[1] The applicants own an upper floor house. They wish to convert the loft space into bedrooms, involving installation of windows in the roof covering. The respondent owns the ground floor house and has a common right in the roof, with a right of access through the applicants’ property. In this application under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the Act”), the applicants seek discharge of the right of access and of the common right. The respondent opposes, and argues amongst other things that as a matter of law the Tribunal’s jurisdiction does not extend to discharge or variation of the common right of property.
[2] Having considered the parties’ submissions, the Tribunal is in agreement with the respondent’s position. The Tribunal’s jurisdiction under the Act does not give us power to discharge or vary rights in property, or to authorise interference in rights of property, which are not title conditions within the meaning of the Act. Since the whole application is founded on a misconceived attempt to invoke our jurisdiction for a purpose for which it is not available, the application must be dismissed.
[3] Dr Matthew Dalby and Dr Catherine Dalby (“the applicants”), proprietors of the upper floor house at 14 Barra Street, Glasgow, applied to the Tribunal for discharge of certain rights in favour of John Bracken (“the respondent”) as proprietor of the house at 30 Dungoyne Street, Glasgow, which is in fact the ground floor of the same house. These rights are set out in a Disposition by John Maxwell and another in favour of Glasgow Corporation dated 7 November and recorded in the General Register of Sasines for Glasgow on 3 December 1963. This was a conveyance of the ground floor house now owned by the respondent, and conveyed inter alia:-
“(Third) a right in common with us and our successors as proprietors of the dwellinghouse known as Number Fourteen Barra street, Maryhill, Glasgow, and forming the upper or first floor dwellinghouse of the said building referred to … (secundo) … (b) the … roof and eaves of the said building … with access thereto for all necessary purposes through the said upper floor dwellinghouse and by the hatchway leading to the roof … ”
The respondent opposed the application. He raised points of competency and relevancy as well as on the merits and compensation in the event of the application being allowed. The applicants were represented by Messrs A & S Ireland, Solicitors, Glasgow. The respondent was represented by Messrs Miller Beckett & Jackson, Solicitors, Glasgow. The parties were agreeable to the application being disposed of on the basis of written submissions, in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003. The Tribunal was of the view that the legal issues raised by the respondent should be decided before any consideration of the ‘merits’, and accordingly considered these issues on the basis of the written submissions and without any site inspection. In accordance with its usual practice in relation to disposal of cases on written submissions, the Tribunal gave parties the opportunity of making any final submissions in addition to the submissions in the application and answers, as adjusted. Neither party lodged any such further submissions.
[3] The applicants submitted that the right in common to the roof, being referred to in the 1963 Disposition, was a ‘Title Condition’ within the meaning of the Act. The title condition was a real burden within Section 1 of the Act. Accordingly, the application was appropriate and competent and the application should proceed on this basis. The roof space no longer contained any common water tank, etc. and access was no longer required through the burdened property. The condition did not provide any benefit to the benefited property and prevented the proprietor of the burdened property from converting the loft space, part of which work involved the installation of additional windows in the roof covering. The roof covering would remain common to the benefited and burdened properties. The purpose of the title condition was to allow the ground floor proprietor access through the upper floor house by a hatchway leading to the roof for the maintenance of the common tank, etc. Necessary public approvals were likely, and the benefited proprietor would not suffer substantial loss or disadvantage. The respondent had given no reason why he objected to the installation of windows where they would not affect the integrity of the roof and the applicants would accept liability for their maintenance and repair.
[4] The respondent submitted, in relation to this legal issue, that the right in common, occurring in the dispositive clause of the title, is not a ‘title condition’ in terms of the Act and accordingly the application to vary it is inappropriate and incompetent. He denied that access to the roof was no longer required. He also submitted that any alteration to the roof required the consent of all the common proprietors, and therefore his consent was required for the installation of windows. He was not willing to consent.
[5] In the Tribunal’s opinion, the respondents’ submissions are to be preferred. The applicants have failed to persuade us that we have jurisdiction to interfere with common rights to property.
[6] Our jurisdiction under section 90(1)(a) is a jurisdiction to discharge or vary title conditions (or purported title conditions). Section 122(1) of the Act defines ‘title conditions’ as meaning one of a number of different things. The list includes real burdens and servitudes, but not rights of ownership of property. The applicants argue that the right in common is a title condition which is a real burden. Section 1 of the Act provides as follows:-
“1 (1) A real burden is an encumbrance on land constituted in favour of the owner of other land in that person’s capacity as owner of that other land.”
The right in common to ownership of the roof of this dwellinghouse cannot be seen in that light. It is not an encumbrance on the applicants’ property in favour of the owner of other land in that capacity, but rather itself a right in property conveyed to the respondent’s predecessor in title and in due course to the respondent. Nor can it be brought within any of the other categories of title condition recognised in section 122(1). We have no jurisdiction to remove a right of ownership.
[7] Nor do we have any jurisdiction to authorise the interference with the right of ownership which would be involved in the installation of windows in the commonly owned roof. Generally, we have no jurisdiction to create new burdens without the consent of the owner who would be burdened. (The Act has introduced one situation in which community burdens can be so varied as to have the effect of imposition of new burdens without the burdened owner’s consent, but this is not an application of that type.)
[8] Accordingly, whether or not the applicants’ proposals are reasonable – as to which we express no opinion – we cannot consider this application to discharge or vary the right in common. The right of access to the roof through the applicants’ property does meet the definition of a title condition, so this part of the application could be competent. However, as it is inextricably linked with the application to discharge the right in common, this part of the application also cannot proceed. Put another way, the application to discharge or vary the right of access arises as part of the proposal to carry out the conversion work involving breaching the fabric of the roof to create new windows. Since that cannot happen, because the joint owner of the roof does not agree and the Tribunal has no jurisdiction to vary his right of ownership, and since the respondent will therefore retain his right in common to the roof, there is no basis for the application to vary or discharge this right of access to it. That would involve considering whether an owner was to be deprived of access to his own property.
[9] For these reasons, the tribunal has decided to dismiss this application as incompetent and irrelevant. We stress that we have not considered and have no view on the question whether the applicants’ proposals are reasonable.
[10] If any issue arises as to expenses, the Tribunal will, in accordance with our normal practice, consider this also on the basis of written submissions.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 13 June 2008
Neil M Tainsh – Clerk to the Tribunal