1. This is an application, now under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), by the basement flat proprietors of a divided terrace house at 4 Fettes Row, Edinburgh. They wish the Tribunal to discharge a right of other proprietors to use the garden ground for the purpose of drying clothes, with access thereto. The application is opposed by the ground, first and second floor proprietors, whose position is that the Tribunal has no jurisdiction because the right is a right of ownership in common; or alternatively, if it is a ‘title condition’, it is not in the circumstances reasonable to discharge it.
2. In summary, the Tribunal has decided as follows:-
(i) The applicants, as owners of the basement flat at 4a Fettes Row, Edinburgh, are owners of a property burdened by a ‘title condition’, viz. servitude rights in favour of each of the respondents as owners of the ground, first and second floor flats. The Tribunal accordingly has jurisdiction under Section 90(1)(a)(i) of the Act.
(ii) It is reasonable to grant the application for discharge of the title condition.
Accordingly, the application is granted and discharge of the title condition will be ordered.
3. The first division of ownership of flats at 4 Fettes Row, Edinburgh, was a Disposition by Christiana Macleod or Ogilvy, as proprietor of the whole house and garden, of the first floor flat, in favour of George A. Foley and Another, recorded in the General Register of Sasines, Midlothian, on 11 July 1944 (“the 1944 Disposition”). This conveyed, along with the said flat, inter alia:-
“ … a right in common along with me as the proprietrix of the remaining dwellinghouses in said building … (Three) to use the garden ground behind the said building for the purpose of drying and bleaching clothes with right of access thereto by the existing back stair leading to the said garden ground;”
4. Dispositions by the Trustees of Christiana Macleod or Ogilvy, of the basement flat, second floor flat and ground flat recorded in the General Register of Sasines, Midlothian, on 23, 23 and 24 January 1957 respectively (“the 1957 Dispositions”), conveyed, along with each flat, inter alia:-
“ … a right in common along with the proprietors of the remaining dwellinghouses in said building … (Three) to use the garden ground behind the said building for the purpose of drying and bleaching clothes with right of access thereto by the existing back stair leading to the said garden ground;”
(except that in the Disposition of the basement flat, the final word, “ground”, does not appear). The title to the ground and second floor flats are now registered titles, respectively MID34656 and MID21923, the title sheets of which both include the right in the description of the subjects in the Property Section.
5. James McKenzie and Mrs Mary McKenzie, proprietors of the basement flat at 4a Fettes Row, Edinburgh, applied to the Tribunal under both section 90(1)(a)(i) and 90(1)(a)(ii), for declarator to the effect that the right, which they claimed was a ‘title condition’, had prescribed, or alternatively for discharge of the right. Hilary Scott, Josephine Kim and Robert Cole, proprietors respectively of the first floor, ground floor and second floor flats at 4 Fettes Row, all opposed the application on both aspects. At the oral hearing, the applicants were represented by Mr Clark, Solicitor, of Messrs Hughes Walker, Edinburgh, who called the applicant Mrs McKenzie, her daughter Dr Karen McKenzie and Karoline McLean, who had lived in the ground flat from about 1988 to 1991, as witnesses. The respondents Scott and Kim were represented by Mr Barne, Advocate, instructed by Messrs Drummond Miller, Edinburgh, who called each of these respondents as witnesses. Various documentary productions were also lodged. The respondent Cole adhered to his objections but did not appear at the hearing. The Tribunal also carried out an accompanied site inspection.
6. At the beginning of his closing submissions, Mr Clark accepted that the right, which he claimed was a servitude, was not susceptible to the Tribunal’s declaratory jurisdiction under Section 90(1)(a)(ii) and accordingly did not seek to insist on that part of the application.
W.V.S. Office Premises Ltd. v Currie 1969 SC 170
Dalby v Bracken LTS/TC/2007/51, 13.6.2008
Reid, Law of Property in Scotland, paras. 22, 232
Gretton & Reid, Conveyancing (3rd Ed.), para. 11-26
7. On the basis of the evidence and submissions and the Tribunal’s own inspection of the building and garden at 4 Fettes Row, we found the facts, so far as material, to be as follows.
