Trevor Barr and James Sharp v Annabel Macrae

[1] Three applications have been made under Section 90(1)(b)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), following a Notice of Termination under the ‘Sunset Rule’ intimated by the respondent, in relation to two real burdens contained in a 1908 disposition. That was a disposition in favour of the owner of a villa, Hartley House, Dunfermline, of an area of ground to the west of the villa. The villa has since been divided into two ownerships, the area of ground now being in the ownership of the respondent as owner of the lower part. She wishes to build an additional house on the area of ground. Two applications to renew the burdens are brought by Mr Barr, the first as owner of the upper part of the villa and the second as owner of one of eight flats in a divided house, Viewfield House, immediately to the north of the area of ground. The third application is brought by Mr Sharp as the owner of another of these eight flats to the north.

[2] The respondent (who in fact intimated the Notice of Termination to different proprietors who she considered to be benefited under the burdens) requested the Tribunal to rule on certain preliminary objections to the applications. The Tribunal agreed to issue a preliminary ruling on the question, in each of the three applications, whether the applicant was a benefited proprietor entitled to enforce the burdens. The Tribunal suggested that these matters might be disposed of by written submissions rather than an oral hearing and the parties have agreed to follow this procedure. Parties were required to lodge written submissions specifying the legal grounds on which it was submitted that there was, or was not, title to enforce. The respondents’ submissions in fact then accepted that Mr Barr as proprietor of the upper villa flat was benefited. That application by him will therefore require to proceed on the merits. It is accordingly necessary only to consider the submissions that Mr Barr and Mr Sharp, as owners of flats in the neighbouring property, are not benefited.

[3] There is no distinction between the two applications in relation to this issue. There are, however, differences between the two burdens. It is necessary to consider them separately.

[4] Both burdens were contained in a Disposition by Trustees of Robert Taylor in favour of Alice Mary Sophia MacLaren or Marshall, recorded in the Dunfermline Burgh Register on 14th December 1908. It is clear from the terms of this disposition that the trustees retained the property immediately to the north of the area of ground disponed, and it can be inferred that this retained property was Viewfield House.

[5] The first burden was expressed as follows:-

“(First) In respect that under the existing titles of feuars and proprietors at Viewfield Terrace granted by the said deceased Robert Taylor he undertook not to erect or permit to be erected ‘any buildings on that portion of my said property (including the subjects before disponed and coloured pink on the said plan) of Viewfield which lies opposite to the pieces of ground thereby disponed between Viewfield Terrace on the south and a line drawn parallel to and at a distance of forty feet south from the south wall of Viewfield House on the north’, the above quoted restriction shall also apply to our said disponee and her foresaids and the subjects hereby disponed and she and her foresaids shall not be at liberty in time coming to erect any buildings on the said subjects hereby disponed or to use the same for any purpose which may be prejudicial to the amenity of the district;”

[6] The respondent, having all along maintained that none of the flat proprietors at Viewfield House had third party rights to enforce either of the burdens, submits that neither party has title. Reference is made to their registered titles, which are not burdened with the burdens created in the 1908 title. It is submitted that there is no implied ius quaesitum tertio in Scots Law.

[7] In the course of their pleadings, i.e. answers to the respondents’ representations opposing the applications, the applicants had pointed out that Viewfield House is situated immediately to the north of the plot of the subject ground and that the proposed development would impinge directly on all the flats in Viewfield House; and that “by implication Viewfield House does have a right to enforce the 1908 title at the very least in terms of Section 53 under the Title Conditions (Scotland) Act 2003”. There is also a reference to third party rights. Their subsequent written submissions, however, add nothing in relation to this first burden, making points only in relation to the second burden.

[8] In my opinion, the issue in relation to Burden (First) has nothing to do with ius quaesitum tertio or the provisions in either Section 52 or Section 53 of the Act in relation to common schemes. This was a provision by an owner of land who had previously, upon feuing a number of plots in the vicinity, those around Viewfield Terrace, undertaken not to build on a specified area of his remaining land, expressly imposing this restriction on the purchaser of that area (or perhaps part of it). There were no similar burdens over the plots previously feued. The rules in Hislop v MacRitchie’s Trustees 1881 8R (HL) 95 would in my view be of no application.

[9] Rather, the issue is whether the rule in J. A. Mactaggart & Co v Harrower (1906) 8 F 1101, might apply since this was a burden created in a disposition by an owner who retained neighbouring land, and if so, whether it might have any continuing application under the Act. The common law in relation to implied burdens may still have some effect, until November 2014, under Sections 49 and 50 of the Act. However, I think, particularly as I have received no submission on this basis, that the correct approach to this difficult rule, would be a restrictive one which would not have the effect of extending the benefit of the burden. In my view, the correct interpretation of this provision is therefore that this was not an imposition of a new burden in favour of the disponer as owner of the neighbouring land but rather confirmation of the application of a burden under which the land disponed had been burdened. In other words, in relation to this burden, the benefited proprietors were and remained the owners of the adjoining feus in Viewfield Terrace, so that the implication of benefit to the disponer is negatived.

