Heritable Property – Title Conditions – Real burden – Discharge or variation – Validity and enforceability – Prematurity of application – Land certificates not yet issued – Restrictions on parking in courtyard when historic house property divided – Mutual restrictions intended but only imposed on one property – Condition held unenforceable – Discharge held reasonable – Expenses – Title Conditions (Scotland) Act 2003, Sections 8(3), 90(1)(a)(i) and (ii), 98, 100, 103(1)

Kevin Clarke & Anr v Sigrid-Kristin Grantham
18 September and 27 October 2009

In a break-off disposition of part of a historic house property, the disponees were prohibited from parking vehicles in a specific area of a courtyard. The disponers bound themselves to insert a similar condition in any disposition of the retained property, but failed to do so. In an application for discharge, and also to determine that the burden was not valid or enforceable, the respondent defended the validity and enforceability and also opposed discharge while herself asserting her right to park in the corresponding part of the courtyard.

The Tribunal rejected an argument that the application was premature because land certificates had, for some unknown reason, not yet been issued for the two properties. The applicants’ argument that the burden was unenforceable for lack of precision was also rejected. It was held, however, that with the obligation to insert a similar condition in the respondent’s title not complied with, it could not be said that failure to comply with the condition would result in material detriment to the value or enjoyment of the respondent’s property.

On the assumption that the burden was valid and enforceable, it would be reasonable to grant the application. The burden was not at all onerous to the applicants but also of little benefit to the respondent. It might again become live. It would be reasonable to remove that uncertainty in the applicant’s title.

The respondent opposed the applicants’ claim for expenses on the ground that the basis of the applicants’ success had not been as set out by them. The Tribunal, however, held that although not all the applicants’ submissions had succeeded, no significant additional expense had been caused and there was no reason not to award expenses to the applicants whose application had succeeded.

Authorities referred to:-

Tailors of Aberdeen v Coutts (1840) 1 Robb 296
Anderson v Dickie 1915 SC (HL) 79
Lothian Regional Council v Rennie 1991 SC 212
Ord v Mashford 2006 SLT (Lands Tr) 15
Barker v Lewis 2008 SLT (Sh Ct) 17
Land Registration (Scotland) Act 1979

See full decision:  LTS/TC/2008/49 (Merits) and LTS/TC/2008/49 (Expenses)