8. Fettes Row is a typical Edinburgh Georgian terrace of stone-built dwellings dating from about 1849. The front elevation faces north and there is accommodation on lower basement, basement, ground, first and second floor levels. 4 Fettes Row appears to have been originally designed as a single dwelling, but had been divided into four flats at second, first and ground floor and basement (with sub-basement) levels by the time of the first ‘break-off’ disposition in 1944, after which the other three flats remained in the same ownership, although none of them appears to have been occupied by the owner, until they were sold and disponed in 1957.
9. From the street the access to ground and upper floor flats is by way of the entrance platt and main door, which leads into the common entrance hall from which there is access to the ground floor flat. Stairways lead down to the basement flat and up to the first floor landing and flat and then to the second floor flat. A hatch at second floor ceiling level over the stairs gives access to the roof space. Entrance to the basement flat, No. 4a, is from the pavement by way of steps which lead down to the basement level front area or courtyard. Off this area are three cellars owned by the basement, ground and second floor flat proprietors.
10. The internal stair to the basement off the common entrance hall is enclosed by a timber glazed screen incorporating an unlocked door located at the top of the stair. Towards the bottom of this stair are the remains of a timber partition which for a period blocked access down the stair. At the bottom a locked door gives access to the basement flat passage. On the basement flat side this door has been concealed with boarding and decorated.
12. In the basement flat a passage leads from the front door through towards the rear of the flat and all principal rooms lead off this passage, as does a stair down to the lower basement level. The only toilet available to the basement flat is at the end of the passage, at the rear of the flat and only accessible from the passage.
13. The south-west most room in the basement, also accessed from the passage, is currently used by the applicants as a small sitting room or garden room. It has an original fireplace and is about 2.1 metres by 3.6 metres. This room provides access to the garden, by a door leading out to a rear paved area or patio about 3.6 metres deep which extends virtually the full width of the building.
14. Steps lead up from the patio area to the back garden which has a width of about 8.3 metres and a depth of about 19.8 metres. The garden slopes gently upwards towards the rear wall. It is now attractively laid out with borders, shrubs and hard landscaping. A locked door in the rear wall of the garden gives access to North East Cumberland Street Lane. The applicants hold the keys to this door and are thus at present the only persons having physical access to the garden. The side and rear garden walls are about 6 feet high and built of stone with a dressed stone cope. Near the top of each side wall the remains of, apparently, three pairs of iron hooks originally intended to take washing lines can be seen. These hooks were removed by the applicants who now use a rotary clothes drier sited near the house. On either side of the rear garden are two similarly designed recently built mews cottages which front on to the rear lane. To the east along the lane is another recently built mews cottage and several lock-up garages.
15. When the applicants bought the basement flat in 1966 the garden was just a drying green with no flower borders or landscaping.
16. Shortly after they took occupation the applicants came into conflict with the then other flat owners in relation to rights over the garden and the access route thereto. In 1967 the four proprietors submitted a dispute to arbitration by Professor G.L.F. Henry. In December 1967 he issued his decree-arbitral covering a number of matters.
17. The 1944 Disposition disponed the first floor flat:-
“Together with the whole fittings and fixtures in the said dwellinghouse so far as belonging to me, also a right in common with me as proprietor of the remaining dwellinghouses in said building (One) to the solum on which the same are built (two) to the flight of stairs and entrance platt in front of said building, the common entrance hall and stair, hatchway leading to the roof, as also the roof itself, rhones and rain water pipes, chimney stacks, drains and all others common to the houses in said building with free ish and entry by the said hatchway for the purpose of cleaning vents and all other necessary purposes; and (three) to use the garden ground behind the said building for the purpose of drying and bleaching clothes with right of access thereto by the existing back stair leading to the said garden ground; and the whole other parts, privileges and pertinents of the house hereby disponed and my whole right title and interest present and future therein”.
18. The feuduty of £13.8.10 was apportioned as to £4 to this flat, and the flat was burdened in the same proportion with maintenance of, put shortly, the items referred to in “(two)” above. There was, however, a specific declaration that the disponee was not to be liable for any of the expenses of upkeep of the basement area, railings, cellars, stair leading thereto from the street, nor the walls of the garden ground, but was to contribute to maintaining and cleaning the “back stair leading to the garden ground”.
