Is the right to seek division and sale an absolute remedy which could be resorted to even if it flies in the face of the terms of a contractual Minute of Agreement?

Not so, according to the judgment in Fraser v Fraser.

The parties had entered into a Minute of Agreement, but there had been difficulties in implementation. The remedy sought was division and sale.

The Pursuer relied on Grant v The Governors of George Heriot's Trust as authority that division and sale was a common law right.

But the Sheriff ruled that what was meant in the Grant case when the Lord President said 'The Law of Scotland has always held that the state of joint property may be brought to an end at the instance of any one of the proprietors pursuing a division' was only that no proprietor could be compelled to remain as a common owner. He was not referring to the method by which the bonds of common ownership could be broken

The Minute of Agreement therefore did not exclude the right to have the bonds of common ownership severed, but provided the method by which it will be achieved. The jurisdiction of the court had been ousted for as long as the contract remains in force.

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