[10] On that view, the owners at Viewfield House were not benefited on the passing of the Act and could not be benefited under the Act. These two applicants as owners of flats at Viewfield House have no title to apply to renew this burden.

[11] I should add that the fact that this burden is not identified in the registered titles of the putatively benefited properties would not have prevented them from having title to enforce it, under the previous law which might have continued to apply under the Act for a temporary period. These burdens are narrated in the Burdens Section of the respondent’s registered title, although that of course, in the case of an old burden, often, as here, does not answer the question as to who has title to enforce.

[12] The second burden was expressed as follows:-

“(Second) Our said disponee and her foresaids in dealing with or laying out the subjects hereby disponed shall be and are hereby expressly prohibited from rearing or planting any trees opposite the south front of said Viewfield House and between such front and Viewfield Terrace on the south, which may in the opinion of us or our successors be fairly calculated to impair the light in the windows in said front or reduce the letting value of said Viewfield House;”

[13] In addition to the submissions recorded above, the respondent further argues in relation to this condition that trees were planted many years ago and are now mature, so that, it is submitted, any remedy to enforce the burden “has long expired by acquiescence”. That is of course partly an assertion of fact, but it can perhaps be taken as accepted from photographs lodged by both sides that there are a number of established trees on the ground although there also appears to have been some element of disagreement in recent years about bushes and their height.

[14] The applicants submit that a ius quaesitum tertio exists to enforce the second burden. They state that the reason for this burden is not to impair the light in the windows on the south front of the property at Viewfield House nor to reduce the letting value of the property and as such a ius quaesitum tertio is applied.

[15] Once again, I do not consider that this is an issue of ius quaesitum tertio. The question, again, is whether the disponer had, as a matter of implication, title to enforce, and if so whether the applicants as successors of the disponer, have title even after the commencement of the Act.

[16] In my opinion, this burden is in a different position. This appears to me to be a straightforward provision in a disposition in favour of the retained land. That could be a matter of implication under the rule in Mactaggart, and in this case the wording of the provision appears to confirm the implication in the references to Viewfield House. The building restriction was in favour of the feuars in Viewfield Terrace, but this restriction on growing trees which would adversely affect the amenity of Viewfield House seems clearly enough to be in favour of the proprietor of Viewfield House. The disposition expressly created this burden as a real burden and it has been incorporated into the respondent’s title. There is no material on which it could be said not to have passed to the benefit of all the proprietors on division of the property, that division having occurred before the commencement of the Act.

[17] The burden was not a feudal burden, but Sections 49 and 50 of the Act may apply: as an implied right of enforcement, in existence at the commencement of the Act, not apparently subject to any notice of preservation under Section 50, the right would subsist for the period of 10 years from the “appointed day” under the Act, i.e. 28 November 2004.

[18] If the burden has been breached by the planting of trees in the past, it may very well be that any remedy for past breach of the burden will have been extinguished by acquiescence, but that does not extinguish the burden, either under the previous law or under Section 16 of the Act.

[19] In these circumstances, in my opinion, the applicants do at present continue to have title to enforce Clause (Second).

[20] Accordingly, my decision is that these applications will be restricted to applications for renewal of Clause (Second) of the Disposition of 1908. Whether the applicants, or both of them, as proprietors of flats in Viewfield House, retain any real interest to enforce this burden is another question. One can readily imagine that the past planting of trees will be relied on as a factor under Section 100 of the Act. It might, however, be thought that there was a valid continuing purpose of protecting Viewfield House owners, or some of them, from disturbance of their amenity by the planting of trees which impair their light, unless of course this has already become an established fact. The respondents’ main concern appears to be their wish to build another house. Both parties may wish to consider whether they really have any need to continue this particular dispute.

[21] If matters are not resolved, the three applications (two restricted in line with this decision) will be considered at an oral hearing, followed by a site inspection, to be arranged as soon as possible. I would, however, take the opportunity to mention that both sides’ pleadings (but perhaps particularly the applicants’) contain material about past disputes, present motivations, etc. which will have no part to play in the Tribunal’s decision. I express the hope that parties will confine their evidence to matters which are relevant to whether, viewed objectively, the applications to renew the burdens are reasonable.

[22] Parties should remain open to the possibility of variation, rather than renewal, of the burdens, i.e. some limitation short of outright prohibition of housebuilding, if only as an alternative argument. Clear notice of the terms of any proposed variation should be given in advance of the hearing.

[23] I would also express the hope that parties will consider whether negotiation, or some other alternative form of resolution, such as mediation, might in fact provide a more economic, satisfactory, comprehensive and durable resolution of differences which obviously exist between them, than the present proceedings.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 November 2010

Neil M Tainsh – Clerk to the Tribunal