19. The 1957 Dispositions each followed a similar layout and disponed “a right in common with the other proprietors of the houses in the said building”, generally as in the 1944 Disposition (except that the basement flat owners were not given any right to the internal common entrance hall and stair but, correspondingly, were given a right of access over these to the roof space in which they were given the “right in common”); feuduty was apportioned as to £4 each to the ground and second floor flats and £1.8.10 to the basement flat); and corresponding maintenance burdens in the same proportions, except that there was no similar exclusion in relation to basement areas, garden walls, etc. Each of these three flats also had disponed to it one of the cellars (with, in the case of the ground and second floor flats, rights of access thereto over the basement area).
20. The 1957 Dispositions also created further burdens on the ground, second floor, and basement flats, in equal shares of one-third each, in relation to the expenses of the basement area, etc. “and also one third share of the upkeep of the said garden ground and the walls surrounding the same”.
21. Professor Henry pronounced inter alia that the door at the bottom of the back stair erected by the applicants must be removed if any or all of the other proprietors so required; that all the proprietors had a “right of common interest” in the basement passageway through to the rear door and across and up the stairs to the garden, i.e. through the garden room in the basement; and that the garden ground, i.e. the ground on the higher level above the patio area, and its surrounding walls were the property of the applicants “subject to the common interest of the other proprietors and their rights to use it in terms of the titles”; and it and its walls were maintainable by all the proprietors except the first floor flat owners to the extent of a one-third share each.
22. Each of the other owners who had been involved along with the applicants in the arbitration had moved away by 1971. Thereafter the applicants, over the years, took steps to establish exclusive control over both the garden and the access route through the building to it. They maintained a door at the foot of the internal stairs. In order to secure the privacy of the area in which the toilet and the garden room were situated, they kept this door locked from the late 1970s onwards and kept the key. They developed the drying green, at their expense, as an attractive garden area. In around 1995, on the basis of their view that the rights of other proprietors to use of the garden had prescribed, and without seeking anyone’s permission, they erected a solid partition wall behind the bottom door, i.e. towards the bottom of the internal stair. In effect, they claimed exclusive right to the garden and also to that part of the basement through which access to the garden might have been possible.
23. Since the early 1970s there have been up to about 20 owners or occupants of the other flats. Many such owners or occupants had no objection to the applicants’ activities. The garden was an attractive visual feature, for which they were not being required to take any responsibility, to the rear of their flats. Some sales particulars for the upper flats made no mention of rights in relation to the garden.
24. The respondent Ms Scott acquired the first floor flat in 1990. She was at that time advised by her solicitor by letter of the common rights in her title, including the right “to use of the garden ground”. From time to time, she asked Mrs McKenzie about this, but was told in response that the applicants owned the garden. She took no action and did not seek to insist on her right until around 2002, when matters came to a head. At that time, part of the garden wall was demolished, apparently with the applicants’ consent, in the course of building the neighbouring mews houses. Ms Scott and Ms Kim, who bought the ground flat in 2002, expressed their dissatisfaction and some sort of altercation ensued. They then felt that the matter required to be resolved and instructed solicitors. Solicitors on their behalf corresponded intermittently from 2004 to 2007 with Mrs McKenzie and her solicitors, threatening litigation, but none ensued. Mr Cole, the second floor proprietor, also opposes the applicants’ position but apparently took no positive steps other than opposing this application.
25. Apart from the respondents, a previous ground floor flat owner, Mr Ramage, questioned the position during the 1990s. Around 2002, a top floor owner, Mr Smith, broke down the partition wall which the applicants had erected in the internal stair, but did not gain access through the basement to the garden.
26. If access to the garden at 4 Fettes Row were granted for drying clothes, some owners or occupants would be likely to use this for at least heavier washing. Most modern flats do not have drying green facilities. Ms Scott washes and dries clothes in her flat, with a tumble dryer. Tumble dryers are expensive to use and not environmentally friendly.
