Heritable Property – Title Conditions – Discharge or variation – Compensation – Building Restriction – Whether title condition produced effect in reducing consideration then paid for burdened subjects – Claim based on ‘hope value’ – Insufficient evidence – Title Conditions (Scotland) Act 2003, Section 90(7)(b)

Francis Faeley & Anr v Elizabeth Doull and Ors
19 November 2010

The respondent was benefited under a real burden restricting building on the applicants’ property to the erection of one house. As considered in an earlier decision, LTS/TC/2005/30, involving this and another building restriction, the respondent’s property was not particularly affected by the applicant’s proposal to build another house and agreement had eventually been reached on that. The respondent, however, claimed that when she and her husband sold the land to a builder, there would have been additional value without the building restriction. It was accepted that there had been planning obstacles at that time and that any such value would be ‘hope value’. The other building restriction would also have required consideration.

The claim was determined on the basis of written submissions and materials including some correspondence at the time sale of the land, which correspondence did not, however, make any reference to any such additional value. There was no expert valuation evidence.

The Tribunal held that the necessary basis in evidence was lacking: on the material submitted, hope value was not established; nor, in any event, the amount of any such value; nor, in any event, that it had actually had the effect of reducing the price paid.

Authority referred to:-

Young v City of Edinburgh Council, LTS/COMP/2000/1, 27.3.2001

See full decision:  LTS/TC/2008/40