Heritable Property – Title Conditions – Variation – Ground flat in converted mansionhouse – Deed of conditions prohibiting either external or structural alterations without unanimous consent of other proprietors – Proposed conversion of window into French door to provide secondary access to flat – Reasonableness – No adverse effect on interests of other proprietors – Title Conditions (Scotland) Act 2003, Ss. 90(1)(a), 98(a), 100.

Ritchie v Douglas & Ors
11 January 2008

A large mansionhouse with extensive, attractive grounds had been converted into 15 flats. A Deed of Conditions dated 1986 contained prohibitions of external, or structural, alterations except with the unanimous consent of the other proprietors. A ground flat proprietor wished to create a secondary access to her flat by converting a three-quarters length window into a French door, a plan for which she had obtained planning (including Listed Building) consent and a building warrant. 10 other proprietors objected, referring inter alia to a history of alleged difficulties with the applicant. The application was disposed of on written submissions and a site inspection.

Held, granting the application, the Tribunal was not concerned with the rights and wrongs of the previous disagreements, but would bear in mind that the applicant’s proposal involved obtaining access to the communal garden across a (communal) flower bed. No question arose as to the structural integrity of the building. The purpose of the condition in relation to external alteration was to preserve the external appearance of this attractive building. That had been considered important, as other types of proposal required only majority or four-fifths support. However, on the evidence and inspection, the applicant’s proposal could not be seen as threatening the external appearance: to the contrary, it followed carefully the design and particular pattern of the astragalled windows. Nor would it interfere with the pleasant quiet ambience on this side of the house. The flower beds had already suffered intrusions of various kinds. While the condition was an important benefit, the right to veto this proposal was of little real benefit. Inability to proceed did to an extent frustrate the applicant’s enjoyment of her property. Other factors under Section 100 were neutral or of no significance. Weighing matters up, the Tribunal was satisfied that the application for variation was reasonable.

Authorities referred to: None

See full decision:  LTS/TC/2007/26 and LTS/TC/2007/26 (Expenses)