27. On behalf of the applicants, Mr Clark, having first acknowledged that the provision could not be characterised as a real burden and therefore that he could not insist on the application under Section 90(1)(a)(ii), submitted, as a material factor under Section 100(j), that this was a servitude which was prescriptible and had prescribed. The similar provision in each of the four ‘break-off’ dispositions was a ‘title condition’, applied to the basement as well as the other properties as if the drafter had been thinking about something like a deed of conditions. The deeds went on to specify various burdens, which tended to reinforce the idea that use of the garden ground was a title condition. On the evidence, use of the garden had not been exercised by other proprietors since around 1971-73, nor had there been any serious attempt to assert the right. As a matter of implication, the garden walls, which had been mentioned only in relation to maintenance, were owned in common between the proprietors as a matter of common interest. The basement flat, however, owned the garden ground, there being no mention of ownership of this in the title.
28. In relation to the Section 100 factors, Mr Clark submitted: (a) things had changed socially, with regard to bleaching or outdoor drying of clothes; (b) in considering the present benefit to the other proprietors, the Tribunal could take the situation in modern flats, with the availability of tumble dryers, into account; (c) use of the garden by other proprietors would impede the applicants’ enjoyment of it; (e) a substantial length of time had elapsed since the condition was created; (f) while the purpose of the condition was to allow a natural use by all four proprietors, issues of security and practicality, considering the effect on the basement flat of exercise of the right, had also to be considered; (g) there was no suggestion of any planning, etc., consent; (h) the applicants were prepared to pay any appropriate compensation; and (j), as indicated above.
29. On the two respondents’ behalf, Mr Barne accepted that a right of this type could be a servitude; did not submit that if so it was imprescriptible; and also accepted that there was no evidence of any relevant claim or exercise. However, he submitted firstly that there was no jurisdiction to make the declarator sought; if the servitude were removed (as having prescribed) there would still be a question as to ownership; and it was illegitimate, under section 90(1)(a)(i), to pray in aid prescription: if it had prescribed, it would not be even a ‘purported title condition’.
30. Secondly, there was no jurisdiction to discharge the ‘title condition’ as identified, since part of the provision admittedly related to common property, the reference to the right of access by the back stairs raising the composite nature of the whole provision: the application thus strayed into the realm of common property which the Tribunal had no jurisdiction to discharge (Dalby v Bracken).
31. Thirdly, on a proper analysis, the right to use the garden was a right in common, i.e. an imprescriptible property right. C.f. W.V.S. Office Premises Ltd v Currie; Reid, particularly at Paras 22, 232 onwards; and Gretton & Reid, 11-26. The provision was part of the dispositive clause, conferring a right of common ownership, subject to a directly enforceable restriction to make sure that one co-owner did not use prejudicially to the others. A right of servitude in common made no sense. A common right would mean that prescription against one would be prescription against all. If there was ambiguity it was appropriate to look at the rest of the disposition, particularly the burdens clause, where, in relation to the garden, the maintenance obligation was referable to the right in common: generally (subject to a difference in relation to the first floor proprietor), maintenance obligations were allocated in accordance with the property rights conferred. Apportionment of the entire feuduty among the four indicated that there was no intention by the disponer to retain any proprietorial rights (W.V.S., supra, at 174, 177).
32. Fourthly, if, as the applicants contended, they were owners of the garden, they had no locus to bring this application, because there could not be a servitude over their own property.
33. Finally, in relation to the reasonableness of the application for discharge if there was here a servitude or purported servitude which had not prescribed, Mr Barne submitted that a right to dry clothing would not impose a significant additional burden on the basement flat proprietors. They could not compare this with their present exclusive enjoyment which resulted from the ‘illegal’ blocking up of the back stairs. It was a benefit to be able to hang washing up outside. People were becoming more rather than less concerned with doing this, for ecological reasons. The condition was not one of great antiquity. Older buildings had ventilation problems which the design of modern buildings might eliminate. There had been no real attempt to settle the dispute with compensation. Fire egress was another consideration. Little regard should be had for the applicants’ subjective enjoyment of the garden.
