Heritable Property – Title Conditions – Ground and basement flat with separate mews cottage forming part of a flatted villa – Disposition restricted occupation to only one family in respect of each flat. Discharge sought – Effect was to prevent the separate sale of the mews cottage – Opposition from other flat owners – fears of precedent being set – Reasonableness – Purpose – Extent of burden and benefit – Variation granted – Title Conditions (Scotland) Act 2003 Sections 90(1)(a)(i), 98, 100

Verrico v Tomlinson and Findlay
13 May 2008

The subjects are a ground floor and basement flat within a substantial, detached villa which had been divided to form four flats. To the rear is a shared courtyard giving access to various garages. Forming part of the ground and basement flat property, is a contiguous mews cottage. Although owned with the ground and basement flat the only access to the mews cottage is from the courtyard. Clause fifth in the disposition of October 1950 restricts use of the applicant’s flat to a private residence for one family and there is a similar condition in the titles of the other three flats. The applicant sought discharge of the title condition in respect of his property but two of the flat proprietors objected on the basis that further subdivision, if permitted, would generate additional occupiers to the detriment of amenity and there would be increased congestion in the courtyard. The application was disposed of on written submissions and a site inspection

Held granting variation, the Tribunal was satisfied that it was reasonable to grant the application but only to the extent of varying the title condition to enable the mews cottage to be separately occupied. The tribunal considered that the purpose of the condition was to preserve the amenity of the building by restricting occupation of each flat to only one family. This has the effect of preventing multiple occupation of each flat. It was noted that many of the nearby villas had also been split into flats. The impact of the applicant’s proposal on the other residents, to separately occupy the mews cottage, would, in the tribunal’s view, only be modest. However the impact on the applicant who is unable to sell the mews cottage as a separate dwelling, despite the fact that it is self contained, is considerable.

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr)15

See full decision:  LTS/TC/2007/37