Heritable property – Land obligation – Title conditions – Discharge or variation – Servitude – Discharge by confusion – Real burden – Benefited property – Building restriction – General amenity –Purpose – Relevance of previous cases – Use of authorities – Value of site inspection –Assessment of reasonableness – Statutory factors – Balancing of factors – Order of ranking – Relative weight of factors – Conveyancing and Feudal Reform (Scotland) Act 1970 – Title Conditions (Scotland) Act 2003, section 98, section 100 - Lands Tribunal for Scotland Rules 2003 – Interpretation Act 1978, section 17

Ord v Mashford and Others
2 & 3 February 2005

The applicants sought discharge of a land obligation affecting subjects presently used as a small field lying in what is now a residential area in Biggar. The obligation referred to appeared in a Deed of Servitude which narrated that it was being executed in order to give effect to an agreement that there should be no building south of an identified line across the field. Its terms in fact prevented all building on the field. The right conferred by the Deed of Servitude was expressly in favour of a piece of ground then, and at the date of application, occupied as garden ground. The Tribunal agreed that for the purposes of the assessment on the merits, the benefit could be attributed to the relevant dwellinghouse. The application was brought under the Conveyancing and Feudal Reform (Scotland) Act 1970 for discharge. The applicants in fact sought to present it under reference to the Title Conditions (Scotland) Act 2003, they agreed that variation would be sufficient. The Tribunal held that it was appropriate to determine the matter by reference to that Act.

In the Note the Court gave guidance as to the use of prior authorities. They would be helpful in allowing parties to understand the principles upon which the Tribunal proceeded but were seldom of direct assistance to the Tribunal in the exercise of its discretion under the Act. That exercise involved a weighing of all the factors set out in section 100 and coming to a conclusion on the basis of assessment of them all. The Tribunal made various observations as to the significance and weight which might be expected to be attached to each element. It was noted that in the normal course it would be important to identify purpose. This would make it easier to decide whether any change was relevant. It would also be an important element in determining the weight to be attached to any loss of benefit to a benefited proprietor.

It was contended that a servitude had been created in favour of one of the adjacent houses which also prevented building in the field. However, the applicants had been proprietors of this house and of the field at the same time. It was contended that it had been extinguished confusione.

Held (1) that the adjacent proprietor was not a benefited proprietor because any servitude created in favour of that property had been extinguished confusione when both subjects were in possession of the one proprietor, the current applicants; (2) that in any event it was not clear that there had been any intention to impose an obligation running with the land; (3) that having regard to the nature of the amenity preserved by the obligation in favour of the actual benefited subjects and having regard to all the factors set out in section 100 the Tribunal was satisfied that it would be reasonable to vary the obligation to allow the building of a single storey house to the north of an identified line across the burdened field.

Decisions referred to

Anderson v Trotter 1998 SC 925
Bolton v Aberdeen Corporation 1972 SLT (Lands Tr) 26
Donaldson’s Trustees v Forbes (1839) 1D 449
George Wimpey East Scotland Ltd v Fleming & Others (unreported) LTS/LO/2004/19
Gorrie & Banks Ltd v Musselburgh Town Council 1974 SLT (Lands Tr) 5
Kemp v Magistrates of Largs 1939 SC (HL) 6
Main v Lord Doune & Others 1972 SLT (Lands Tr) 14
McArthur v Mahoney 1975 SLT (Lands Tr) 2
McLean v Kennaway (1903) 11 SLT 719
Mercer v MacLeod & others 1977 SLT (Lands Tr) 14
Murrayfield Ice Rink Ltd v Scottish Rugby Union 1973 SC 20
Ness v Shannon & Others 1978 SLT (Lands Tr) 13
Railtrack plc and ors. v Aberdeen Harbour Board (LTS/LO/2001/13)
Robinson v Hamilton & Others 1974 SLT (Lands Tr) 2
Stevens v Smith LTS/LO/1996/16 – unreported
Smart v Myerscough & Others LTS/LO/2001/32 & 33
Tailors of Aberdeen v Coutts 1840 1 Rob. App. 296
Union Bank of Scotland Ltd v Daily Record 1902 10 SLT 71


Gretton & Reid, Conveyancing (3rd edition)
Halliday, Conveyancing Law and Practice (2nd edition)

See full decision:  LTS/LO/2004/16