34. The physical situation with regard to the basement flat is somewhat unfortunate. At the outset of the hearing, Mr Clark indicated that he would not be arguing that there was no common right of ownership in the back stair and the passage through the basement to the back door. If there is such common property, the garden room does not belong to the basement flat and that flat has in effect only a toilet accessible from a common passage. Although this may have been reflected in a very considerably lower sale price than the prices of the other two flats sold at the same time in 1957, the applicants’ obvious wish to change that situation is understandable. We understand that they are now seeking to clarify the title with a view to sale of their property. The present application is however concerned only with the right to use the garden (and access to it), as opposed to ownership of parts of the basement.
35. We have now only to consider the application for discharge of the right. This leaves two broad issues for us, firstly, whether the Tribunal has jurisdiction to discharge; and, secondly, if so, on the merits, whether the Tribunal is satisfied that it would be reasonable to discharge.
36. Jurisdiction. To bring themselves within the jurisdiction, the applicants must show that they are “owners of a burdened property … against whom a title condition (or purported title condition) is enforceable (or bears to be enforceable)”. “Title condition” is defined by Section 122(1) of the Act as including a number of types of conditions affecting land. The applicants ultimately only relied on the contention that the right was a servitude, and maintained that, as owners of the basement flat, they own the garden ground, subject to this servitude, so that the Tribunal had jurisdiction to discharge it. The respondents’ principal contention was that each of the four proprietors had a right of common property in the garden ground. This would make the provision in relation to use of it for drying or bleaching clothes not a servitude but simply a condition applying to the common property. From that it would follow, in the respondents’ submission, that the right in question would be a right of common property which the Tribunal has no jurisdiction to discharge.
37. It appears to the Tribunal that each legal analysis is, in the abstract, possible. A right of common property may, we think, have attached to it, in effect, a management rule about the use to which the property may be put. On the other hand, Mr Barne accepted that the principal right, to use the garden for drying or bleaching clothes, was of a type which could amount to a servitude, although he submitted that a servitude in common was not possible. We are bound to say that we do not see why a servitude might not be exercised by more than one proprietor. An access road shared by a number of proprietors would seem an obvious example. It might properly be seen as servitude rights which constitute a title condition. We appreciate of course that the language used in the expression of this right, together also with the apparent conferral of the right in the applicants’ title, may be difficult, but that brings us to the sharp issue of construction of the title provisions. Mr Barne relied on W.V.S. Office Premises Limited v Currie in support of the argument that the provision of a “right in common” gave the respondents a right of common property as opposed to merely a common interest, but as the Lord President made clear in that case, at page 175:
“In every case it is necessary to consider the whole terms of the deed to see what the parties meant”.
38. The common law provides rules as to the allocation of the property in ‘common’ parts of a tenement in the absence of provision in the titles. The common law rule on which Mr Clark relied, that the ground surrounding a tenement property belongs to the lowest proprietor or proprietors, appears to us to be the starting point. The main question therefore comes to be whether the titles make any different provision. Mr Barne’s suggestion that the only alternative to all the proprietors having a right of common property was that all the proprietors had been given the same servitude right, so that the applicants did not have ownership of the garden, which would presumably then have to remain the property of the original proprietor of the whole building, does not seem to take account of the common law rule: if ownership has not been provided for, the common law position applies. Nor does it seem to make any sense. Whereas it would be natural for Mrs Ogilvy when selling the first floor flat in 1944, but retaining ownership of the others, to retain ownership of the garden, it seems inconceivable that the granters of the three conveyances in 1957 following sale of the remaining three flats which had been in the ownership of Mrs Ogilvy intended to retain any interest. The apportionment of all the feuduty among the four flat proprietors would seem to confirm that. The question, as a matter of construction, is whether the titles conferred rights of common property in the garden on all the proprietors, or left ownership of the garden ground to be ruled by common law, subject to a servitude right, or servitude rights, to use for drying clothes.
39. It is at first sight an attractive proposition that this right is a right of common property which was conferred as part of the dispositive provisions in each title, bracketed along with other “rights in common” which clearly do amount to common property, and this would explain the right being expressed in identical terms in each of the titles. Despite the common law rule, it is quite normal to find title provisions making the back garden or drying green of a tenement common property.
