Case from the Lands Tribunal for Scotland considering the title to the common parts of a development at Corstorphine Road in Edinburgh.

The case follows on from PMP Plus Ltd v The Keeper of the Registers of Scotland and others[1] and Lundin Homes Ltd v. the Keeper. PMP confirmed that it was not competent to convey the common parts of a development which are described by reference to a future event (e.g. conveying what will be left when the development has been completed). Lundin also made it clear that, for titles registered in the Land Register, there must be a sufficient description[2] of property within the conveyance[3] (whereas for Sasines titles it is competent for the extent of property to be identified by extrinsic evidence).

This case considers whether the owners of houses within the development with titles recorded in the Register of Sasines[4] may have obtained rights in the common parts by prescriptive possession.

The dispositions in favour of the home owners contained the following clause:

 “… (Three) a right in common with the proprietors of all the other dwellinghouses in the development of which the subjects hereby disponed form part to areas of open space amenity ground and/or wooded areas and unallocated parking spaces formed or to be formed in accordance with the requirements of the Local Planning Authority (the exact extent of which areas may not yet have been defined) unless and until said areas and unallocated parking spaces may be formally taken over by the Local Authority …”.

The developer (Miller Homes) received a conveyance of an undeveloped area of ground within the development from a group company and registered a title to it in the Land Register. The Keeper excluded indemnity on the basis that proprietors of the houses who held Sasine titles may have acquired prescriptive rights of common ownership in the area.

Miller argued that, in accordance with the decision in PMP, the house owner’s titles were not habile to found prescription as they were described by reference to an uncertain future event.

The Tribunal found that, whilst it was not possible to found prescription on titles to common areas still to be formed or to be defined[5] at the time the dispositions of the individual plots within the development were granted, the clause also refers to areas which had been formed and defined and it was possible that prescription could run on Sasine titles where the common area had been formed and defined at the time a disposition[6] of the relevant plot was granted.

No individual owner had entered appearance in appeal and the Tribunal decided to re-intimate the appeal to all the individual proprietors in order that they should have an opportunity to enter appearance and attempt to set up a competing title.

The full decision is available from the Lands Tribunal for Scotland here.

A blog on Registers of Scotland’s policy with regard to development common areas is available here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Lands Tribunal for Scotland in which Ms Rivendale sought to appeal the Keeper’s refusal to rectify the Land Register in her favour.

Background
Ms Rivendale purchased a cottage in Tarbert, Argyll in 2010 but was unable to register title to an area of ground in front of the cottage as it was included in her neighbour’s title. The tribunal found that Ms Rivendale was the “true owner” of part of the area of ground and that the register was inaccurate in that respect. However, in terms of s9(3) of the Land Registration (Scotland) Act 1979, the register cannot be rectified[1] where rectification would result in prejudice to a proprietor in possession. Ms Rivendale’s neighbour, who had used the disputed area (on part of which there was a track) to access two building plots and other land owned by her, argued that she was a proprietor in possession and would suffer prejudice if the register were rectified.

Reasoning
When considering the issue, the tribunal took the view that, in this case, it was not sufficient simply to decide whether or not the neighbour was in possession of that area as a whole. Rather, because there were two different characters of use of the area in question (Ms Rivendale used the area as garden ground and her neighbour used it as an access track), the matter became a question of finding where one use ended and the other began.

Decision
As such, the tribunal found that the neighbour was the proprietor in possession of part of the property on which there was a track but not a part which was grassed nor a part on which there were flower beds. As a consequence, Ms Rivendale was entitled to rectification of the register in respect of the part of the disputed area which extended to the edge of the track but not to the part on which the track was situated.

The full decision is available from the Lands Tribunal for Scotland here.

(See appeal to the Inner House below)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Lands Tribunal for Scotland in which Lundin homes appealed against the Keeper’s decision to exclude indemnity from their title to a development site.

