Heritable Property – Title Conditions – Discharge or variation – Jurisdiction – Dispositions – Rights to use garden ground for purposes of drying clothes – Whether ownership in common or title condition – held, title condition – Title Conditions (Scotland) Act 2003, Section 90(1)(a)(i)

Heritable Property – Title Conditions – Discharge or variation – Servitude rights to use garden ground for purposes of drying clothes, with access thereto through basement – Basement proprietor seeking discharge – Whether reasonable – Circumstances in which discharge granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

James McKenzie & Anr v Hilary Scott & Ors
19 May 2009

Successive dispositions of the 4 flats in a tenement, including a basement flat, conferred a “right in common” along with the other proprietors, “to use the garden ground behind 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.” The basement proprietors, who had developed the back green into an attractive garden area, sought discharge. Two of the upper proprietors argued that the title provision amounted to common ownership and not a title condition, so that the Tribunal did not have jurisdiction; and in any event that the application was not reasonable. There were also problems, not the subject of this application, about ownership of the basement area some of which had become incorporated into the basement flat.

The Tribunal held that although either construction of the provisions was theoretically possible the provisions amounted to servitude rights, with ownership of the garden ground following the common law rule and going with the basement. The application was accordingly competent. On the merits, the servitude had been little used, attempts by some respondents to assert rights being apparently more connected with a question of possible mews development. The benefit of the right to use the garden for drying clothes was in modern times limited. In the particular circumstances, exercise of the right involved intrusion making a sizeable impact on enjoyment of the basement property. Having regard to the factors listed in section 100, the application was in the particular circumstances reasonable.


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’n), para 11–26

See full decision:  LTS/TC/2008/12