40. We have, however, reached the view that the position in this case is otherwise, for a number of reasons. Firstly, it seems to us that the garden ground is clearly distinguished in these titles from the solum of the building: by contrast with a right in common “to the solum”, there is a right in common “to use the garden ground” limited to one purpose, drying or bleaching clothes. This seems to us a strong indication of an intention to depart from the common law rule only in the case of the solum, providing a right less than ownership in relation to the garden. Secondly, there seems to be a consistent, though unexpressed, intention to let the matter rest on the common law position in relation to ownership of the ground, except in the case of the solum. We say that because there is also no express provision conferring ownership of the front or back basement areas on the basement flat, but such intention can be inferred from the provisions about the cellars: the ground and second floor flats each have a cellar conveyed “with access to said cellar by the stairway leading thereto from Fettes Row”, whereas the “area or basement flat” is described simply as “together with the westmost cellar”, without reference to access to it. Thirdly, while we appreciate that the sharing of the maintenance burden in respect of the garden among the three flats conveyed in 1957 might seem to point to common ownership, the right was first conferred, in the same terms and following the same deed structure, in 1944, when it was expressly declared that the disponee was not to be responsible for upkeep of the garden walls but was to contribute to upkeep of the steps leading to the garden. That points in the opposite direction. It would then be appropriate in 1957 to make provision in relation to maintenance, when it would be understandable that the full burden in relation to both the garden and the garden walls, in relation to which other proprietors had the right and perhaps also some common interest, should not fall on the basement flat (although it was too late to impose a share on the first floor flat).
41. As we have said, back gardens or drying greens are frequently owned in common. It is not necessary to explain why these titles are otherwise, but the particular sequence of events in relation to these properties may help to show that this result has some plausible rationale. It could well have been decided in 1944 not to convey a right of common property in the garden because that might involve substantial interference with the basement flat, there being no particular reason then for allowing more use of the garden than as a drying green. Then in 1957, in addition to that consideration, it may have been thought inappropriate, if not indeed slightly difficult to bring about, to confer rights of common property in the other flats when such was not enjoyed by the first floor flat.
42. Dispositive clauses of dispositions do, in our experience, commonly confer rights in servitude, at least positive servitudes, and such rights are, as in this case, included in the description of the property in the Property Sections of Land Register title sheets. Burdens clauses, and the Burdens Section of the title sheet, come later. So the position in the deed, and in the title sheets, of this right, is neutral as between common ownership and the benefit of a servitude.
43. As Mr Clark acknowledged, the identical provision in the applicants’ title seems inconsistent. We can, however, see this as something akin to a deed of conditions which might include common provisions, expressed as affecting every title, about use of individually owned units in the community. We do not find it necessary to explore the effect of inclusion of this provision in the applicants’ title on their ability to use the garden. For their claimed right of common property, the respondents require to look primarily at their own titles.
44. We also do not consider that reference to W.V.S. Office Premises Limited v Currie assists the respondents’ claim to common ownership of the garden. There was there reference to a ‘common passage’, with, as the court held, no reason to depart from the common law position that this would be common property, plus particular conveyances of rights in common ‘to’ the solum and the back green, so that the disponee had a right of common property in all these elements. Here, we are concerned with back garden ground, to which a different common law rule applies, plus particular conveyances of rights in common ‘to’ parts which do not include the part claimed by the respondents. There is therefore nothing in that case which points to the respondents in the present case having common property.
45. The right is said to include “right of access thereto by the existing back stair leading to the garden ground”. This seems to be a secondary right which would stand or fall with the main right. There may be a question as to its necessity, since there may already be some provision of rights in common in the route through the house to the garden, but that provision might not necessarily include the whole of that route. Even if it were shown to be unnecessary, we do not see how this would affect interpretation of the principal right.
46. In the second chapter of his submission, Mr Barne put the objection to our jurisdiction in a slightly different way. As we understood it, this submission was that the right was at least part of a composite provision which also involved rights of common property, so that, as in Dalby v Bracken, decided by the Tribunal in 2008, there was no jurisdiction. However, the right which the applicants seek to discharge in this case is the right to use the garden (with access to it). Having established that this is a servitude right and not a right of common property, the Tribunal is in a position to exercise jurisdiction in respect of this right. In Dalby v Bracken, the applicants were seeking discharge of their downstairs neighbour’s right of common property in the roof. There was also a right of access to that property, and in that sense there was a composite right, but the application essentially involved an attempt to bring the neighbour’s right of common property in the roof to an end.