Background
The site had been part of a larger development and had been intended as a detention pond for surface drainage run off but was not required for that purpose. Lundin bought the site from the receiver of the original developer. However, the Keeper excluded indemnity from Lundin’s title on the basis that the site could have been conveyed to the proprietors of the houses in the larger development as part of the common parts.

In the case of PMP Plus Ltd v The Keeper of the Registers of Scotland and others[1] it was established that it is not possible to create rights in common areas where the identification of those areas is dependent on a future uncertain event; for example, where a developer dispones properties (before the development has been completed) with a right of common property in the areas of the development which will be left over after the houses have been erected[2].

Keeper’s Argument
The Keeper argued that this case differed from PMP in that the development had been completed and the owner of the last of the houses in the larger development could have obtained title to the common areas (including Lundin’s site) as, at the time the last property was conveyed, the common areas became identified and were no longer uncertain.  On this reasoning, the Keeper argued, subsequent re-sales of the houses (after the common areas became identified by the sale of the last house in the development) would also carry a share of the common parts. The “Midas effect” effect (under which an entry on the register cannot be void, meaning that, if a title is registered, and so long as the subjects can be identified[3], that title becomes the actual title even if that does not represent the correct legal position) was important to the Keeper’s argument.

Decision
The tribunal rejected this argument finding that the common parts had not been sufficiently identified in the title to the last of the houses and noted the difficulty in determining with certainty when a development has been completed[4]. The title to the last of the houses did not show or attempt to describe the extent of the common parts or all of the boundaries of the other properties. The development title which had been marked up with progressive titles by the keeper did show all of the boundaries and common parts but it had been “closed” meaning that it was not public and could only be searched internally by Registers’ staff.

The tribunal found that reference to extraneous material, (with the possible exception of other publicly accessible registered titles) in order to establish completion and identify common parts is incompetent. As such, the owner of the last house to be sold in the larger development had no right to the Lundin site (or indeed the rest of the intended common areas within the development) and the Keeper had not been entitled to exclude indemnity when registering Lundin’s title.

It was also noted that re-sales of the houses did not include a right to the common areas as, even with the assistance of the “Midas” effect, the conveyance only disponed what was contained in the title sheets and the titles in the re-sales suffered from the same lack of description as the first purchases.

The full decision is available from the Lands Tribunal for Scotland here.

(See also Miller Homes Limited v The Keeper of the Registers of Scotland, LTS/LR/2013/06).

A blog on Registers of Scotland’s policy with regard to development common areas is available here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Lands Tribunal for Scotland in which Mr and Mrs Franklin sought variation or discharge of a title condition preventing them from building a two-storey extension at their house in Dalgety Bay. Mr Lawson was a neighbour who objected to the extension on the basis that it would interfere with his view and take sunlight from his garden.

A condition in a prior feu disposition prevented alterations to the house without the consent of the superior. This condition was supplemented by another condition which allowed the feuars to enforce the conditions of their feu dispositions against each other but only with the superior’s consent. There was also a further clause giving the superiors the right to waive or vary all conditions.

The question arose as to Mr Lawson’s right to enforce the burden. In terms of section 52 of the Title Conditions (Scotland) Act 2003, following feudal abolition and removal of the superior, burdens created under a common scheme can be enforced by the proprietor of any property within the common scheme. However there must also be nothing in the title of the burdened property indicating that there are no third party rights of enforcement. Usually, the superior’s right to vary or waive the real burdens will indicate that there are no third party rights of enforcement. That was the situation in this case and, although there was also a positive power allowing the co-feuars to enforce the conditions, the tribunal found that (due to requirement for superior’s consent) the effect of the provision was simply to reinforce the proposition that the ultimate right of enforcement rested with the superior not the co-feuars. Thus Mr Lawson could not enforce the burden under s52.

