:

• Citation:
  [2026] CSOH 46
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

It was argued by the petitioner that the arbitrator had erred on a point of Scots law, however the respondent did not agree that the appeal should take place and therefore an application was made for leave to appeal. He further argued that the arbitrator had refused to explain why he preferred one analysis or position over another and failed to engage in analysis of case law presented to him.

The application was considered by Lord Lake in the Outer House of the Court of Session, with representation for the petitioner provided by Drummond Miller LLP and for the respondent by Gillespie MacAndrew LLP.

Issue of interpretation

The dispute centred around a volume situated above the first floor flat of the petitioner, which passed through the second floor on which the respondent’s flat was situated. For the purposes of his decision, the arbitrator defined two parts of the volume which he called the Intermediate Area and the Lightwell Area. The former was the space between the ceiling of the bathroom in the petitioner’s flat and a projection of the joists supporting the floor of the respondents flat above. The Lightwell Area was defined as the space enclosed on one side by a projection of the joists supporting the floor of the respondents flat above and, on the other, by the underside of the roof.

It was found by the arbitrator that the petitioner’s title included only the Intermediate Area and the boundary between that area and the Lightwell Area above is the centre line of the joists dividing them, and thus he was neither the exclusive owner of the entirety of the Lightwell Area nor did he have a right in common. Accordingly, the question of whether the respondent encroached on the petitioner’s rights of ownership in the lightwell did not arise.

The arbitrator noted that the issue was one of interpretation of the respondent’s title deeds and, like any other issue of interpretation of a deed, evidence of what had taken place after the deed was granted was not relevant to the issue. The petitioner asserted that the findings on the first question on title and the third question on encroachment were contradictory and thus disclosed an error of law.

The petitioner further claimed that the arbitrator erred in determining that the extent of the area owned by him is limited by the terms of a 1968 sasine deed which formed part of the prior titles to his flat. For this purpose, the petitioner relied on section 3 of the Tenements (Scotland) Act 2004 and argued that it meant that in determining whether something is a pertinent of a flat, a geographically (or spatially) limiting description was not a bar.

Irrelevant to the decision

In his decision, Lord Lake said of the use of historic evidence to interpret deeds: “Taken in isolation, the arbitrator’s conclusion cannot be said to be an error as it is an established position in relation to interpretation of writings that they have their meaning as soon as they are produced or signed and that later actings cannot change that. The petitioner refers to the Tenements (Scotland) Act 2004, section 3. That, however, does not concern interpretation of deeds. It does not appear that there has been an error by the arbitrator, still less an obvious one.”

Turning to the questions around the lightwell, Lord Lake began: “It is necessary to consider the relevance of the point about the terms of the sasine title being geographically limiting and where it fits within the Award as a whole. As the Award makes clear, the issue of the extent of what was conveyed by the 1968 sasine deed arises only if the arbitrator is wrong in his primary conclusion that the permitted exception to the ‘curtain principle’ in which regard may be had to sasine deeds in the interpretation of a Land Register title is to be construed narrowly. It was, in essence, an esto position.”

He concluded: “In relation to the ‘curtain principle’ the arbitrator set out his view as to why the narrow approach should be taken and the result that it is only the prior sasine title for the respondent’s property interest which may be considered and not that of the petitioner’s title. That has the effect of excluding consideration of the 1968 deed. There is no challenge to that part of the Award and, as a consequence, the 1968 deed is irrelevant to the decision. Accordingly, there is no error, far less one that is obviously wrong.”

Having identified no legal error in the award, the application was therefore refused.