Heritable property – Title conditions – Enforceability – Implied rights of enforcement – Feu Charter conveying 6 lots of building ground – Obligation to build houses on plans and elevations to be approved subject to regulation of sites, building materials, etc and ongoing burdens including restrictions on additional building – Uniform terrace of houses within one building lot – Whether ‘common scheme’ – Whether ‘related properties’ – No shared ownership or common management – Ongoing feuing conditions analogous to deed of conditions – Condition held enforceable by neighbouring proprietor – Title Conditions (Scotland) Act 2003, Section 53(1),(2)

Heritable property – Title conditions – ‘Sunset Rule’ – Renewal or Variation – Building restriction in 1888 Feu Charter – Terrace house – Proposed alteration and extension to rear – Benefited proprietor willing to agree smaller, lower extension – Whether burden should subsist, and, if so, whether should be varied to permit proposed development - Consideration of reasonableness factors – Whether apparent withdrawal of superior many years previously from involvement relevant – Weight to be attached to age of burden – Condition varied to permit terminator’s proposed development – Title Conditions (Scotland) Act 2003, Sections 20, 90(1)(b)(i), 98(a), 100

Brown and Another v Richardson and Another
8 May 2007

The respondents wished to alter and extend their terraced house which was burdened by building restrictions contained in an 1888 Feu Charter. They executed a notice of termination under Section 20 of the 2003 Act (“Sunset Rule”). This was intimated to neighbouring proprietors including the applicants, their immediate neighbours on one side. The applicants, although willing to agree to a smaller and lower extension, were opposed to the proposed extension and applied under Section 90(1)(b)(i) for renewal or variation of the title conditions.

The Feu Charter conveyed 6 building lots with a building obligation, the houses to be built on plans and elevations to be approved by the superior, with various provisions regulating the sites on which houses were to be built, frontages, materials to be used, etc. There were also ongoing burdens including the restrictions on further building. A street plan for the area in which the building lots were scattered was laid out following a clear pattern and the whole area was in due course developed. The lot in which the subjects were situated included the uniform terrace of granite houses but also another street which was not all developed until later and not as uniformly. Over the years there had been some extensions to the rear and various huts, garages, etc. built in the rear garden areas. There was no common ownership or maintenance.

The respondents argued that in the circumstances the applicants could not invoke Section 53 and accordingly were not benefited proprietors entitled to bring the application. Alternatively, the title conditions should be discharged or at least varied so as to permit the extension as proposed. This involved a substantial extension demolishing the original outhouse and replacing it with a larger extended and living area. It would increase the ground floor area of the house by more than 40%. The natural light to the rear of the applicants’ house was already affected by a block of flats at the end of the terrace and by some shrub, etc. growth beside the mutual boundary wall, but this extension would present a substantial mass which would have a slight overbearing effect but no effect on privacy. Planning permission had been granted after some slight modification of the proposal in an attempt to meet the applicants’ objections.

Held, allowing the application but only to the extent of varying the title conditions so as to permit the respondents’ proposed development:-

(1) the real burdens were enforceable by the applicants, who were accordingly entitled to bring the application. There was no suggestion that the burdens had not remained valid and enforceable by the superiors until that interest was abolished. Section 53 could apply to make the applicants benefited if there was a ‘common scheme’ and if their property was a unit within a ‘group of related properties’. There was a clearly discernible scheme regulating the residential development of the area. Alternatively, each of the lots involved such a common scheme. The lack of complete uniformity of design and construction was not fatal. The ‘group of related properties’ need not be all the properties benefited under the common scheme, and in this case was the terrace. None of the circumstances set out in Section 53(2) was met, but the Feu Charter conditions, including ongoing burdens, were analogous with a deed of conditions (Section 53(2)(c) were analogous. The degree of uniformity in the terrace, produced through the Feu Charter, was relevant. Age itself was irrelevant, and the fact that the superior had apparently given up involvement many years previously did not appear to affect this issue. The test in Section 53 was established.

(2) The ‘merits’ involved consideration whether the burdens should continue to subsist at all; and if so, whether, they should be varied to permit the proposed extension. The burdens ought not simply to be terminated. Their purpose was to protect amenity in a general way, in the interest of the superior. However, they could now benefit the neighbouring proprietors as well as providing an impediment to proposed uses. Although there had been quite a few changes in the areas behind the houses, there had been no material change in the character of the neighbourhood. A very old burden which was still serving, or could still serve, its original purpose might reasonably be kept in being. Planning consent did not necessarily address particular private interests.

On balance, however, the conditions should be varied so as to allow the extension as proposed to proceed. There was some reason to be concerned about the size of the extension, but it would not be reasonable to interfere with either the height or the length. Doing either would involve very substantial impediment to the respondents but make only a marginal difference for the applicants. The extension as a whole would have rather less impact than the respondents feared. Any prospective purchaser of the applicants’ house would not consider it to be any real disadvantage. There were other extensions of comparable extent and impact in the surrounding area.

Authorities referred to:-

Hislop v McRitchie’s Trs 1881 8R (HL) 95
Turner v Hamilton 1890 17R 494
Bachoo v George Wimpey & Co 1977 SLT (Lands Tr) 2
Cameron v Stirling 1988 SLT (Lands Tr) 18
Stoddart v Glendinning 1993 SLT (Lands Tr) 12
Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 59
Church of Scotland General Trs v McLaren 16.3.2005, LTS/LO/2004/17
Conveyancing (Scotland) Act 1874
Abolition of Feudal tenure (Scotland) Act 2000
Title Conditions (Scotland) Act 2003
Scottish Law Commission, Report on Real Burdens (No 181)
Reid, The Abolition of Feudal Tenure in Scotland
Professor McDonald’s Conveyancing Manual, 7th Ed’n
Gretton & Reid, Conveyancing, 3rd. Ed’n
Rennie, Land Tenure in Scotland
Agnew of Lochnaw, Variation and Discharge of Land Obligations
Wilkinson & Young, Scottish Planning Law and Procedure
Young, Scottish Planning Appeals
Reid & Steven, Revolution in Land Law Series – Enforcement and Extinction of Real Burdens, Edinburgh University, 2004
Steven & Wortley, ‘Is that burden dead yet?’ 2006 JLSS 46

See full decision:  LTS/TC/2006/41