47. We accordingly do consider, in agreement with the applicants’ position (and happily also in agreement with the ruling of the distinguished arbiter in 1967, although that ruling is not binding on us) that the applicants are sole owners of the garden ground, which is subject to this servitude right, and accordingly that we have jurisdiction to consider discharging it.
48. We express no view on the parties’ ownership rights in relation to the route to the garden, other than acknowledging that there has been at least a right of access to the garden in order to exercise the servitude right by that route rather than having to go round and access it from the back lane. We also express no view on ownership of the garden walls, or on common interest (as distinct from common property) in relation to the garden or the garden walls.
49. Reasonableness of application for discharge. Having regard to our view on ownership, we must approach the issue of discharge on the basis that the respondents are not being asked to give up rights of shared ownership of the garden (which, as well as including the right to sit at leisure in the garden, might in this case have involved a share in development value), but are being asked to give up the right to use the garden for drying clothes (bleaching being, we think, not really a modern issue).
50. Section 98 requires us to consider whether we are satisfied that the application is reasonable, and in doing so to have regard to the factors listed in Section 100, which includes “any other factor which the Lands Tribunal consider to be material”. We have to consider the evidence and submissions relating to the factors and then reach an overall view on reasonableness. The factors which are often of most importance are the purpose of the condition, and whether it is still relevant and capable of being fulfilled, the extent of the benefit and the extent of the burden.
51. Agreeing with Mr Barne, we do not consider it appropriate to decide, in the course of considering the reasonableness of the application, on Mr Clark’s submission that this servitude has prescribed and is no longer valid. Our declaratory jurisdiction under Section 90(i)(a)(ii) is specifically limited to two types of ‘title condition’ and is not applicable to servitudes. Applications for discharge can relate to title conditions or “purported” title conditions. We should accordingly consider the reasonableness of discharge on the assumption that this title condition subsists.
52. On the other hand, evidence of the extent of use of this positive servitude may be relevant, in particular in assessing the extent to which this title condition confers benefit on the benefited property (Section 100(b)). Obviously, this depends on circumstances. In the present case, the applicants point to the lack of any attempt to enforce this right. On the other hand, the respondents, as well as their predecessors for a good number of years, have simply been unable to exercise the right. We refer to our factual findings in this connection. The picture we have is that many proprietors were happy enough with the position; a few questioned it; the issue became contentious when a question of possible mews development, a matter unrelated to drying clothes, arose; Ms Scott and Ms Kim instructed solicitors to take the matter up; but they ultimately, we think understandably, did not wish to risk either the expense or the unpleasantness of raising proceedings, although they, and Mr Cole, have opposed this application.
53. Factors such as the extent of benefit are to be assessed objectively. We did not get the impression that either Ms Scott or Ms Kim was very much exercised by the inability to use the garden to dry clothes. Ms Scott seemed more concerned with ownership of the garden (which we have held she does not have), and frankly admitted in an answer to a question by the Tribunal that although she would like to use the garden for drying clothes, she found it hard to say what her main reason for holding onto this right was. We do not consider the evidence about sales particulars persuasive, because reference to this right might simply serve to unearth the element of uncertainty in the title, not something which a selling agent would want to do. From all the evidence about the extent of use, and also the references to modern habits and approaches to drying clothes and caring for the environment, we conclude that many owners would not find the right to use the garden for drying clothes of much value but some would wish at least some of the time to exercise it and would be concerned by its loss.
