Heritable Property – Title Conditions – Discharge or variation – Community burdens at mixed office and flatted development – Maintenance and renewal of entrance, passage and stairs, etc, to which office property had no access – Office proprietor seeking to reduce proportion of expense payable by him – Reasonableness – Application refused – Title Conditions (Scotland) Act 2003, Sections 90(1)(a)(i), 98, 100

Bryan Kennedy v Abbey Lane Properties
29 March 2010

A deed of conditions dated 2004 split common parts liabilities at a mixed office and flatted development into three parts. One part covered inter alia the entrance, passageways and stairs to the flats, none of which were accessible to the office proprietor although he was liable for a proportion of that expense. He applied for partial discharge and variation, arguing that the burden on him was not fair or equitable and unlike conditions in similar developments. An owner of 3 flats opposed the application, which was, by agreement, disposed of on written submissions and a site inspection. (No point was taken, or considered by the Tribunal, as to the competency of an application which might have the effect of increasing the liabilities of other owners.)

The Tribunal was not satisfied that the application was reasonable. It was accepted that the allocation appeared unusual and potentially unfair. However, the deed was recent, workable and not seriously inequitable. There was no indication as to whether the percentage allocation to the applicant’s property might have been higher but for this liability. There was no material economic prejudice to the applicant. There may have been an intentional ‘broad brush’ approach to liabilities.

Authorities referred to: None

See full decision:  LTS/TC/2009/26