However, the tribunal found that Mr Lawson had a right to enforce the burden under s53 of the 2003 Act under which properties within a group of related properties can enforce burdens imposed under a common scheme against other properties within the group. (There is no requirement that there be nothing indicating that there are no third party rights of enforcement under s53).

In terms of s8 of the 2003 Act a person can only enforce a real burden if they have an interest to enforce it. In order to have an interest to enforce it, a breach of the burden must result in “material detriment” to the value or enjoyment of the enforcer’s property. There was some discussion as to Mr Lawson’s interest to enforce. However the Tribunal took the view he did have an interest to enforce and said the following with regard to the meaning of “material detriment”:

“It is enough to say that we are satisfied that [Mr Lawson] does have an interest to enforce. As will appear from the discussion below, we have no doubt that the extension would have a material adverse impact on the respondent’s enjoyment of his property within the meaning of sec 8. In that context we see no reason to exclude the special attraction the view has for the respondent himself as an aspect of enjoyment of the property but, in any event, where there is an identifiable element of detriment which cannot be disregarded as insignificant or of no consequence, it seems to us that the test of materiality can be met. We think this is in accord with the substantive views expressed by the Sheriff Principal in Barker v Lewis at [27]. We do note that at para [24] he described “material” as an adjective of degree. However, this may be misleading. It can properly be seen to have a primary meaning as simply the opposite of “immaterial”. Determination of what is “material” does involve assessment of matters of degree but what is required is a decision as to whether or not the subject matter is “material”. The term is not primarily an adjective expressing quantity.”

After hearing the evidence, the Tribunal agreed to vary the title condition to the extent necessary to permit the Franklin’s proposed extension. No compensation was awarded to Mr Lawson. Although the Tribunal accepted that variation of the condition would result in a degree of loss to him, it noted that compensation could only be awarded for “substantial loss” and it could not find sufficient material to justify making any award.

The full decision is available from the Lands Tribunal for Scotland here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering the competency of the Lands Tribunal to discharge or vary conditions in a registrable lease in terms of s90 of the Title Conditions (Scotland) Act 2003.

The Co-operative Group, who were tenants under a 125 year lease of subjects at the Paisley Centre, sought to discharge or vary certain provisions including restrictions on the use of the property and a “keep open” clause contained in the lease.

The Lands Tribunal had rejected Propinvest’s (the landlord) preliminary arguments that it had no jurisdiction to vary or discharge the conditions. However, an extra division of the Inner House held that the Lands Tribunal had “gone too far, too fast and on inadequate foundation” in rejecting Propinvest’s challenge to their jurisdiction.

The Inner house found that the Lands Tribunal had not applied their minds to a significant aspect of the decision in George T Fraser Limited v Aberdeen Harbour (1985). It was clear that the legislature did not intend all title conditions in registrable leases to be susceptible to the Lands Tribunal’s jurisdiction[1] and, in Fraser, the Lord President (Emslie) had[2]: identified two potential areas of limitation:

1)     that the condition must “relate to land”; and

2)     that there must be an obligation. I.e. a burden on an established right.

With regard to the second area of limitation, the court in Fraser had held that the Lands Tribunal had no jurisdiction to interfere with a clause which, by excluding assignees without the landlords consent, essentially defined the tenant’s identity from the outset. Such a clause was not a true burden just an important delimitation of the initial grant.

The Inner House found that, when rejecting Propinvest’s challenge to its jurisdiction, the Lands Tribunal had not considered the second aspect of the Fraser decision and had failed to consider whether Fraser laid down a principle of general application which should have been followed. Fraser was plainly of high authority and it was at least arguable that the court there did seek to identify a principle of general application.

The Inner House sustained Propinvest’s appeal and allowed a proof before answer on all aspects of the dispute including whether the Co-operative Group could bring their application within the proper scope of the Lands Tribunal’s jurisdiction noting that a decision should not be reached without the fullest consideration of the Fraser decision.

The full judgement is available from Scottish Courts here.

 All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.