54. Factor (c), the extent to which the condition impedes enjoyment of the burdened property, presents certain difficulty in this case. As Mr Barne submitted, this also should be viewed objectively. Clearly, the servitude prevents enjoyment of the garden as a private (albeit overlooked) space. Gardens, and privacy, are valued in central urban locations. However, the right might, as a matter of fact, not be exercised by many proprietors or with much frequency and therefore in that respect not be thought unreasonably burdensome. On the other hand, whichever stairs are referred to in the expression of the right (i.e. the internal stairs down or the stairs up from the patio area), the right involves access through the basement and not from the rear lane. It thus involves intrusion into the basement. We heard, for example, that the situation of young children using the basement toilet caused the applicants concern. If this right did not exist but there was nevertheless common ownership of the route down the stairs and through the garden room, we would expect intrusion into the basement to be rare, arising only in relation to maintenance or emergency situations. Accordingly, and looking at the matter objectively, for example with reference to a hypothetical purchaser, the existence of the right to use the garden regularly to dry clothes does seem to have a sizeable impact on enjoyment of the basement flat.
55. We do think that there has been some change of circumstances since the right was created (factor (a)). Modern equipment makes it (apart from environmental considerations, which some take seriously) not so necessary to dry clothes outdoors, and modern flats are often built without that facility. The evidence also touched on concerns about security. It may be that a laxer approach to allowing free movement around the basement has given way to more concern about the security of buildings. However, this primarily relates to rights within the basement, and we would have thought that it would be reasonable to anticipate a requirement for doors to be locked and keys used if the right to use the garden were retained. Factor (a) gives some limited support to the applicants’ position. Factor (e), the length of time since the condition was created, tends really to be linked to general change which may be thought to affect the condition in question, and in this case does not appear to add anything to consideration of factor (a).
56. As to factor (f), the purpose of this title condition seems clear. It is to enable the upper flat occupiers to dry clothes outdoors. Negatively, it might be said that, by comparison with making ownership common, this is, for whatever reason, a limited purpose. It does seem a less important requirement these days. On the other hand, and again assuming that the right was allowed to be exercised, it remains a purpose which can be fulfilled and current concerns for the environment and fuel economy might suggest that it has become slightly more relevant today than in the more recent past.
57. The applicants are not able to point to any public consent for use which the condition would prevent (factor (g)). Even if there were to be planning consent for a mews development and the basement flat owners’ title permitted that without the consent of other owners, it would presumably still leave some garden ground in which clothes drying could take place.
58. It was indicated that the applicants were willing to pay compensation (factor (h)), presumably of such amount as the Tribunal might award in the event of an application under Section 90(6) and (7). This does not really add to what would happen anyway in the event that the Tribunal decided to grant the application and the respondents submitted claims for compensation, so it is really a neutral factor in this case. It should be remembered that compensation would only be in respect of any substantial loss resulting from removing the right to use the garden for drying clothes. There can be situations in which a discharge or variation does cause some loss yet may still be considered reasonable, on the basis that the situation could reasonably be met by an award of compensation rather than requiring refusal of the application.
59. Having dealt with Mr Clark’s submission on prescription, and one other matter referred to by Mr Barne under factor (j), we do not consider that there are any other material factors. We should mention that there was reference to access to the rear of the building for maintenance or emergency purposes, but the position about that would not be affected by our decision either way on discharge of the right to use the garden for drying clothes.
60. Overall, we have reached the view in all the circumstances that while discharge will cause some slight disadvantage to the other flats, it is in this case reasonable. We think that the limited right to use the garden to dry clothes is, these days, not generally regarded as having any significant value. These flats no doubt differ from modern flats, but we think that most purchasers would put up with lack of this facility with equanimity. Indeed, the evidence seems to support that, as we did not understand either Ms Scott or Ms Kim, from whom we heard directly, or anyone else about whose views we heard indirectly, to be particularly concerned with drying clothes. There was positive evidence the other way from Ms McLean. Then, while the applicants cannot positively rely on the situation which they have created by in effect ignoring the servitude, we do think that its existence (assuming it has not prescribed) is, in the particular circumstances, quite burdensome. We do proceed on the basis that the purpose of the condition could still be fulfilled notwithstanding the present physical obstacles, but we think that there has been some relevant change over the years. We have in the end been persuaded that it would be reasonable to discharge this servitude.
61. Conclusion. For these reasons, we allow this application. If there is any issue about expenses, that can be considered by the Tribunal, in accordance with normal practice, 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 on 19 May 2009
Neil M Tainsh – Clerk to the Tribunal