Heritable Property – Title Conditions – Real burdens – Title to enforce – Building restriction – Prohibition of Trees – ‘Split off’ disposition in 1908 – Notice of termination under ‘Sunset Rule’ – Whether neighbouring proprietors, as successors of original disponer, had title to enforce and to apply for renewal – Rule in J.A. Mactaggart & Co v Harrower – Whether benefits imposed in favour of disponer as owner of neighbouring land – Whether title subsisting – Title Conditions (Scotland) Act 2003, Sections 49, 50

Trevor Barr & Anr v Annabel Macrae
30 November 2010
LTS/TC/2009/37, 38, 39

In applications for renewal of burdens referred to in a Notice of Termination under the ‘Sunset Rule’, questions arose as to the title of the applicants to enforce the burdens and therefore apply for renewal. A 1908 ‘split-off’ disposition had narrated two burdens. Firstly, in relation to a building restriction, it was narrated that the burden had previously been undertaken in titles granted to owners in an adjoining terrace and was to continue to apply to the disponee in this disposition. Secondly, in relation to a prohibition of trees, the burden was created in the disposition and expressly referred to impairment of light in the existing house on the retained land. The applicants were successors of the disponer. These preliminary issues were decided on the basis of written submissions.

The Tribunal considered that the issues were not issues of ius quaesitum tertio, or burdens under a common scheme, but rather issues of the application of the rule in J.A. McTaggart & Co v Harrower. In the case of the building restriction, the benefited proprietors were and remained the proprietors of the feus in the adjoining terrace, so that the implication of benefit to the retained land was negative. In the case of the prohibition of trees, however, the wording of the provision confirmed the view that it was a straightforward provision in favour of the retained property. In consequence, the applicants had title, subsisting at least for a period under Sections 49 and 50 of the 2003 Act, in relation to the second, but not the first, burden. The applications would proceed on that basis, along with an application by another proprietor who admittedly did have title to enforce.

Authorities referred to:-

Hislop v McRitchie’s Trs 1881 8R (HL) 95
J. A. Mactaggart & Co v Harrower 1906 8F 1101

See full decision:  LTS/TC/2009/37, 38, 39