Heritable Property – Title Conditions – Discharge – Competency and relevancy – Right in common – Application by upper floor proprietor to discharge lower floor proprietor’s right in common to roof, and access thereto, to enable loft space to be converted into bedrooms – Whether ‘title condition’ – Title Conditions (Scotland) Act 2003, Ss. 90(1)(a)(i), 122(1)

Dalby and Another v Bracken
13 June 2008

The lower floor proprietor of a house had a right in common to the roof, with a right of access thereto. The upper floor proprietors wished to convert the loft space into bedrooms, involving the installation of windows. They applied to discharge the right in common and right of access. The lower floor proprietor opposed, arguing that the application was incompetent. The Tribunal considered the preliminary issues of competency and relevancy on the basis of written submissions, and without any site inspection.

Held, dismissing the application, such a right in common was not a ‘title condition’ within the meaning of Section 122(1) of the 2003 Act. The Tribunal had no jurisdiction to remove or interfere with it, or to create a new burden over it without the owner’s consent. The application to discharge it was incompetent. The right of access was a real burden, but the application for its discharge was inextricably linked with the incompetent application to discharge the right in common. Since the right in common could not be interfered with, there was no valid basis for the application to vary or discharge the right of access. The application was irrelevant.

Authorities referred to:-


See full decision:  LTS/TC/2007/51