Heritable Property – Title Conditions – Real burdens – Enforceability – Interest to enforce – Feu Disposition by developers of housing estate in favour of ‘Greenbelt’ company – Obligations to plant, establish and maintain amenity woodland – Houseowners not having rights to use or obligations to maintain – Whether ‘facility burdens’ so as to remain enforceable following abolition of feudal tenure – “constitutes, and is intended to constitute, a facility of benefit to other land” – Title Conditions (Scotland) Act 2003, Sections 8(3), 56, 122
Amenity ground on the edge of a housing development was not the subject of provision in the relevant deed of conditions and had been transferred by feu disposition to a ‘Greenbelt’ company, subject to real burdens obliging the company to plant, establish and maintain this land as amenity woodland. Planning permission for further housing having been obtained, the applicants sought a determination that the burdens had been extinguished upon the abolition of feudal tenure. They argued that the burdens were not ‘facility burdens’ as defined by Section 122. One of the householders, whose property adjoined the amenity land, opposed the application but made no relevant submissions on the issue whether the burdens remained enforceable.
The Tribunal considered that the case raised an important question about the dividing line between facility burdens and “mere” amenity burdens. Because the land apparently comprised amenity screening for a housing development, they were not satisfied that there was not a “facility of benefit to other land”. However, on a consideration of the terms of the disposition, together with evidence of the surrounding circumstances (considered admissible, as in an issue as to the purpose of a burden – cf Teague Developments Limited), they accepted that it was not “intended to constitute” such a facility: as well as the fact that the land was outside the scheme of community burdens, a right of redemption had been given, and there had also been reference in the feu disposition to the possibility of planning permission for further houses. The Tribunal would not have accepted the argument that the neighbouring proprietors had no interest to enforce: the test under section 8(3) was normally to be considered in the context of an actual breach, and in the absence of further detail of the proposed further housing development it could not be asserted that there would be no “material detriment” to the respondents.
Barker v Lewis 2008 SLT (Sh Ct) 17
Teague Developments Limited v City of Edinburgh Council, 27.2.2008, LTS/AFT/44/2007/02, LTS/TC/2007/41
PMP plus Ltd v Keeper of Registers of Scotland 2009 SLT (Lands Tr) 2
Clarke & Anr v Grantham, 18.9.2009, LTS/TC/2008/49
Scottish Law Commission Report on Real Burdens, No 181
Reid, Abolition of Feudal Tenure in Scotland
See full decision: LTS/TC/2008/30