Heritable Property – Title Conditions – Discharge or Variation – Real Burden – ‘Split-off’ disposition for new house in garden – Building Conditions – Dwellinghouse not to exceed 1 storey in height – Proposal to extend upwards – Reasonableness – Application refused – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Discharge or variation – Expenses – No reason not to award expenses to successful respondents – Sanction for counsel refused – Title Conditions (Scotland) Act 2003, Section 103(1)

Steven Corry & Anr v Derek Maclachlan & Anr
9 July and 7 October 2010

The applicants had purchased part of the garden ground of the house now owned by the respondents, in order to build a house, in 1984. The disposition contained building conditions requiring the applicants to erect a house not exceeding one storey in height. They now proposed, and had planning permission, to extend upwards, adding another storey. They applied for variation, accepting that the conditions involved a continuing building restriction with which their proposal did not comply.

The Tribunal considered that, although the setting of the respondents’ house was already considerably affected by the proximity of the applicant’s house, the protection from this proposal to build higher, in line with the clear and very particular purpose of the title condition specifically accepted by the applicants themselves, amounted to a substantial benefit to the respondents. On a consideration of all the factors listed in Section 100 of the Act in the particular circumstances, including that the applicants had planning permission and that the burden represented some impediment to their enjoyment of their property, the Tribunal was on balance not satisfied that the application was reasonable.

The applicants opposed the respondents’ claim for their legal expenses and sanction for the employment of junior counsel. The Tribunal considered that it was entirely reasonable for the respondents to have legal representation and there was no reason why, having been successful, they should not receive expenses. The case was not, however, of such legal or factual complexity as to justify sanction for the employment of counsel.

Main authority referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15

See full decision:  LTS/TC/2009/28 (Merits) and LTS/TC/2009/28 (Expenses)