Sheriff Appeal Court finds certificate for repair costs on burdened farm property contained manifest errors

Paul and Evonne Salmond, originally the defenders in an action raised by David and Andrea Bryson, bought a farm property in Strathaven that was formerly comprised in a wider title owned by the respondents. They argued that the sheriff had erred in finding no manifest errors in the certificate issued as part of the real burden to certify sums due.

The appeal was heard by Sheriff Principal Duncan Murray, Sheriff Principal Craig Turnbull, and Appeal Sheriff William Holligan. The appellants were represented by Lindsay QC, and the respondents by Manson, advocate.

Errors in figures

The appellants were the heritable proprietors of a farm, Two Floors, that was formerly part of a wider area known as Floors Farm owned by the respondents. Floors Farm was later divided into a series of other properties, with the respondents retaining properties known as One Floors Farm and Five Floors Farm and disponing Two Floors to the appellants.

As part of the conveyance, a real burden was imposed on Two Floors in favour of the respondents’ Five Floors Farm property. Under the burden, the appellants were responsible for an equitable share of sums relating to the certain repairs and maintenance to the access road to the properties and other parts. The sums were to be established by certificate signed by the Five Floors proprietors and sent by recorded delivery to Two Floors.

The respondents commenced proceedings for payment by the appellants in December 2018, before a certificate was produced. Such a certificate was later prepared and signed by the respondents in December 2019, in terms of which the sum of £8,945.41 was certified as due for payment by the appellants, after a period of delay. The appellants refused to make payment, arguing that the certificate contained a number of manifest errors.

It was determined by the sheriff that the lack of specification of how the purported works carried out by the respondents constituted maintenance in terms of the burden did not constitute a manifest error sufficient to challenge the sum in the certificate. The appellants challenged this finding, arguing that the sheriff had erred in holding that the certificate was binding and final and could only be challenged on the grounds of manifest error.

Counsel for the appellants further submitted that the sheriff had erred in holding that none of the grounds challenging the sums certified were manifest errors. Many of the grounds of challenge had raised issues of bad faith, with the remaining grounds demonstrating errors in figures and obvious blunders that could be determined by the court without a lengthy inquiry into the facts.

Neither a repair nor maintenance

Delivering the opinion of the court, Sheriff Principal Turnbull began by noting: “The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case (which this is not), that meaning is most obviously to be gleaned from the language of the provision.”

Applying the principle to the present case, he said: “The Certificate, issued under real burden 5.2, is final and binding, save for manifest error. We do not accept the appellant’s proposition that, to have the effect contended for by the respondents, the real burden required to state that the Certificate was to be ‘final, binding and conclusive’.”

Addressing whether the certificate contained any manifest errors, Sheriff Principal Turnbull said: “The appellants’ challenges to the sum certified that are predicated upon the good faith of certain items are misconceived. The appellants say that because of a ‘complete lack of vouching and absence of specification’, they are disputing whether or not these items were actually carried out. Adopting such an approach would rob real burden 5.2 of any meaning or content.”

However, examining specific items claimed for in the certificate, he went on to say: “The appellants’ position is that [the replacement of a mid-gate] is neither a repair nor maintenance. Whilst it is within reasonable contemplation that the replacement of certain elements of the gate mechanism might be required as part of a repair to the gates, the complete replacement of the gate is not contemplated by real burden 5.2. The inclusion of this work within the sum certified amounts to a manifest error.”

Having determined that a number of other items in the certificate ought not to have been claimed for, Sheriff Principal Turnbull concluded: “In our view, an action predicated upon the Certificate cannot succeed. For reasons that are not immediately apparent, the appellants invited this court to allow a proof before answer, restricted to quantum. In light of the conclusion we have reached we see no purpose in acceding to such a motion.”

For these reasons, the case was put out by order to allow for submissions on further procedure.